United States District Court, D. Montana, Helena Division
Mark Marion Macy, Plaintiff, Pro se, Great Falls, MT.
FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Keith Strong, United States Magistrate Judge.
Mr. Macy, a prisoner proceeding in forma pauperis, alleges he was denied toilet paper on three occasions over a period of less than two months in violation of the Eighth Amendment cruel and unusual punishment clause of the United States Constitution. (Complaint, Doc. 2-1.) He also alleges his Fourteenth Amendment due process right was violated. (Complaint, Doc. 2-1 at 1-2.) Mr. Macy's allegations fail to state a claim upon which relief may be granted. The Complaint should be dismissed.
Mr. Macy filed this action in federal court, in the Helena Division of the District of Montana. (Complaint, Doc. 2.) Venue is proper, as he was incarcerated in and alleges wrongs committed in Powell County, Montana. Local Rule 3.2(b) (3). The Court has personal jurisdiction over the parties, all of whom are found in Montana. Fed.R.Civ.P. 4(k) (1) (A); Mont. R. Civ. P. 4(b). Read liberally, the Complaint attempts to allege a violation under 42 U.S.C. § 1983, invoking subject matter jurisdiction. 28 U.S.C. § 1331, 28 U.S.C. § 1343(a). The case was assigned to Hon. Dana Christensen, Chief United States District Court Judge, and referred to the undersigned. Local Rule 72.2(a) (1).
Mr. Macy is a prisoner proceeding in forma pauperis. His Complaint must be reviewed to determine if the allegations are frivolous, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § § 1915(e) (2) (B), 1915A. If so, the case must be dismissed. 28 U.S.C. § § 1915(e) (2), 1915A(b). This is the review.
Stating a claim
A complaint must allege sufficient factual matter to " state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). " A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Plausibility is less than probability, but requires " more than a sheer possibility that a defendant has acted unlawfully." Id. Pleadings that are no more than conclusions are not entitled to the presumption of truth and may be disregarded. Id. at 679. A plaintiff must plead the essential elements of a claim to avoid dismissal for failure to state a claim. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).
Leave to amend
Mr. Macy, representing himself, is entitled to have his Complaint liberally construed. Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987). " Unless it is absolutely clear that no amendment can cure the defect . . . a pro se litigant is entitled to notice of the complaint's deficiencies and an opportunity to amend prior to ...