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Wessel v. Maloney

November 3, 2010

ARON EZRA WESSEL, PLAINTIFF,
v.
ROBERT MALONEY, ET AL., DEFENDANTS.



ORDER

Plaintiff, a state prisoner, has filed this pro se civil action. On August 13, 2010, the court dismissed plaintiff's complaint with leave to amend. On September 16, 2010, plaintiff filed an amended complaint. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1) and is before the undersigned pursuant to plaintiff's consent. See E.D. Cal. Local Rules, Appx. A, at (k)(4).

Pursuant to 28 U.S.C. § 1915A, the court shall review "a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity." 28 U.S.C. § 1915A(a). "On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief." Id. § 1915A(b).

As plaintiff is aware, a district court must construe a pro se pleading "liberally" to determine if it states a claim and, prior to dismissal, tell a plaintiff of deficiencies in his complaint and give plaintiff an opportunity to cure them. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000). While detailed factual allegations are not required, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570).

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. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. 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.

Id. (citations and quotation marks omitted). Although legal conclusions can provide the framework of a complaint, they must be supported by factual allegations, and are not entitled to the assumption of truth. Id. at 1950.

The court dismissed the original complaint because plaintiff did not allege a violation of a federal constitutional or statutory right, and had therefore failed to establish this court's subject matter jurisdiction. The court also noted that a local governmental entity, such as Siskiyou County, which plaintiff had named as a defendant, may be liable under § 1983 only where the plaintiff alleges facts to show that a constitutional deprivation was caused by the implementation or execution of "a policy statement, ordinance, regulation, or decision officially adopted and promulgated" by the County. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691, (1978). The custom or policy of inaction must be the result of a "conscious," City of Canton v. Harris, 489 U.S. 378, 389 (1989), or "'deliberate choice to follow a course of action . . . made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question.'" Oviatt v. Pearce, 954 F.2d 1470, 1477 (9th Cir.1992) (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 483-84 (1986) (plurality opinion)).

In his amended complaint, plaintiff names only Siskiyou County as a defendant. The amended complaint, in its entirety, reads as follows:

I Aron Wessel am filing a first amended complaint to cure deficiencies. I allege a violation of constitutional rights pursuant to 42 U.S.C. 1983, an Eighth Amendment failure to protect claim.

Furthermore, I jion [sic] a violation of Fourteenth Amendment due process claim. In this matter Siskiyou County has put a false charge on my CI&I report, the District Attorney was J. Kirk Andrews and the Assistant District Attorney was Robert Maloney in jury trial. The information that was relayed from Siskiyou County to C.D.C. falsely states that I was convicted of Count 7 murder with intent to rape, this false record causes me to fear attacks or death at the hands of other inmates.

In redress I seek $2.700.00 million dollars and the correction of the falsely stated charge, Siskiyou County has caused my undue emotional distress since 2007.

Plaintiff has failed to cure all of the defects in the original complaint. Plaintiff alleges that Siskiyou County violated his Eighth Amendment and Due Process rights pursuant to section 1983, but he fails to allege facts showing that an official policy or custom caused the alleged constitutional violations.

Moreover, plaintiff has not set forth sufficient factual matter state a claim to relief that is plausible on its face. In order to state a claim for violation of the Eighth Amendment, the plaintiff must allege facts sufficient to support a claim that prison officials knew of and disregarded a substantial risk of serious harm to the plaintiff. E.g., Farmer v. Brennan, 511 U.S. 825, 847 (1994); Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). In order to state a claim for deprivation of due process, a plaintiff must first establish the existence of a liberty interest for which the protection is sought. See Hewitt v. Helms, 459 U.S. 460, 466 (1983) ("While no State may deprive any person of life, liberty, or property, without due process of law, it is well settled that only a limited range of interests fall within this provision.") (internal quotations omitted). Liberty interests created by state law are generally limited to freedom from restraint which "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 484 (1995). Plaintiff's conclusory allegations fail under these standards.

Therefore, plaintiff's amended complaint will be dismissed. However, plaintiff is granted leave to file an amended complaint. Lopez, 203 F.3d at 1126-27 (9th Cir. 2000) (en banc) (district courts must afford pro se litigants an opportunity to amend to correct any deficiency in their complaints). Any amended complaint must also adhere to the following requirements:

It must be complete in itself without reference to any prior pleading. E.D. Cal. Local Rule 220; see Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended ...


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