United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF
ACTION FOURTEEN DAY (14) DEADLINE
BARBARA A. MCAULIFFE UNITED STATES MAGISTRATE JUDGE.
Tony Tran (“Plaintiff”) is a state prisoner
proceeding pro se and in forma pauperis in this civil rights
action pursuant to 42 U.S.C. § 1983. Plaintiff initiated
this action on October 19, 2015. On October 14, 2016, the
Court dismissed Plaintiff's complaint with leave to
amend. On December 2, 2016, the Court dismissed
Plaintiff's first amended complaint with leave to amend.
Plaintiff's second amended complaint, filed on February
6, 2017 (ECF No. 11), is currently before the Court for
Screening Requirement and Standard
Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity and/or against
an officer or employee of a governmental entity. 28 U.S.C.
§ 1915A(a). Plaintiff's complaint, or any portion
thereof, is subject to dismissal if it is frivolous or
malicious, if it fails to state a claim upon which relief may
be granted, or if it seeks monetary relief from a defendant
who is immune from such relief. 28 U.S.C. § 1915A(b)(1),
(2); 28 U.S.C. § 1915(e)(2)(B)(ii).
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, 129 S.Ct. 1937, 1949 (2009)
(citing Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555, 127 S.Ct. 1955, 1964-65 (2007)). While a
plaintiff's allegations are taken as true, courts
“are not required to indulge unwarranted
inferences.” Doe I v. Wal-Mart Stores, Inc.,
572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks
and citation omitted).
proceeding pro se in civil rights actions are entitled to
have their pleadings liberally construed and to have any
doubt resolved in their favor. Hebbe v. Pliler, 627
F.3d 338, 342 (9th Cir. 2010) (citations omitted). To survive
screening, Plaintiff's claims must be facially plausible,
which requires sufficient factual detail to allow the Court
to reasonably infer that each named defendant is liable fo r
the misconduct alleged, Iqbal, 556 U.S. at 678, 129
S.Ct. at 1949 (quotation marks omitted); Moss v. United
States Secret Service, 572 F.3d 962, 969 (9th Cir.
2009). The sheer possibility that a defendant acted
unlawfully is not sufficient, and mere consistency with
liability falls short of satisfying the plausibility
standard. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949
(quotation marks omitted); Moss, 572 F.3d at 969.
is currently housed at Kern Valley State Prison. Plaintiff
brings suit against D. Davey, Warden, Corcoran State Prison,
where he was formerly housed and where the events in the
complaint took place.
alleges as follows: Defendant Davey is responsible for the
operation of Corcoran State Prison and for the welfare of
inmates. (EDF No. 11p. 3.) On October 19, 2013, Plaintiff
received a letter from his attorney indicating that the
attorney did not receive any of the legal mail that Plaintiff
sent to him regarding Plaintiff's habeas corpus petition.
Plaintiff says that he checked his trust statement report and
the mailing was paid for, but that the mailing of his legal
mail was not recorded for mailing out. Plaintiff's trust
account stated that five legal mailings were paid for by
postage. Plaintiff requested the mail room copy of the CDCR
119 card on which legal mail is recorded for mailing out.
Plaintiff filed a grievance to try and resolve the problem.
Plaintiff was informed at the second level that the CDCR 119
card will not list legal mailings to his attorney and will
only list legal mail to the court or the Board of Control.
(ECF NO. 11, p.4.) Plaintiff alleges that due to the lack of
professionalism at Corcoran, Plaintiff lost documents such as
an original ballistic report, original court transcripts, and
original affidavits. Plaintiff alleges that his attorney had
to stop working on his habeas corpus petition. Plaintiff
seeks to hold Defendant Davey responsible for violating
Plaintiff's First Amendment right to petition the
government for redress. Plaintiff seeks money damages and
Deficiencies in Complaint
Linkage and Supervisory Liability
Civil Rights Act under which this action was filed provides
Every person who, under color of [state law]...subjects, or
causes to be subjected, any citizen of the United States . .
. to the deprivation of any rights, privileges, or immunities
secured by the Constitution...shall be liable to the party
injured in an action at law, suit in equity, or other proper
proceeding for redress.
42 U.S.C. § 1983. The statute requires that there be an
actual connection or link between the actions of the
defendants and the deprivation alleged to have been suffered
by plaintiff. See Monell v. Department of Social
Servs.,436 U.S. 658 (1978) (“Congress did not
intend § 1983 liability to attach where...causation [is]
absent.”); Rizzo v. Goode, 423 U.S. 362 (1976)
(no affirmative link between the incidents of police
misconduct and the adoption of any plan or policy
demonstrating their authorization or approval of such
misconduct). “A person ‘subjects' another to
the deprivation of a constitutional right, within the meaning
of § 1983, if he does an affirmative act, participates
in another's ...