United States District Court, E.D. California
ORDER DIRECTING CLERK'S OFFICE TO ASSIGN CASE TO
A DISTRICT JUDGE FINDINGS AND RECOMMENDATION TO DISMISS FIRST
AMENDED COMPLAINT WITH PREJUDICE FOR FAILURE TO STATE A CLAIM
(ECF NO. 9)
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.
October 10, 2017, this Court screened Plaintiff's
complaint and found it stated no cognizable claims. (ECF No.
8.) Plaintiff was given the option to file an amended
first amended complaint (ECF No. 9) is before the Court for
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 com plaint 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. §
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)).
Plaintiffs must set forth “sufficient factual matter,
accepted as true, to state a claim to relief that is
plausible on its face.” Iqbal, 556 U.S. at
678. 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. Iqbal, 556 U.S. at 677-78.
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). To state a claim under
section 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
section 1983 the Plaintiff must demonstrate that each
defendant personally participated in the deprivation of his
rights. Jones v. Williams, 297 F.3d 930, 934 (9th
Cir. 2002). This requires the presentation of factual
allegations sufficient to state a plausible claim for relief.
Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret
Service, 572 F.3d 962, 969 (9th Cir. 2009). Prisoners
proceeding pro se in civil rights actions are entitled to
have their pleadings liberally construed and to have any
doubt resolved in their favor, Hebbe v. Pliler, 627
F.3d 338, 342 (9th Cir. 2010) (citations omitted), but
nevertheless, the mere possibility of misconduct falls short
of meeting the plausibility standard, Iqbal, 556
U.S. at 678; Moss, 572 F.3d at 969.
complains of acts that occurred during his incarceration at
Valley State Prison (“VSP”). He names as
Defendants (1) D. Gamble, Correctional Officer, and (2) M.
Barnett, Correctional Officer.
allegations, largely unchanged from his original complaint,
can be fairly summarized as follows:
was placed in Administrative Segregation for non-disciplinary
reasons. Reportedly his property was packed and removed from
his cell by Defendants Gamble and Barnett, but Plaintiff
speculates that Gamble allowed inmates to pack the property.
Some items were confiscated because their possession was
against prison rules. Plaintiff was given a CDCR 1083 Inmate
Property Inventory sheet that listed all items packed and an
attached document listing items confiscated. Plaintiff was
not allowed to look over the lists; Defendant Gamble told him