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Toscano v. Kernan

United States District Court, E.D. California

April 18, 2017

BENJAMIN K. TOSCANO, Plaintiff,
v.
SCOTT KERNAN, et al., Defendants.

          ORDER DISMISSING COMPLAINT WITH PREJUDICE AND WITHOUT LEAVE TO AMEND (ECF No. 1) CLERK TO TERMINATE MOTIONS AND CLOSE CASE DISMISSAL COUNTS AS A STRIKE PURSUANT TO 28 U.S.C. § 1915(g)

          Michael J. Seng UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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.

         His complaint is before the Court for screening.

         I. Screening Requirement

         The 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. § 1915(e)(2)(B)(ii).

         II. Pleading Standard

         Section 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).

         To 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).

         A 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. at 677-78.

         III. Plaintiff's Allegations

         Plaintiff is incarcerated at Pelican Bay State Prison, but complains of acts that occurred at Corcoran State Prison. He names the following defendants: (1) CDCR Director Scott Kernan, (2) CDCR DRR Director J. Macomber, (3) DRB Member and “Chief of CSU” B. Moak, (4) DRB Member and Correctional Counselor I E. Park, (5) Correctional Lieutenant M. Lujan, (6) Deputy Attorney General Byron Miller, and (7) Magistrate Judge Erica P. Grosjean.

         His allegations may be summarized essentially as follows:

         On September 23, 2016, Plaintiff filed suit against Defendant Kernan in relation to his placement in the step down program. See Toscano v. Kernan, No. 1:16-cv-01554-EPG (E.D. Cal.) (“Toscano I”). The matter was assigned to the Honorable Erica Grosjean, U.S. Magistrate Judge. Judge Grosjean ordered the Office of the Attorney General to respond to Plaintiff's motion for injunctive relief. Judge Grosjean granted Defendants' request to seal documents. She also dismissed Plaintiff's complaint with leave to amend and denied his motion for injunctive relief. Plaintiff filed a motion for reconsideration, which was denied by Judge Grosjean. Plaintiff contends that the denial violated Federal Rule of Civil Procedure 60 and that Judge Grosjean's rulings were inaccurate.

         Plaintiff filed the instant action on March 2, 2017. The Court takes judicial notice of the docket in Toscano I and notes that, on April 17, 2017, Judge Grosjean dismissed Plaintiff's second amended complaint with prejudice and without leave to amend on the ...


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