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Vergara v. Datray

January 13, 2009

LUIS GORDIANO VERGARA, PLAINTIFF,
v.
D. DATRAY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER REQUIRING PLAINTIFF EITHER FILE AMENDED COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON CLAIMS FOUND TO BE COGNIZABLE (Doc. 1) RESPONSE DUE WITHIN THIRTY DAYS

I. Screening Order

Plaintiff Luis Gordiano Vergara ("Plaintiff") is a federal prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), which provides a remedy for violation of civil rights by federal actors. Plaintiff filed his complaint onMay 2, 2008. (Doc. 1.) Plaintiff's complaint is presently before the Court for screening.

A. Screening Requirement

The 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 or malicious," 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. § 1915(e)(2)(B)(ii).

B. Pleading Requirement- Rule 8(a)

"Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions," none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002); Fed. R. Civ. Pro. 8(a). Pursuant to Rule 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. Pro. 8(a). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. Id. at 514. "'The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test.'" Jackson v. Carey, 353 F.3d 750, 755 (9th Cir. 2003) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)); see also Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004) ("'Pleadings need suffice only to put the opposing party on notice of the claim . . . .'" (quoting Fontana v. Haskin, 262 F.3d 871, 977 (9th Cir. 2001))). However, "the liberal pleading standard . . . applies only to a plaintiff's factual allegations." Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). "[A] liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled." Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).

C. Summary of Plaintiff's Complaint

Plaintiff is currently a federal prisoner at Coleman Federal Correctional Complex in Coleman, Florida. Plaintiff was formerly imprisoned at United States Penitentiary-Atwater, in Atwater, California, where the acts he complains of occurred. Plaintiff names as defendants:

Unit Manager Orosco; Lieutenants D. Datray and Cobbs; and Officers Cole, Silva, and Shank.

Plaintiff alleges the following. Plaintiff had contacted Orosco both verbally and by writing that there was a problem with Plaintiff's presence in Unit 3-A. Other inmates wanted Plaintiff to participate in illegal activities, and Plaintiff refused. These inmates threatened to harm Plaintiff. Plaintiff requested a move from 3-A to 3-B. After receiving no assistance from Orosco, Plaintiff informed Datray, Cobbs, and Cole of his situation. Datray and Cobbs told Orosco, but Orosco refused to move him. (Doc. 1, pp. 2, 5.)

On April 13, 2007, Plaintiff was severely assaulted by several inmates in front of a guard tower. Other correctional officers failed to respond properly to this situation. (Id.)

Plaintiff claims a failure to protect in violation of the Eighth Amendment. Plaintiff ...


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