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Jerry A. Burton v. Duncan Fallon

May 16, 2012

JERRY A. BURTON, PLAINTIFF,
v.
DUNCAN FALLON, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Carla M. Woehrle United States Magistrate Judge

MEMORANDUM AND ORDER DISMISSING SECOND AMENDED COMPLAINT WITH LEAVE TO AMEND

For reasons stated below, Plaintiff's Second Amended Complaint is dismissed with leave to amend.

BACKGROUND AND PROCEDURAL HISTORY

The pro se plaintiff is a prisoner in state custody seeking to proceed in forma pauperis on a civil rights action naming governmental defendants and addressing prison conditions. His initial Complaint (docket no. 4) was received September 4, 2008, lodged September 5, 2008, and filed October 15, 2008, pursuant to the court's Order re Leave to File Action Without Prepayment of Full Filing Fee (docket no. 3).*fn2 The court dismissed the Complaint with leave to amend in a memorandum and order filed August 19, 2009. [Docket no. 7.] Plaintiff's First Amended Complaint was filed September 11, 2009 (docket no. 8), and was superceded by his Second Amended Complaint ("SAC") filed October 12, 2010 (docket no. 11).*fn3

STANDARD OF REVIEW

Because plaintiff is a prisoner, seeking to proceed in forma pauperis, on a civil rights complaint naming governmental defendants and addressing prison conditions, his complaint is subject to review under provisions of the Prison Litigation Reform Act of 1995 ("PLRA"), Pub. L. No. 104-134, 110 Stat. 1321 (1996). See 28 U.S.C. § 1915A(a). The court shall dismiss such a complaint, at any time, if it is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief from an immune defendant. See Lopez v. Smith, 203 F.3d 1122, 1126-27 and n.7 (9th Cir. 2000)(en banc); 28 U.S.C. § 1915(e)(2)(B)(in forma pauperis complaints); 28 U.S.C. § 1915A(b)(prisoner complaints against government defendants); 42 U.S.C. § 1997e(c)(complaints re: prison conditions).

PLRA review for failure to state a claim applies the same standard applied in reviewing a motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6). See Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). A Rule 12(b)(6) motion to dismiss for failure to state a claim tests the legal sufficiency of a claim for relief. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). "In deciding such a motion, all material allegations of the complaint are accepted as true, as well as all reasonable inferences to be drawn from them." Id. "A Rule 12(b)(6) dismissal may be based on either a 'lack of a cognizable legal theory' or 'the absence of sufficient facts alleged under a cognizable legal theory.'" Johnson v. Riverside Healthcare System, 534 F.3d 1116, 1121 (9th Cir. 2008)(quoting Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990)). A complaint may also be dismissed for failure to state a claim if it discloses a fact or defense that necessarily defeats the claim. Franklin v. Murphy, 745 F.2d 1221, 1228-29 (9th Cir. 1984) (citing 2A Moore's Federal Practice ¶ 12.08).

Possible failure to state a claim is reviewed under the pleading standard of Fed. R. Civ. P. 8(a)(2), which requires a "short and plain statement of the claim showing that the pleader is entitled to relief." Ashcroft v. Iqbal, 556 U.S. 662, 677-78, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009)("Iqbal"). The Rule 8 pleading standard "does not require detailed factual allegations," but does require more than merely "labels and conclusions or a formulaic recitation of the elements of a cause of action." Iqbal, 556 U.S. at 678 (citations and internal quotation marks omitted). Instead, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Id. (citations and internal quotation marks omitted). "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." Id. This plausibility standard is not a probability requirement, but does ask for more than mere possibility. Id.

In Iqbal, the Supreme Court applied a two-pronged approach to reviewing possible failure to state a claim. Id. at 678-81. First, the reviewing court may identify statements in a complaint that are actually conclusions, rather than factual allegations, and, as such, are not entitled to a presumption of truth. Id. at 678-79. It is the statements' conclusory nature, rather than any fanciful or nonsensical nature, "that disentitles them to the presumption of truth." Id. at 681. Second, the court presumes the truth of any remaining "well-pleaded factual allegations," and determines whether these allegations and reasonable inferences from them plausibly support a claim for relief. Id. at 679-80. The Ninth Circuit has found two common principles in Supreme Court law on the Rule 8 pleading standard:

First, to be entitled to the presumption of truth, allegations in a complaint . . . may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively. Second, the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.

Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011), cert. denied, 80 U.S.L.W. 3462 (U.S. Apr. 30, 2012)(No. 11-834); see also Hydrick v. Hunter, 669 F.3d 937, 940-41 (9th Cir. 2012)(on Iqbal and Starr).

If the court finds that a complaint should be dismissed for failure to state a claim, the court may dismiss with or without leave to amend. Lopez v. Smith, 203 F.3d 1122, 1126-30 (9th Cir. 2000)(en banc). Leave to amend should be granted if it appears that defects can be corrected, especially if the plaintiff is pro se. Id. at 1130-31; see also Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). If, however, after careful consideration, it is clear that a complaint cannot be cured by amendment, the court may dismiss without leave to amend. Cato, 70 F.3d at 1107-11.

THE SECOND AMENDED COMPLAINT

Although Plaintiff is now at Pelican Bay State Prison, the SAC concerns events that allegedly occurred when he was at California State Prison, Los Angeles County ("CSP-LAC"), in this district. As noted above, the SAC names nine state prison officers as individual capacity defendants: (1) Chief Deputy Warden Fallon, (2) Captain Fortson, (3) Captain Henderson, (4) Lieutenant Harris, (5) Lieutenant Foote, (6) Sergeant Reaume, (7) Officer Luu, (8) Officer Clemons, and (9) Chairperson Fischer. [Caption, SAC p.1.]*fn4 Plaintiff seeks declaratory and injunctive relief and monetary damages. [SAC pp. 26-27.] He sets forth twelve "causes of action" ("COAs") as follows: COA 1: First Amendment - Access to Courts;

COA 2: First Amendment - Right to Association;

COA 3: First Amendment - Right to ...


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