The opinion of the court was delivered by: VICTOR B. Kenton United States Magistrate Judge
MEMORANDUM AND ORDER DISMISSING THIRD AMENDED COMPLAINT WITH LEAVE TO AMEND PROCEEDINGS
Pro se prisoner Orienthal D. Liggins (hereinafter referred to as "Plaintiff") filed a civil rights complaint in the United States District Court for the Central District of California on October 14, 2009 pursuant to an Order re Leave to File Action Without Prepayment of Full Filing Fee.
Plaintiff brought this civil rights Complaint against Defendants Rod Hoops ("Hoops"), Sheriff of San Bernardino County; Gary Penrod ("Penrod"), former San Bernardino County Sheriff; Captain J. McMahon ("McMahon") of the West Valley Detention Center and John/Jane Does in their official and individual capacities. (Complaint at 3.)
Plaintiff raised the following claims in his original Complaint:
(1) inadequate law library under Bounds v. Smith;*fn1 (2) denial of right of access to the courts under Bounds v. Smith; (3) loss of property;
(4) prejudice to a fair trial under 42 U.S.C. §1983, the Fifth, Sixth and Fourteenth Amendments; (5) violations of California law; (6) denial of equal protection; and (7) denial of pre-trial prisoner's right to freedom of expression, communication and association. (See Complaint at 5, Attachment p. 3.)
On December 17, 2009, the Court issued an Order re Dismissal with Leave to Amend. The Court advised Plaintiff that the First Amended Complaint must be complete in and of itself, that Plaintiff may not add new parties without leave of Court, and that failure to comply with the Court's requirements may result in a recommendation of dismissal.
Plaintiff requested several extensions of time in which to file a First Amended Complaint which were granted by the Court. On March 11, 2010, Plaintiff filed a "First Amended Complaint."
On April 8, 2010, Plaintiff filed a "Request to File Second Amended Complaint." On April 22, 2010, the Court issued a Minute Order granting Plaintiff leave to file a Second Amended Complaint.
On April 26, 2010, Plaintiff filed a "Motion for an Extension of Time to File a Second Amended Complaint." On April 29, 2010, the Court issued a Minute Order granting Plaintiff's request for an extension of time to file a Second Amended Complaint.
On June 3, 2010, Plaintiff filed a "Motion for Continuance and Attachments." On June 4, 2010, Plaintiff filed a "Motion for (30) Thirty Day Continuance and Motion for Leave to Amend." Plaintiff requested leave to file a Third Amended Complaint. Plaintiff also attached a document entitled "Second Amended Complaint" and an attachment consisting of nine exhibits, containing over 424 pages.
On June 22, 2010, the Court issued a Minute Order noting that Plaintiff had filed a Motion for Extension of Time, Motion for Leave to Amend, Second Amended Complaint, and a Request to File a Third Amended Complaint. The Court granted Plaintiff an extension of time to file a Third Amended Complaint and further advised Plaintiff that the document must be complete in and of itself.
On July 21, 2010, Plaintiff requested a 60-day extension of time in which to file a Third Amended Complaint. The Court granted Plaintiff's request. Thereafter, Plaintiff requested several extensions of time, which were granted.
On February 22, 2011, Plaintiff filed a "Third Amended Complaint" pursuant to 42 U.S.C. §1983, 1985(3) and 28 U.S.C. §§1367, 1443. Plaintiff names as Defendants Hoops; Penrod; McMahon; Sgt. Robert Dorrough (promulgates law library policy) at the West Valley Detention Center ["WVDC"]); Lori Vanderkallen (law librarian at WVDC); Dr. Shin Jin Liong (Chief Medical Officer at WVDC); Dr. Rajesh Patel (Chief Psychiatric Officer at WVDC); Matthew Cate (Director of California Department of Corrections ["CDC"]); Victor C. Marshall (Attorney); Grover L. Porter (Attorney); Dr. Michael E. Kania (Psychiatrist); Elizabeth M. Liggins; John A. Clarke (Clerk for the County of Los Angeles); San Bernardino District Attorney's Office; Michael Bildt (Chief of Police for San Bernardino City); John Munoz (Detective for the San Bernardino Police Department); John Echevarria (Police Officer for the City of San Bernardino); Henry Birkes (Sergeant for the San Bernardino Police Department); William Fletcher (Police Detective for San Bernardino Police Department); Jesus Arroyo; Robin Ayers; City of San Bernardino; City of Fontana; Philip Hinkle (Police Officer for the City of Fontana); State of California; California Board of Corrections; Governor Arnold Schwarzenegger; Los Angeles County; San Bernardino County; San Bernardino Superior Court; John Doe (Transportation Sergeant at WVDC); and John Doe 2 (Disciplinary Sergeant). (See Third Amended Complaint at 2-5.)*fn2
Plaintiff alleges the following causes of action in his Third Amended Complaint: violation of 42 U.S.C. §§1983, 1985(2)(3), 1994, alleging denial of access to courts (Count 1); deliberate indifference to serious medical needs and inadequate medical care (Count 2); cruel and unusual punishment (Count 3); denial of effective assistance of counsel (Count 4); conspiracy to interfere with state and federal constitutional rights. Under state law, medical malpractice (Count 5); failure to furnish adequate medical care (Count 6); intentional infliction of emotional distress (Count 7); general negligence, attorney malpractice (Count 8); and abuse of process (Count 9). (Third Amended Complaint at 6.) Plaintiff seeks compensatory and punitive damages along with injunctive relief against Defendants.
