United States District Court, E.D. California
BENJAMIN K. TOSCANO, Plaintiff,
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.
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.
complaint is before the Court for screening.
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 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.
allegations may be summarized essentially as follows:
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.
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 ...