The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge
ORDER DISMISSING SECOND AMENDED COMPLAINT WITH LEAVE TO AMEND (Doc. 11)
Robert Sims is a civil detainee proceeding in forma pauperisand pro se in this action.
Under 28 U.S.C. § 1915(e)(2)(B), the Court must dismiss a case in which the plaintiff proceeds in forma pauperis if the court determines that the case "fails to state a claim on which relief may be granted" or is "frivolous." A claim is frivolous "when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them." Denton v. Hernandez, 504 U.S. 25, 32-33 (1992).
General rules for pleading complaints are governed by the Federal Rules of Civil Procedure. A pleading stating a claim for relief must include a statement affirming the court‟s jurisdiction, "a short and plain statement of the claim showing the pleader is entitled to relief; and . . . a demand for the relief sought, which may include relief in the alternative or different types of relief." Fed. R. Civ. P. 2 8(a). The Federal Rules adopt a flexible pleading policy, and pro sepleadings are held to "less 3 stringent standards" than pleadings by attorneys. Haines v. Kerner, 404 U.S. 519, 521-21 (1972). 4
A complaint must give fair notice and state the elements of the plaintiff‟s claim in a plain and 5 succinct manner. Jones v. Cmty Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984). The 6 purpose of the complaint is to give the defendant fair notice of the claims against him, and the grounds 7 upon which the complaint stands. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). The 8 Supreme Court noted, 9 Rule 8 does not require detailed factual allegations, but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement.
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal quotation marks and citations omitted). Conclusory and vague allegations do not support a cause of action. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). The Court clarified further, [A] complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." [Citation]. 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. [Citation]. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. [Citation]. Where a complaint pleads facts that are "merely consistent with" a defendant‟s liability, it "stops short of the line between possibility and plausibility of "entitlement to relief.‟ Iqbal, 129 S. Ct. at 1949 (citations omitted). When factual allegations are well-pled, a court should assume their truth and determine whether the facts would make the plaintiff entitled to relief; conclusions in the pleading are not entitled to the same assumption of truth. Id. The Court may grant leave to amend a complaint to the extent that deficiencies of the complaint can be cured by an amendment. Lopez v. Smith, 203 F.3d 1122, 1127-28 (9th Cir. 2000) (en banc).
In order to sustain a cause of action under 42 U.S.C. § 1983, a plaintiff must show (i) that he suffered a violation of rights protected by the Constitution or created by federal statute, and (ii) that the violation was proximately caused by a person acting under color of state law. See Crumpton v. 2 Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). The causation requirement of § 1983 is satisfied only if a 3 plaintiff demonstrates that a defendant did an affirmative act, participated in another's affirmative act, 4 or omitted to perform an act which he was legally required to do that caused the deprivation 5 complained of. Arnold v. IBM, 637 F.2d 1350, 1355 (9th Cir. 1981) (quoting Johnson v. Duffy, 588 6 F.2d 740, 743-44 (9th Cir. 1978)). 7
III. PLAINTIFF'S ALLEGATIONS 8
In his Second Amended Complaint, Plaintiff alleges that on October 14, 2009, he was an 9 inmate at Wasco State Prison. (Doc. 11 at 1-2) On that date, he was ordered to "get down" but did not do so. Id. Correctional Officer A. Najera observed that Plaintiff refused to "get down" and Najera again ordered Sims to do so. Id. at 2. Sims refused and said, "Do what you have to do." Id. In response, Najera struck Plaintiff on the thigh with her baton. Id. As a result, Plaintiff lowered himself to the ground. Id.
Plaintiff contends that Najera knew that he was mentally ill and he seems to imply that his mental illness was the reason Plaintiff failed to respond appropriately to the order to "get down." (Doc. 11 at 2) Plaintiff contends that Najera struck Plaintiff maliciously despite knowing that his mental illness interfered with his ability to comply with the order. Id. Plaintiff claims that this is a violation of the Americans with Disabilities Act.
V. DISCUSSION AND ANALYSIS
A. The Americans with ...