Marlow v. Davis

          ORDER OF SERVICE ORDER DIRECTING DEFENDANTS TO FILE A DISPOSITIVE MOTION OR NOTICE REGARDING SUCH MOTION

          JOSEPH C. SPERO CHIEF MAGISTRATE JUDGE

         INTRODUCTION

         In this federal civil rights action brought under 42 U.S.C. § 1983, plaintiff, a state prisoner proceeding pro se, alleges that correctional officers at San Quentin State Prison violated his First Amendment rights by threatening to retaliate against him.^[1] The initial complaint was dismissed with leave to amend. The first amended complaint (Docket No. 22) is now before the Court for review under 28 U.S.C. § 1915A(a).

         The first amended complaint states cognizable claims against one defendant, Correctional Sergeant T. Jackson. Therefore, in response to the operative complaint, defendant is directed to file a dispositive motion or notice regarding such motion on or before September 26, 2016. The Court further directs that defendant is to adhere to the notice provisions detailed in Sections 2.a and 10 of the conclusion of this order.

         DISCUSSION

         A. Standard of Review

         A federal court must conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek monetary relief from a defendant who is immune from such relief. See Id . § 1915A(b)(1), (2). Pro se pleadings must be liberally construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988).

         A “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting Twombly, 550 U.S. at 556). Furthermore, a court “is not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged.” Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or 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).

         B. Legal Claims

         Plaintiff alleges that in 2014 and 2015 various San Quentin prison guards threatened to kill him in retaliation for his use of the mail and for complaining about staff conduct, thereby violating his First Amendment rights. When liberally construed, plaintiff has stated a claim for relief. However, the records show that plaintiff has exhausted claims against only one defendant, Correctional Sergeant T. Jackson. Jackson, then, is the sole defendant in this action. The claims against the remaining defendants (Ron Davis, Young, G. Fooancrook, Torres, McElroy, Holt, and J. Arnold) are DISMISSED without prejudice.

         These defendants are also DISMISSED from this action.

         CONCLUSION

         For the foregoing reasons, the Court orders as follows:

         1. The Clerk of the Court shall issue summons and a Magistrate Judge jurisdiction consent form and the United States Marshal shall serve, without prepayment of fees, a copy of the operative complaint in this matter (Docket No. 22), all attachments thereto, and a copy of this order upon San Quentin Correctional Officer T. Jackson. The Clerk shall also mail courtesy copies of ...