United States District Court, E.D. California
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
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.
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 incarcerated at
California City Correctional Facility in California City,
California. He names as Defendants Correctional Officers
(“CO”) Porter, Gomez, Askerson, and Cortez.
allegations can be fairly summarized as follows:
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.
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. ...