United States District Court, E.D. California
BINH C. TRAN, Plaintiff,
FRED FOULK, et al., Defendants.
LEBORAH BARNES, UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se and in forma pauperis
pursuant to 42 U.S.C. § 1983. Plaintiff has consented to
the jurisdiction of a magistrate judge. (ECF No. 4.) 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.
times relevant to this action, plaintiff was a state prisoner
housed at High Desert State Prison (“HDSP”) in
Susanville, California. He names as defendants HDSP Warden
Fred Foulk, Correctional Officer (“CO”) Joksch,
CO Turner, and Appeals Coordinator L. Lopez.
allegations may be fairly summarized as follows:
Assault by Cellmate
January 12, 2013, plaintiff was assigned a cellmate, inmate
Brian Yang, who was mentally unstable and on
“psych-medication.” Afraid for his safety,
plaintiff repeatedly complained to COs Turner and Joksch
about inmate Wang's mental instability and
plaintiff's fear of attack. CO Turner attempted to move
plaintiff, but the transfer did not happen. CO Joksch claimed
to be too busy to attend to plaintiff's concerns.
March 22, 2013, plaintiff was severely assaulted by his
cellmate. As a result of the attack, plaintiff suffered a
broken jaw and was ...