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Cleave Mccloud v. Sanchez

January 10, 2013

CLEAVE MCCLOUD, PLAINTIFF,
v.
SANCHEZ, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND THIRTY-DAY DEADLINE

Plaintiff Cleave McCloud ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on October 5, 2011. He names Correctional Officers Sanchez and B. R. Jackson as Defendants.*fn1

A. LEGAL STANDARD

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 fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).

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 (2009) (citing Bell Atl. Corp. v. Twombly, 550.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). While factual allegations are accepted as true, legal conclusions are not. Id.

B. SUMMARY OF COMPLAINT

Plaintiff alleges that in early 2011, Defendant Jackson called his wife and told her that he had uncovered a conspiracy by Defendant Sanchez. According to Defendant Jackson, Defendant Sanchez planned to shoot Plaintiff after having two inmates assault him. Plaintiff alleges that Defendant Sanchez conspired to kill him because he found out that Plaintiff was working for Defendant Jackson and Internal Affairs. Plaintiff also alleges that Defendant Sanchez knew he was a mental health patient and taking psychiatric medication to control his violent behavior. Plaintiff contends that although Defendant Jackson removed Defendant Sanchez and the two inmates from D-1, Defendant Sanchez has "substantially spread the word to officers and inmates that [Plaintiff] was working for Internal Affairs." Complaint, at 3. He states that because of this, "word will continue to spread and multiply and every inmate and staff member who they had me work against could soon find out and plan to retaliate against me." Complaint, at 3.

Plaintiff requested documentation of the conspiracy from Defendant Jackson so that he could file a lawsuit, but Defendant Jackson became hostile and refused. He also told Plaintiff that he would "deny it ever happened." Complaint, at 4. Plaintiff alleges that Defendant Jackson is covering up Defendant Sanchez's criminal conspiracy.

Plaintiff believes that his life is in constant danger because Defendant Sanchez has told others that Plaintiff worked for Defendant Jackson. He fears retaliation against him and his family.

C. ANALYSIS

1. Conspiracy

To state a claim for conspiracy under section 1983, Plaintiff must show the existence of an agreement or a meeting of the minds to violate his constitutional rights, and an actual deprivation of those constitutional rights. Avalos v. Baca, 596 F.3d 583, 592 (9th Cir. 2010); Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2001). "'To be liable, each participant in the conspiracy need not know the exact details of the plan, but each participant must at least share the common objective of the conspiracy.'" Franklin, 312 F.3d at 441 (quoting United Steel Workers, 865 F.2d at 1541).

Here, Plaintiff alleges that Defendant Sanchez conspired to kill him. However, he does not show, or even allege, the existence of an agreement or meeting of the minds between any Defendants relating to a conspiracy to kill him. Instead, his allegations concern only Defendant Sanchez. There can be no conspiracy with a single participant.

Plaintiff also fails to allege any actual harm. As discussed below, Plaintiff only speculates that inmates and staff members "could" find out he worked against them and "plan" to retaliate. Speculative allegations are insufficient. Plaintiff's conspiracy ...


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