ORDER RELIEVING APPOINTED COUNSEL, WHO WAS APPOINTED FOR THE LIMITED PURPOSE OF IDENTIFYING DOE DEFENDANTS Doc. 17
ORDER GRANTING MOTION TO AMEND COMPLAINT Doc. 20
ORDER DISMISSING SECOND AMENDED COMPLAINT WITH LEAVE TO AMEND Doc. 20 THIRTY-DAY DEADLINE
I. Procedural History and Court Appointed Counsel
On December 9, 2008, Plaintiff Joe Danny Huerta, a former state prisoner proceeding pro se*fn1 and in forma pauperis, filed a complaint pursuant to 42 U.S.C. § 1983, naming Sheriff Margaret Mims and other unknown officers of the Fresno County Jail. See Pl. Compl. Doc. 1. On October 26, 2009, Plaintiff filed an amended complaint. Doc. 11. On November 16, 2010, the Court issued a screening order, requiring Plaintiff to file an second amended complaint or notify of willingness to proceed on his original complaint for the Eighth Amendment excessive force claims found cognizable against Doe Defendants. Doc. 13. On December 17, 2010, Plaintiff notified the Court of willingness to proceed on the claims found cognizable in his original complaint. Doc. 14. On December 21, 2010, the Court dismissed the Plaintiff's claims for injunctive relief against all Defendants and dismissed Defendant Sheriff Margaret Mims entirely from the action. Doc. 15. On June 21, 2011, the Court appointed Julius M. Cruz, Esquire, for the limited purpose of assisting Plaintiff in identifying the Doe Defendants. Doc. 17. On December 6, 2011, appointed counsel was able to assist Plaintiff in identifying the Doe Defendants and filed a motion to amend Plaintiff's complaint. Mot. Amend. Pl. Compl., Doc. 20. In Plaintiff's second amended complaint, Plaintiff names Defendants Margaret Mims, Sheriff; Alexander Chagoya, correctional officer; Che Garcia, correctional officer; and Merle Heggen, correctional officer. Id. at 2.Thus, appointed counsel discharged his obligation, and the Court relieves him from further proceedings.
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 fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).
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). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice," Ashcroft v. Iqbal, 556 U.S. 662, __, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)), and courts "are not required to indulge unwarranted inferences," Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 129 S. Ct. at 1949.
Under § 1983, Plaintiff must demonstrate that each defendantpersonally 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 in Plaintiff's Complaint
In Plaintiff's second amended complaint, he states the following:
According to the initial Complaint, in November 2007, Plaintiff was arrested and was taken to the booking area of the Fresno County Jail. In the booking area, Plaintiff was asked to enter a room; that room was overcrowded, and as a result, Plaintiff did not want to enter the overcrowded room. Defendants then pushed Plaintiff into a wall near a bench; Plaintiff's leg got stuck in the bench. Defendants subsequently placed handcuffs on Plaintiff and placed him in an isolated room. While in the isolated room, Plaintiff made a jerking movement; Defendants then held him, while one of them choked and suffocated Plaintiff . . . Plaintiff alleges on information and belief that ...