The opinion of the court was delivered by: VICTOR B. Kenton United States Magistrate Judge
ORDER RE DISMISSAL OF FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND
Pro se Plaintiff Cesar Garcia (hereinafter referred to as "Plaintiff") filed a Complaint for "Civil Rights Pursuant to 42 U.S.C. § 1983" on October 11, 2011, pursuant to the Court's Order re Leave to File Action Without Prepayment of Full Filing Fee.
On October 18, 2011 the Court issued an Order re Dismissal with Leave to Amend.
On October 27, 2011 Plaintiff filed a First Amended Complaint.
Plaintiff has named as Defendants Indio Police Officer Chris Peskatela and Sheriff Deputies Matt Diaz and Reicko in their official capacities. (First Amended Complaint at 3) Plaintiff alleges that Defendants' actions were unprofessional, negligent and unlawful. Id.
Plaintiff alleges that Defendant Officer Peskatela questioned Plaintiff at North Kern State Prison in November of 2005 regarding a high profile murder case. Plaintiff alleges he cooperated with the detectives and stated that he feared for his and his family's well being. (First Amended Complaint, attached page) Plaintiff alleges that he strongly believes that Defendant Officer Peskatela disregarded Plaintiff's safety based on a 15-year vendetta against him. Id. Plaintiff alleges that Defendant Officer Peskatela violated Plaintiff's rights by failing to place him as a protected witness. (First Amended Complaint at 3, 5, attached page.)
Plaintiff alleges in January 2009 he was housed in the Indio Jail Unit Tank #4 where he was brutally and severely attacked by 10 inmates (attached page). Plaintiff alleges that certain court documents were distributed to his attackers which listed Plaintiff as a main witness in a high profile murder case. Plaintiff had no knowledge of the documents' existence until the day of the assault. Plaintiff alleges that several inmates brought it to Defendant Deputy Diaz' attention that he should know why the assault happened. Plaintiff alleges Defendant Deputy Diaz was unprofessional and negligent and lacked concern for Plaintiff's safety. Plaintiff also alleges that Defendant Deputy Reicko did nothing to protect Plaintiff from threats. (Attached pages)
Plaintiff alleges in March of 2009, Defendant Deputy Reicko approached Plaintiff along with Defendant Deputy Diaz asking questions about an ongoing investigation. Defendants Deputy Diaz and Deputy Reicko mocked Plaintiff and ridiculed him regarding the prior assault. Plaintiff alleges Defendant Deputy Reicko has been negligent and unprofessional and lacks concern for Plaintiff's safety.
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 ...