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Ronald James Brewer v. Frank Taylor

September 16, 2011

RONALD JAMES BREWER, PLAINTIFF,
v.
FRANK TAYLOR, ET AL., DEFENDANTS.



The opinion of the court was delivered by: VICTOR B. Kenton United States Magistrate Judge

ORDER RE DISMISSAL WITH LEAVE TO AMEND

Ronald James Brewer (hereinafter referred to as "Plaintiff"), appearing pro per, filed a Civil Rights Complaint pursuant to 42 U.S.C. §1983 on September 12, 2011, pursuant to the Court's Order re Leave to File Action without Prepayment of Full Filing Fee. Plaintiff has named as Defendants Captain Frank Taylor and Lt. Gay Fredrickson in their individual capacities. (Complaint at 2-3.)

STATEMENT OF FACTS

Plaintiff alleges that Defendants were "deliberately indifferent" on March 8, 2011 in responding to Plaintiff's grievances. Plaintiff alleges that on March 7, 2011, he lodged a complaint against jail officials arguing that the 30-day review of an inmate's administrative segregation placement accorded by the Riverside County Sheriff's department did not comport with due process. (Complaint at ¶ 18.) Plaintiff alleges that Defendant Lt. Fredrickson's response was provided within 24 hours of the initial complaint, which is unheard of in Plaintiff's experience with jail grievances, and the response references a vague reason ( which Plaintiff alludes is a ruse) for Plaintiff's placement in administrative segregation, even though no explanation for such placement was sought by Plaintiff in the March 7, 2011 complaint. (Complaint at ¶ 19.) Plaintiff also alleges on March 8, 2011, he received a response from Defendant Captain Taylor, which was a "cover or a ruse to silence and punish Plaintiff for his successful use of the jail's grievance system." (Complaint at ¶ 20.) Defendant Captain Taylor allegedly asserted in his response to Plaintiff's grievance that "you requested a written response as to your placement in administrative segregation". Defendant Lt. Fredrickson responded to your grievance dated March 7, 2011 regarding your placement in administrative segregation and provided you with a reason, thus satisfying Plaintiff's request for a written response. Id. Defendant Captain Taylor then stated in his March 8, 2011 decision to suspend Plaintiff's grievance rights "based on your repeated grievances regarding the same issue." Plaintiff's grievance privilege was suspended. (Id.)

Plaintiff alleges a violation of his rights under the First Amendment by jail officials who retaliate against him by using the grievance procedure to silence and punish Plaintiff for his successful use of the grievance system to improve jail conditions. (Complaint at p. 5.)

STANDARD OF REVIEW

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 F.R.Civ.P. 12(b)(1). Neitzke v. Williams, 490 U.S. 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. Hayes, 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 (9th Cir. 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 868 (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, 173 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).

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).

DISCUSSION

For all of the following reasons, the Complaint should be dismissed ...


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