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Ramon Murillo v. Ian Parkinson

February 13, 2012

RAMON MURILLO, PLAINTIFF,
v.
IAN PARKINSON, 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

Pro se prisoner Ramon Murillo (hereinafter referred to as "Plaintiff") filed a Civil Rights Complaint pursuant to 42 U.S.C. § 1983 on January 12, 2012, pursuant to the Court's Order re Leave to File Action without Prepayment of Full Filing Fee.

STATEMENT OF FACTS

Plaintiff alleges while housed at San Luis Obispo County Jail from March 19, 2011 through April 4, 2011 Defendants violated his First and Fourteenth Amendment rights. Plaintiff alleges Defendants retaliated against him. (See Complaint, at 5, Claim I.) Plaintiff also alleges that Defendants violated his First and Fourteenth Amendment rights when they "retaliated by beating Plaintiff for exercising his rights and for being a transgender." (See Complaint attached page, Claim II). Plaintiff also alleges Defendants violated his rights by denying him access to the law library, food and hygiene. (See Complaint, attached page, Claim III.)

Plaintiff names the following as Defendants: Sheriff Ian Parkinson; Deputy Ulloa; Deputy Mayes; Deputy Manpal; Deputy Adams and Sgt. Rushing, in both their individual and official capacities. Plaintiff also names the County of San Luis Obispo and the San Luis Obispo County Jail. (Complaint at 3-4.)

Plaintiff refers to an "Attached Memorandum of Points and Authority" for factual support for all three of his claims; however, this "Memorandum of Points and Authority" was not filed with his Complaint. Consequently, the Complaint contains no factual support for Plaintiff's claims.

Plaintiff seeks compensatory and punitive damages. (Complaint at 6.)

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 Fed.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, 556 U.S. 662, 129 S.Ct. 1937, 1949-50 (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 ...


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