United States District Court, E.D. California
FINDINGS AND RECOMMENDATION TO DISMISS SECOND AMENDED
COMPLAINT WITH PREJUDICE AND WITHOUT LEAVE TO AMEND FOR
FAILURE TO STATE A CLAIM (ECF No. 22) FOURTEEN (14) DAY
MICHAEL J. SENG UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se in this civil rights
action brought pursuant to 42 U.S.C. § 1983. The action
was removed from the Madera County Superior Court on
September 12, 2016. Plaintiff's complaint was screened
and found to state a cognizable First Amendment retaliation
claim against Defendant Desha, but no other claims. (ECF No.
11.) Plaintiff was ordered to file either an amended
complaint or a notice that he was willing to proceed only on
the cognizable claim.
filed a first amended complaint. (ECF No. 13.) That complaint
also was screened and the undersigned issued findings and
recommendations for the action to proceed only a cognizable
First Amendment retaliation claim against Defendant Desha.
(ECF No. 14.) However, the District Judge assigned to the
case declined to adopt the findings and recommendations as to
the First Amendment retaliation claim, concluding that the
chrono at issue was insufficiently adverse to support a
retaliation claim. (ECF No. 21.) Specifically, the District
Judge concluded that Plaintiff's claim that the chrono
could be used to deny him parole was too speculative under
the facts alleged. (Id.) Plaintiff was again given
leave to amend his First Amendment retaliation claim. His
remaining claims were dismissed with prejudice.
second amended complaint is before the Court for screening.
(ECF No. 22.)
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 detained at the California Institution for Men and
complains of acts that occurred at Valley State Prison
(“VSP”). He names Correctional Officer D. Desha
as the sole defendant.
stated, Plaintiff contends that Defendant retaliated against
him for filing grievances by writing a false chrono. His