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Porter v. Biter

United States District Court, E.D. California

April 9, 2015

KENTHY KYLE PORTER, Plaintiff,
v.
MARTIN BITER, Defendant.

FINDINGS AND RECOMMENDATIONS TO DISMISS CASE, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM (Doc. 14.) OBJECTIONS, IF ANY, DUE WITHIN THIRTY DAYS

GARY S. AUSTIN, Magistrate Judge.

I. BACKGROUND

Kenthy Kyle Porter ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on May 28, 2013. (Doc. 1.) The court screened the Complaint pursuant to 28 U.S.C. § 1915A and issued an order on October 17, 2013, dismissing the Complaint for failure to state a claim, with leave to amend. (Doc. 11.) On November 20, 2013, Plaintiff filed the First Amended Complaint. (Doc. 14.) On June 4, 2014, the court dismissed the First Amended Complaint for failure to state a claim, with leave to amend. (Doc. 16.) On June 30, 2014, Plaintiff filed the Second Amended Complaint, which is now before the court for screening. (Doc. 17.)

II. SCREENING REQUIREMENT

The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious, " that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that the action or appeal fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).

A complaint is required to contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)). While a plaintiff's allegations are taken as true, courts "are not required to indulge unwarranted inferences." Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). Plaintiff must set forth "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Iqbal 556 U.S. at 678. While factual allegations are accepted as true, legal conclusions are not. Id.

To state a viable claim for relief, Plaintiff must set forth sufficient factual allegations to state a plausible claim for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Id.

III. SUMMARY OF SECOND AMENDED COMPLAINT

Plaintiff is presently incarcerated at Salinas Valley State Prison (SVSP) in Soledad, California, in the custody of the California Department of Corrections and Rehabilitation (CDCR). The events at issue in the Second Amended Complaint allegedly occurred at Kern Valley State Prison (KVSP) in Delano, California, when Plaintiff was incarcerated at there. Plaintiff names as defendants the CDCR and Captain R. Davis (CDCR Appeals Examiner). Defendants were employed by the CDCR at the time of the events at issue. Plaintiff's factual allegations follow, in their entirety.

"I requested the permission of my then correctional institution to legally change my name in accordance with my Islamic faith. I explained that my current legal' name was religiously offensive to me as it reflected my former state as a non-Muslim. Further as Porter' is my adopted last name, using it violated the Islamic prohibition of claiming or attributing fatherhood to one who is not in fact one's true father. As CDCR does not allow inmates to use names not legally their own, I appealed this matter using my institutional appeals system, up to the Directors (of CDCR) level. I explained again here that the continued use of my current name violated not only my religious convictions. Not allowing me to change it prevented me from fully and truly practicing my Islamic faith. R. Davis, who did review my final level appeal on behalf of the Director of the CDCR was made fully aware of my desire and need to change my name in accordance with my religious beliefs. His denial of my third and final institutional appeal constituted his and the CDCR's denial of my request to legally change my name."

(Second Amended Complaint ("SAC") at 3-4 ¶IV.)

Plaintiff requests injunctive relief via a court order legally changing his name to Muhammad-Khaliq Ibn Al-Amriki, and an order requiring the CDCR to allow him full use of the new legal name. Plaintiff also requests costs of litigation and attorney fees.

IV. PLAINTIFF'S CLAIMS

The Civil Rights Act under which this action was ...


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