The opinion of the court was delivered by: Andrew J. Wistrich United States Magistrate Judge
MEMORANDUM AND ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND
After his complaint was dismissed with leave to amend, plaintiff, a state prisoner proceeding pro se and in forma pauperis, filed a first amended complaint ("FAC") under 42 U.S.C. § 1983 and Title II of the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12132, against Los Angeles County Sheriff Lee Baca ("Baca"), Los Angeles County deputy sheriffs, a nurse employed at the Los Angeles County Jail, and Jane Doe. [FAC 3, 4a-4c*fn1 ]. Defendants are sued in their individual and official capacities. For the reasons described below, the first amended complaint is dismissed with leave to amend. Plaintiff has three options:
(1) Plaintiff may continue this action in this court by filing a document labeled "Second Amended Complaint" bearing case number CV08-03834 CAS (AJW)within twenty-one (21) days of the date of this order. The second amended complaint should attempt to correct the deficiencies in plaintiff's claims noted below. Plaintiff may not add any new claims or new defendants to his second amended complaint (other than naming a person sued as a "Doe" defendant in the prior complaint).
(2) Plaintiff may file a "Notice of Intent Not to Amend Complaint" within twenty-one (21) days of the date of this order. The timely filing of a notice of intent not to amend will be construed as an indication that plaintiff wishes to challenge dismissal of the complaint by seeking appellate review of this order in the Ninth Circuit Court of Appeals. If the court receives timely written notice of plaintiff's intent not to file an amended complaint, this action will be dismissed with prejudice, and plaintiff will be free to appeal the order of dismissal. See Edwards v. Marin Park, Inc., 356 F.3d 1058, 1063-1066 (9th Cir. 2004); Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).
(3) Plaintiff may do nothing in response to this order. If plaintiff does not respond to this order by filing either a timely amended complaint or a notice of intent not to amend, plaintiff will be deemed to have consented to the dismissal of this action with prejudice under Rule 41(b) of the Federal Rules of Civil Procedure for failure to prosecute and failure to comply with this court's order. See Edwards, 356 F.3d at 1063-1066.
Plaintiff is cautioned that failure to file an amended complaint within the time permitted by this order may result in the dismissal of this action with prejudice, as explained above.
The complaint alleges as follows. On February 5, 2008, while in the custody of the Los Angeles County Sheriff, plaintiff slipped and fell, injuring his back, head, and left hand. The cause of plaintiff's injuries was "neglect" by the Sheriff, because there was water in front of plaintiff's cell from a broken "chase." [FAC 5]. On February 9, 2008, plaintiff, who was unable to walk, was "assaulted and thr[own] out of his wheel chair" by Los Angeles County sheriff's deputies. [FAC 5]. Plaintiff was then "rolled on a lunch cart by" sheriff's deputies, who continued to yell racial slurs, threw plaintiff to the floor of the cell, denied him food for one day, and denied shower, soap, and toothpaste for five. Plaintiff was "then denied medical treatment by Nurse Placencia . . . ." [FAC 4b]. Plaintiff alleges violations of his rights under the Americans With Disabilities Act (the "ADA"), 42 U.S.C. § 12132, and the Eighth Amendment. He seeks monetary and injunctive relief. [FAC 6].
Standard governing dismissal of complaints under 28 U.S.C. §§ 1915(e), 1915A
The court "shall" dismiss a complaint in a civil action in which a prisoner is proceeding in forma pauperis, or seeks relief against a governmental entity or officer or employee of a governmental entity, if the complaint is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915(e)(2), 1915A(b); see also 42 U.S.C. § 1997e(c)(1).
A complaint fails to state a claim upon which relief can be granted if it does not contain "enough facts to state a claim for relief that is plausible on its face," Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007), and thereby fails to "raise a reasonable expectation that discovery will reveal evidence" to support the plaintiff's claim. Twombly, 550 U.S. at 545. "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, - U.S.-, 129 S.Ct. 1937, 1949 (2009)(quoting and citing Twombly, 550 U.S. at 556, 570). "[A] plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Twombly, 550 U.S. at 555 (internal quotation marks and ellipsis omitted). "Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Iqbal, 129 S.Ct. at 1949 (internal quotation marks omitted)(quoting Twombly, 550 U.S. at 557).
The court must accept as true all factual allegations contained in the complaint. That principle, however, "is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 129 S.Ct. at 1950. A complaint filed pro se, however, is "to be liberally construed," and "however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 93-94 (2007).
Section 1983 Pleading Standard
Plaintiff has the burden of pleading and proving each essential element of his ...