United States District Court, E.D. California
ORDER DISMISSING COMPLAINT WITHOUT LEAVE TO AMEND ECF
NO. 10) DISMISSAL COUNTS AS A STRIKE PURSUANT TO 28 U.S.C.
§ 1915(G) CLERK TO TERMINATE ALL PENDING MOTIONS AND
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.
§ 1983. He has consented to Magistrate Judge
jurisdiction. No other parties have appeared in the action.
Court screened Plaintiff's complaint, found that it
failed to state a claim, and dismissed it with leave to
amend. (ECF No. 6.) His first amended complaint is before the
Court for screening. (ECF No. 10.)
Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or officer or
employee of a governmental entity. 28 U.S.C. § 1915A(a).
The Court must dismiss a complaint or portion thereof if the
prisoner has raised claims that are legally “frivolous,
malicious, ” or that fail to state a claim upon which
relief may be granted, or that seek monetary relief from a
defendant who is immune from such relief. 28 U.S.C. §
1915A(b)(1), (2). “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. §
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 the California Substance Abuse Treatment
Facility (“SATF”), but complains of acts that
occurred at San Quentin State Prison, High Desert State
Prison, and SATF. He names Scott Kernan, Secretary of CDCR,
as the sole named defendant. He also names “Multiple
John Does.” Plaintiff's first amended complaint is
substantially similar to his initial complaint. Plaintiff
states that, at some point, at an undisclosed institution, he
was questioned by correctional officers who threatened to
house him with an inmate who would rape him if he did not
answer their questions. Plaintiff refuses to identify the
officers or the institution out of fear of retaliation. As a
result of that encounter, Plaintiff believes he must be
housed in a single cell. Transferring Plaintiff to another
unit or prison, or placing him in Administrative Segregation
is insufficient. Only single cell housing will do.
majority of his complaint is comprised of boilerplate legal
standards and generalized allegations regarding the risks of
double-celling in prisons, as well as the lack of privacy and
seeks an injunction placing him on permanent single cell
status as well as money damages.