The opinion of the court was delivered by: John E. Mcdermott United States Magistrate Judge
MEMORANDUM AND ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND
On September 10, 2012, Gregory P. Carothers ("Plaintiff"), proceeding pro se and in forma pauperis, filed a civil rights complaint pursuant to 42 U.S.C. § 1983 ("Complaint").
On October 16, 2012, the Court issued a Memorandum and Order Dismissing Complaint With Leave to Amend. On November 15, 2012, Plaintiff filed a First Amended Complaint ("FAC").
In accordance with the provisions governing in forma pauperis proceedings, the Court must screen the FAC before ordering service to determine whether the action: (1) is frivolous or malicious; (2) fails to state a claim on which relief may be granted; or (3) seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2). This screening is governed by the following standards:
A complaint may be dismissed as a matter of law for failure to state a claim for two reasons: (1) the plaintiff fails to state a cognizable legal theory; or (2) the plaintiff has alleged insufficient facts under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). In determining whether a complaint states a claim on which relief may be granted, allegations of material fact are taken as true and construed in the light most favorable to the plaintiff. Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1988). However, "the liberal pleading standard . . . applies only to a plaintiff's factual allegations." Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989). "'[A] liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled.'" Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).
Although a complaint "does not need detailed factual allegations" to survive dismissal, a plaintiff must provide "more than mere labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (rejecting the traditional "no set of facts" standard set forth in Conley v. Gibson, 355 U.S. 41 (1957)). The complaint must contain factual allegations sufficient to rise above the "speculative level," Twombly, 550 U.S. at 555, or the merely possible or conceivable. Id. at 557, 570.
Simply put, the complaint must contain "enough facts to state a claim to relief that is plausible on its face." Id. at 570. A claim has facial plausibility when the complaint presents enough facts "to draw the reasonable inference that the defendant is liable." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This standard is not a probability requirement, but "it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. A complaint that pleads facts that are merely consistent with liability stops short of the line between possibility and plausibility. Id.
In a pro se civil rights case, the complaint must be construed liberally to afford plaintiff the benefit of any doubt. Karim-Panahi v. Los Angeles Police Dept, 839 F.2d 621, 623 (9th Cir. 1988). Unless it is clear that the deficiencies in a complaint cannot be cured, pro se litigants are generally entitled to a notice of a complaint's deficiencies and an opportunity to amend prior to the dismissal of an action. Lucas v. Dept. of Corrections, 66 F.3d 245, 248 (9th Cir. 1995) (per curiam); see also Karim-Panahi, 839 F.2d at 623. Only if it is absolutely clear that the deficiencies cannot be cured by amendment should the complaint be dismissed without leave to amend. Id. at 623; see also Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995); McQuillon v. Schwarzenegger, 369 F.3d 1091, 1099 (9th Cir. 2004) (where amendment would be futile, complaint may be dismissed without leave to amend).
After careful review and consideration of the FAC under the relevant standards and for the reasons discussed below, the Court finds that theFAC must be DISMISSED WITH LEAVE TO AMEND.
Plaintiff alleges that his Fourteenth Amendment rights to due process and equal protection were violated when he was placed in administrative segregation ("Ad-Seg") at the Santa Ana Jail in Santa Ana, California. Plaintiff alleges that the conditions in Ad-Seg are severely restrictive as compared to the general housing unit ("GHU"). Plaintiff further alleges that he was subject to cruel and unusual punishment in violation of the Eighth Amendment when officers failed to assist Plaintiff down a flight of stairs while he was in handcuffs and leg restraints, which caused him to fall and suffer injuries. (FAC at 5.)
Specifically, Plaintiff alleges that, on January14, 2012, upon admittance to the Jail, he was transferred out of the GHU and into Ad-Seg, Level 6, which was "the most severe category available. . . . Designation to this unit deprives a person from normal levels of liberty which is granted to inmates in GHU." Plaintiff outlines the differences between the conditions in the GHU and Ad-Seg in order to establish that the conditions in Ad-Seg are substantially more restrictive.
Plaintiff alleges that, on January 14, 2012, Officer P. Jiron conducted an interview with Plaintiff. During the interview, Jiron alleged that Plaintiff was a member of a gang and that, as a result of this gang ...