United States District Court, N.D. California
JAMES G. MARLOW, Plaintiff,
RON DAVIS, et al., Defendants.
ORDER OF SERVICE ORDER DIRECTING DEFENDANTS TO FILE A
DISPOSITIVE MOTION OR NOTICE REGARDING SUCH MOTION
C. SPERO CHIEF MAGISTRATE JUDGE
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. 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. §
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.
Standard of Review
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).
“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).
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.
defendants are also DISMISSED from this action.
foregoing reasons, the Court orders as follows:
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 ...