Because Plaintiff is seeking to proceed in forma pauperis, the Court shall review such a complaint "as soon as practicable after docketing." Pursuant to 28 U.S.C. §1915(e)(2), the District Court is required to dismiss a complaint if the Court finds that the complaint (1) is legally frivolous or malicious, (2) fails to state a claim upon which relief may be granted, or (3) seeks monetary relief from a defendant immune from such relief. 28 U.S.C. §1915(e)(2)(B) (re: all in forma pauperis complaints).
A complaint may also be dismissed for lack of subject matter jurisdiction, pursuant to Fed.R.Civ.P. 12(b)(1). Neitzke v. Williams, 319, 327 n.6, 109 S.Ct. 1827 (1989) (unanimous decision)(patently insubstantial complaint may be dismissed under Rule 12(b)(1) for lack of subject matter jurisdiction. When considering a dismissal, a Court must accept as true all allegations and material facts and must construe those facts in a light most favorable to the plaintiff. Resnick v. Hays, 213 F.3d 443, 447 (9th Cir. 2000). However, a "court [is not] required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9thCir. 2001). Nor is a Court "bound to accept as true a legal conclusion couched as a factual allegation." Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949-50, 173 L.Ed.2d 858 (2009).
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955 (2007)). "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." Iqbal, 129 S.Ct. 1937, 1949, 172 L.Ed.2d 868 (2009)(citing Twombly, 550 U.S. at 556.) "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant acted unlawfully." (Id.) Although a complaint need not include "'detailed factual allegations,' ... [a] pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of the cause of action will not do.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555. The Complaint must contain "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not 'show[n]' - 'that the pleader is entitled to relief.'" (Id. at 1950 [quoting Fed.R.Civ.P. 8(a)(2) (internal brackets omitted). "[A] well-pled complaint may proceed even if it appears that a recovery is very remote and unlikely." Twombly, 55 U.S. at 556, 127 S.Ct. 1955 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683 (1974).
In civil rights cases in which the Plaintiff appears pro se, the pleadings must be construed liberally, so as to afford the plaintiff the benefit of any doubt as to the potential validity of the claims asserted. Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988). If, despite such liberal construction, the Court finds that the complaint should be dismissed for failure to state a claim, the Court has the discretion to dismiss the complaint with or without leave to amend. Lopez v. Smith, 203 F.3d 1122, 1126-30 (9th Cir. 2000). A pro se litigant should be given leave to amend, unless it is clear that the deficiencies of the complaint cannot be cured by amendment. Lopez, 203 F.3d at 1130-31; Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995); Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).
A. Federal Rule Of Civil Procedure 8(a).
Federal Rule of Civil Procedure 8(a)(2) requires "a short and plain statement of the claim showing that the pleader is entitled to relief," in order to "give the defendant fair notice of what the ... claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964 (2007); Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 2200 (2007). "The plaintiff must allege with at least some degree of particularity overt acts which defendants engaged in that support the plaintiff's claim." Jones v. Community Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984). When a complaint fails to comply with Rule 8, it may be dismissed pursuant to Fed.R.Civ.P. 41(b). McHenry v. Renne, 84 F.3d 1172, 1179 (9th Cir. 1996)(complaint properly dismissed under Rule 41 for failure to comply with Rule 8 in Court Order).
For all of the following reasons, the Third Amended Complaint should be ...