Florence v. Frauenheim

          FINDINGS AND RECOMMENDATION TO DISMISS ACTION FOR FAILURE TO STATE A CLAIM (ECF NO. 9) FOURTEEN (14) DAY OBJECTION DEADLINE

          MICHAEL J. SENG UNITED STATES 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.

         On November 24, 2015, the Court dismissed Plaintiff’s complaint for failure to state a claim but gave leave to amend. (ECF No. 8.) His first amended complaint is before the Court for screening.

         I. Screening Requirement

         The in forma pauperis statute provides, “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).

         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).

         To state a claim under § 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); Ketchum v. Alameda Cnty., 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 Atlantic 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. at 677-78.

         III. Plaintiff’s Allegations

         Plaintiff is incarcerated at Kern Valley State prison but complains of acts that occurred at Pleasant Valley State Prison (“PVSP”) in Coalinga, California. Plaintiff names as Defendants PVSP Correctional Officer (“CO”) R. Reser in his individual capacity, and PVSP Warden Scott Frauenheim in his individual and official capacities.

         Plaintiff’s allegations may be summarized essentially as follows.

         Plaintiff transferred to PVSP on December 5, 2012, with nine boxes of personal property. Upon Plaintiff’s arrival, CO Reser told Plaintiff that he was only allowed four boxes. Plaintiff countered that he had a permissible amount of property - according to Plaintiff, six cubic feet of property and one cubic foot of legal material - because his nine boxes were only half full. Plaintiff threatened to file a grievance. Reser became angry.

         Reser confiscated six CDs containing explicit lyrics, telling Plaintiff that explicit lyrics were not allowed pursuant to prison policy. Plaintiff stated that he was filing an appeal and asked Reser to hold the CDs. Reser refused, telling Plaintiff to send the CDs home or donate them.

         Reser removed Plaintiff’s civil rights complaint in another case and the related inmate appeals, stating, “You sure don’t have a problem with filing 602s.” He then stated, I’m going to give you something to file an appeal about, ” and confiscated Plaintiff’s hot pot, orthopedic shoes, extension cord, and other items On December 6, 2012, Plaintiff sent a CDCR Form-22 to the Warden^[1] regarding the policy of prohibiting CDs with explicit lyrics and the confiscation of Plaintiff’s CDs. Plaintiff received a memorandum back stating that the items were contraband.

         In January or February 2013, Plaintiff suffered a nervous breakdown. He was placed in a crisis room and then transferred to California Medical Facility for treatment. He then was transferred to California State Prison - Corcoran (“CSP-COR”) for ninety days pending transfer to Richard J. Donovan Correctional Facility (“RJD”), where he is presently housed. Since his personal property remained at PVSP following his nervous breakdown, he sent a letter on June ...