The opinion of the court was delivered by: Cormac J. Carney United States District Judge
MEMORANDUM AND ORDER DISMISSING SECOND AMENDED COMPLAINT WITH LEAVE TO AMEND
For the reasons discussed below, the Second Amended Complaint is dismissed with leave to amend. See 28 U.S.C. § 1915(e)(2).
The pro se Plaintiff, a state prisoner incarcerated at the California Men's Colony ("CMC"), filed this civil rights action for damages on October 21, 2010. The caption of the original Complaint identified the Defendants as CMC prison guard D. Luther and the California Department of Corrections and Rehabilitation. However, in the body of the original Complaint, Plaintiff identified only D. Luther as a Defendant, sued in Luther's official and individual capacities. In the original Complaint, Plaintiff alleged that Defendant Luther assertedly attempted to pay gang members to assault Plaintiff (original Complaint, p. 5). Plaintiff sought damages for alleged emotional and mental distress, as well as nominal and punitive damages.
On October 27, 2010, the Court issued a Memorandum and Order dismissing the Complaint with leave to amend. On December 1, 2010, Plaintiff filed a First Amended Complaint.
The First Amended Complaint named Luther as the Defendant, in Luther's individual capacity only. The first page of the form pleading alleged: "This lawsuit is in Response to the Emotional stress suffered by Plaintiff caused by prison guard Luther, who conspired with inmates to physically assault Plaintiff." Plaintiff purported to state a claim for violation of the Fourth Amendment.*fn1
The "Supporting Facts" section of the form pleading alleged, in full:
Plaintiff was informed by three individuals that prison guard Luther had conspired with inmates to physically assault Plaintiff. One of prison guard Luther's informants who[se] nickname is "Genisis" confirmed this to a number of people.
(First Amended Complaint, p. 5). Plaintiff did not allege that any assault ever occurred. Plaintiff sought emotional distress damages, nominal damages and punitive damages (id., p. 6).
On December 7, 2010, the Court issued a Memorandum and Order dismissing the First Amended Complaint with leave to amend. On January 10, 2011, Plaintiff filed a Second Amended Complaint.
The Second Amended Complaint again purports to state a Fourth Amendment claim against Defendant Luther in his individual capacity only. The "Supporting Facts" section of the pleading states, in its entirety:
Prison guard Luther conspired with inmates to physically assault Plaintiff. Plaintiff was removed from "B" Facility, pending an investigation. Upon completion of said investigation, Plaintiff was transferred out of Ironwood State Prison. The investigation confirmed prison guard Luther's attempt to have Plaintiff assaulted. Plaintiff was told that was the factor in removing him out of Ironwood State Prison on June 10, 2009 and sent to the administrative housing unit at Lancaster as soon as possible, then to the California Men's Colony. /// /// (Complaint, p. 5). The Second Amended Complaint seeks only nominal and punitive damages.
As the Court previously informed Plaintiff, conclusory allegations of conspiracy are insufficient to state a claim for relief. See Barren v. Harrington, 152 F.3d 1193, 1194-95 (9th Cir. 1998), cert. denied, 525 U.S. 1154 (1999); Woodrum v. Woodward County, Okl., 866 F.2d 1121, 1126-27 (9th Cir. 1989). The Second Amended Complaint provides even less specificity than the First Amended Complaint with respect to ...