ORDER PARTIALLY ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING ACTION, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM (ECF Nos. 25, 29) ORDER STRIKING DUPLICATE / OBJECTIONS (ECF No. 30)
Plaintiff Marcus Leon Linthecome is a former state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On April 26, 2012, Plaintiff's complaint was dismissed for failure to state a claim, with leave to amend. (ECF No. 21.) On June 5, 2012, Plaintiff filed a first amended complaint which was stricken from the record for failing to comply with the Federal Rules of Civil Procedure on June 8, 2012. (ECF Nos. 23, 24.) Plaintiff was granted thirty days to file a first amended complaint. Plaintiff did not file an amended complaint and on July 25, 2012, findings and recommendations issued recommending dismissing this action for failure to state a claim. (ECF NO. 25.)
On July 31, 2012, Plaintiff filed a motion to amend his complaint and a motion for a change of venue. (ECF Nos. 26, 27.) On August 3, 2012, an order issued denying Plaintiff's motion to amend and motion for a change of venue. (ECF No. 28.) On August 10, 2012, duplicate objections to the findings and recommendations were filed. (ECF Nos. 29.)
Initially, due to an administrative error Plaintiff's objections to the findings and recommendations were filed twice. Therefore, the duplicate objection shall be stricken from the record.
In his objections to the findings and recommendations, Plaintiff states that he mailed the amended complaint to the court, but it was returned to him. The first amended complaint is submitted as an attachment to Plaintiff's objection. Although it is unclear if Plaintiff attempted to file the amended complaint within the thirty days provided by the Court, Plaintiff's first amended complaint shall be screened.
II. First Amended Complaint
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 "fails to state a claim on which relief may be granted," or that "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B).
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, 678, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1964-65 (2007)).
Prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, but the pleading standard is now higher, Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted), and to survive screening, Plaintiff's claims must be facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at 678-79, 129 S. Ct. at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The "sheer possibility that a defendant has acted unlawfully" is not sufficient, and "facts that are 'merely consistent with' a defendant's liability" falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949; Moss, 572 F.3d at 969.
Further, under section 1983, Plaintiff must demonstrate that each defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (quoting Twombly, 550 U.S. at 555, 127 S. Ct. 1955).
Plaintiff brings this action against approximately seventy five defendants, ranging from correctional officers to medical staff, employed at North Kern State Prison. Plaintiff alleges that these prison officials willingly took a role in allowing Plaintiff to be hurt and for attempts to be made on his life. (Objections 12,*fn1 ECF No. 30.) Plaintiff states that the Mexican Mafia is trying to kill him because a Latina woman accused him of raping her when he engaged in a three-some with her and his wife. (Id. at 9.) Plaintiff alleges that inmates and Mexican ...