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Webb v. Lopez

United States District Court, E.D. California

April 13, 2015

DONNELL WEBB, Plaintiff,
v.
J. LOPEZ, et al., Defendants.

ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A CLAIM (ECF NO. 10) THIRTY DAY DEADLINE

MICHAEL J. SENG, Magistrate Judge.

Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983. (ECF Nos. 1 & 12.) Plaintiff has consented to Magistrate Judge jurisdiction. (ECF No. 4.)

The Court screened Plaintiff's Complaint and dismissed it for failure to state a claim but gave leave to amend. (ECF No. 5.) Plaintiff's First Amended Complaint (ECF No. 10.) is now before the Court for screening.

I. 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, malicious, " or 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 on which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).

II. PLEADING STANDARD

Section 1983 "provides a cause of action for the deprivation of any rights, privileges, or immunities secured by the Constitution and laws' of the United States." Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) ( quoting 42 U.S.C. § 1983). Section 1983 "is not itself a source of substantive rights, ' but merely provides a method for vindicating federal rights conferred elsewhere.'" Graham v. Connor, 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144, n. 3 (1979)).

To state a claim under Section 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution and laws of the United States was violated and (2) that the alleged violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); see also Ketchum v. Cnty. of Alameda, 811 F.2d 1243, 1245 (9th Cir. 1987).

A complaint must 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 (2009) ( citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Id. Facial plausibility demands more than the mere possibility that a defendant committed misconduct and, while factual allegations are accepted as true, legal conclusions are not. Id.

III. PLAINTIFF'S ALLEGATIONS

Plaintiff names as Defendants Officer J. Lopez and North Kern State Prison ("NKSP").

Plaintiff alleges essentially the following:

There was a racially motivated riot at NKSP. Officer Lopez left his assigned post during the riot, leaving behind his flashlight. The flashlight was later used to attack Plaintiff. After the riot, NKSP placed Plaintiff back into a dorm with his attackers.

Plaintiff filed a CDCR 22 Form with respect to the above. It has gone unanswered in violation ...


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