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Herndon v. Porter

United States District Court, N.D. California

August 1, 2016

GERROD L. HERNDON, Plaintiff,
v.
PAROLE AGENT TOM PORTER, Defendant.

          ORDER OF DISMISSAL WITH LEAVE TO AMEND

          HAYWOOD S. GILLIAM, JR. United States District Judge

         INTRODUCTION

         Gerrod L. Herndon, a California state prisoner currently incarcerated at North Kern State Prison and proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983. He has been granted leave to proceed in forma pauperis in a separate order. Based upon a review of the complaint pursuant to 28 U.S.C. § 1915A, it is dismissed with leave to amend.

         DISCUSSION

         A. Standard of Review

         Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). In its review, the court must identify cognizable claims, and dismiss any claims which 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. Id. § 1915A(b)(1)-(2). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).

         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. West v. Atkins, 487 U.S. 42, 48 (1988). B. Legal Claims In the portion of the court’s form complaint where the inmate is to write his statement of the claim, plaintiff wrote:

He “Tom Porter” has failed to grant the state[’]s wishes. He’s denied my federal rights to participate in the mainline of society. I’ve completed parole and he’s filed more paperwork to keep me confined to state and county jails. I try to work with him and all the peace officers about his matter but they insist on lock-up and search warrants. Unlawful probable cause reasonable doubt.

Compl. at 3.

         In the portion of the court’s form complaint where the inmate is to state his requested relief, plaintiff wrote:

When I parole in less than 180 days. Given the discharge of state parole. Northern California. A written apology. Due Process Clause reasonably related to legitimate penological interests. Clemency. Expungement.

Id.

         The Court cannot discern what facts plaintiff is basing his claims on. Plaintiff’s allegations fail to state clearly what happened, when it happened, what defendant did, and how those actions or inactions rise to the level of a federal constitutional violation. This action cannot proceed without more information. Plaintiff shall be granted leave to amend to attempt to cure these deficiencies. In his amended complaint, plaintiff should clarify whether he was released on parole but is now incarcerated on a new charge or whether he was never released on parole but believes he is entitled to be.

         In amending his complaint, plaintiff is advised that the Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief.” “Specific facts are not necessary; the statement need only give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (omission in original) (internal quotations and citations omitted). “Factual allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 553-56 (2007) (citations omitted). To state a claim that is plausible on its face, a plaintiff ...


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