United States District Court, E.D. California
FINDINGS AND RECOMMENDATION TO DISMISS ACTION FOR
FAILURE TO STATE A CLAIM (ECF NO. 9) FOURTEEN (14) DAY
MICHAEL J. SENG UNITED STATES MAGISTRATE JUDGE.
is a state prisoner proceeding pro se and in forma pauperis
in this civil rights action brought pursuant to 42 U.S.C.
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.
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).
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).
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).
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.
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.
allegations may be summarized essentially as follows.
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.
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.
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 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.
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 ...