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Perkins v. Porter

United States District Court, E.D. California

April 26, 2017

CARL PERKINS, Plaintiff,
v.
M. PORTER, et al., Defendants.

          ORDER (1) DISMISSING COMPLAINT WITH LEAVE TO AMEND; AND (2) DENYING MOTION TO APPOINT COUNSEL (ECF Nos. 1, 7) THIRTY (30) DAY DEADLINE

          MICHAEL J. SENG UNITED STATES MAGISTRATE JUDGE

         Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. He has consented to magistrate judge jurisdiction. Plaintiff's complaint is before the Court for screening.

         I. Screening Requirement

         The in 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).

         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

         At all times relevant to this action, Plaintiff was incarcerated at California City Correctional Facility in California City, California. He names as Defendants Correctional Officers (“CO”) Porter, Gomez, Askerson, and Cortez.

         Plaintiff's allegations can be fairly summarized as follows:

         On February 16, 2017, CO Gomez entered the B-Section pod with legal mail for Plaintiff and motioned for Plaintiff to come to him. Plaintiff was on a collect call at the time and motioned for CO Gomez to come to him instead. CO Gomez left without giving Plaintiff his mail. Plaintiff received his mail the next day from another officer.

         Presumably after this incident, CO Gomez asked CO Porter to “unleash the (hounds)” on Plaintiff. CO Porter then left word for CO Askerson and CO Cortez to search Plaintiff's cell. ...


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