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Anderson v. Kimbrell

United States District Court, E.D. California

April 22, 2015

DION ANDERSON, Plaintiff,
v.
M. KIMBRELL, et al., Defendants.

FINDINGS AND RECOMMENDATION REGARDING DISMISSAL OF SECOND AMENDED COMPLAINT (ECF No. 27) 21-DAY DEADLINE

DENNIS L. BECK, Magistrate Judge.

I. Background

Plaintiff Dion Anderson ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil action pursuant to 42 U.S.C. § 1983. On March 15, 2013, Plaintiff filed the Complaint. On October 18, 2013, the Court screened and dismissed the complaint with leave to amend for failure to state a cognizable claim for relief. On November 12, 2013, Plaintiff filed a motion for reconsideration. The motion for reconsideration was denied on January 3, 2013. Plaintiff appealed to the Ninth Circuit Court of Appeals, and the appeal was denied on March 24, 2013. On February 6, 2014, Plaintiff filed a First Amended Complaint. Plaintiff filed a motion for leave to file a Second Amended Complaint on March 24, 2014, along with a lodged Second Amended Complaint. On August 26, 2014, the Court granted Plaintiff's motion and ordered the Second Amended Complaint to be filed. The Second Amended Complaint is presently before the Court for screening.

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. Id. § 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." Id. § 1915(e)(2)(B)(ii).

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. (quoting Twombly, 550 U.S. at 570). While factual allegations are accepted as true, legal conclusions are not. Id.

II. Summary of Complaint

Plaintiff was incarcerated at Corcoran State Prison ("CSP") in Corcoran, California, where the events giving rise to this action occurred. Plaintiff names as Defendants: M. Kimbrell (litigation coordinator), A. Gultierez (mailroom supervisor), and T. Jones (trust account supervisor).

Plaintiff alleges the following. On April 4, 2012, Plaintiff was issued a Rules Violation Report ("RVR") for assaulting a correctional officer. On April 24, 2012, Plaintiff was found guilty by the Senior Hearing Officer and his case was referred to the Kings County District Attorney's Office for criminal prosecution.

On July 7, 2012, Plaintiff initiated a grievance that was classified as a general appeal. Plaintiff also initiated a civil action in the Kings County Superior Court. Plaintiff was notified that he was required to file a state tort claim within a given amount of time. On September 20, 2012, Plaintiff sent via mail his original government claim with two copies attached to CSP's Trust Department, requesting that they process the Fee Waiver Application that was enclosed. Plaintiff also sent via mail additional copies to the Kings County Superior Court and the Deputy Attorney General for verification of Plaintiff's timely filing. However, on September 27, 2012, Plaintiff's original documents with attached copies were returned by CSP's Litigation Coordinator, Defendant Kimbrell, specifying that Plaintiff needed to attach an unspecified fee waiver form that did not accompany the general claim form.

On September 27, 2012, Plaintiff rerouted the documents back to the Trust Office, and he had Officer Hayward verify on a CDCR-22 form that Plaintiff had hand-delivered his legal mail to him on this date. Plaintiff also sent via mail a partial copy of his original documents to the State Board in order to effect timely submission and to receive a case number. He also notified the State Board that his fee waiver and originals would arrive shortly.

On October 15, 2012, Plaintiff was notified by the State Board that his submission had been received and his case number assigned; however, the State Board had not received a Fee Waiver. Subsequently, Plaintiff filed a 602 to the CSP Appeals Coordinator. The appeal was returned advising Plaintiff that it was his fault that no Fee Waiver was received by the State Board and that Plaintiff had shown no evidence that the mailroom, Trust Office, or Litigation Coordinator were responsible for intentional loss or destruction of his documents.

On November 29, 2012, Plaintiff was charged in the Kings County Superior Court for assault, but the case was later dismissed.

Plaintiff requests ...


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