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Exmundo v. Drew

October 8, 2010

EMELITO EXMUNDO, PLAINTIFF,
v.
MTA DREW, ET AL., DEFENDANTS.



ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A CLAIM (Doc. 26) THIRTY-DAY DEADLINE

I. Procedural Background

Plaintiff Emelito Exmundo ("Plaintiff") is a state prisoner who is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action in California Superior Court, County of Kings, on April 9, 2007. (Doc. 1, Attach. 1.) Defendants removed the action to federal court on November 26, 2007. (Doc. 1.) Plaintiff filed a request for remand on January 30, 2008. (Doc. 7.) Finding and recommendations recommending denying Plaintiff's request for remand were issued on July 23, 2008. (Doc. 8.) Plaintiff filed an objection to the findings and recommendation on August 28, 2008. (Doc. 10.) The order adopting the findings and recommendations was signed on September 10, 2008. (Doc. 11.)

Plaintiff filed a first amended complaint on August 7, 2009. (Doc. 17.) An order dismissing the complaint with leave to amend was issued on October 22, 2009. (Doc. 18.) In the order dismissing the first amended complaint Plaintiff was advised that "[u]nrelated claims against different defendants belong in different suits." (Doc. 18, 5:1-2.) Additionally, Plaintiff was advised to "choose which set of related claims he wishes to pursue in this action and only attempt to reallege any such related claims in a second amended complaint." (Id. at 5:12-14.)

Plaintiff filed a second amended complaint on April 22, 2010. (Doc. 26.) For the reasons set forth below, Plaintiff has failed to state a cognizable claim. Plaintiff will be allowed an opportunity to amend the complaint, but is cautioned that his complaint must comply with this and the prior order issued October 22, 2009.

II. 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 "fails to state a claim on which relief may be granted," or that "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C § 1915(e)(2)(B).

In determining whether a complaint states a claim, the Court looks to the pleading standard under Federal Rule of Civil Procedure 8(a). Under 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. P. 8(a)(2)(emphasis added). "[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007)).

Under section 1983, 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, 129 S.Ct. at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 129 S.Ct. at 1949-50; Moss, 572 F.3d at 969.

III. Plaintiff's Second Amended Complaint

A. Allegations

Plaintiff is currently incarcerated at Pleasant Valley State Prison in Coalinga, California. The events alleged in the complaint occurred while Plaintiff was incarcerated in Corcoran State Prison.

Plaintiff names Defendants J. A. Tilton, M. Cates, D. G. Adams, R. Vella, Pina, Speidell, R. Spriester, Voguel, Drew, Renteria, and Cooper. Plaintiff alleges multiple incidents that occur over a period of several years and appear to be unrelated. The Court will not summarize all of the allegations in the second amended complaint since it again entails a variety of apparently unrelated claims that would not present a cohesive basis for analysis.

B. Legibility

Plaintiff's amended complaint consists of 17 handwritten pages. The body of the complaint is a photocopy consisting of minuscule printing with little spacing between words that ...


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