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Robert G. Smith v. Gant

February 19, 2013

ROBERT G. SMITH
v.
GANT, ET AL.



The opinion of the court was delivered by: Honorable Jay C. Gandhi, United States Magistrate Judge

CIVIL MINUTES - GENERAL

Present: The Honorable Jay C. Gandhi, United States Magistrate Judge

Beatriz Martinez Deputy Clerk Court Reporter / Recorder Tape No. Attorneys Present for Plaintiffs: Attorneys Present for Defendants: None Present None Present Proceedings: (IN CHAMBERS) ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO FILE SECOND AMENDED COMPLAINT

Introduction and Summary

After the Court dismissed his initial Complaint, Plaintiff Robert G. Smith ("Plaintiff") filed a First Amended Complaint ("FAC"), which the Court has now screened pursuant to 28 U.S.C. §§ 1915(a) and 1915A.

The FAC names as defendants the following ten parties: (1-3) Officers Gant, Ellwart, and Pixley, (4) Doctor Brady, (5-6) Doe Supervising Sergeants and Lieutenants, (7) Captain Henderson, (8) the CDCR Hiring Authority at California State Prison, Los Angeles County ("CSP-LAC"), (9) the CDCR Warden at CSP-LAC, and (10) the CDCR Secretary-Director (collectively, "Defendants"). (FAC at 3-6.)*fn1 Defendants one through nine are sued in their individual capacities only, while Defendant ten is sued in both his or her individual and official capacities. (Id.)

Plaintiff's FAC alleges essentially the same claims and factual allegations as the Complaint, namely violations of the Eighth and Fourteenth Amendments. (Id. at 7.) Specifically, Plaintiff alleges that Defendants failed to protect him from imminent danger at the hands of fellow inmates and, moreover, promoted "racial inequalit[y]." (Id.)

Like the Complaint, the FAC also warrants dismissal, but Plaintiff is afforded one last opportunity to amend.

Legal Standards

The Prison Litigation Reform Act obligates the Court to review complaints filed by all persons proceeding in forma pauperis, and by prisoners seeking redress from governmental entities. See 28 U.S.C. §§ 1915(e)(2), 1915A. Under these provisions, the Court may sua sponte dismiss, "at any time," any prisoner civil rights action and all other in forma pauperis complaints which are frivolous or malicious, fail to state a claim, or seek damages from defendants who are immune. Id.; see also Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000).

The dismissal for failure to state a claim "can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). In making such a determination, a complaint's allegations must be accepted as true and construed in the light most favorable to plaintiff. Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1990). However, the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, a complaint must contain "enough facts to state a claim to relief that is plausible on its

Id. at 570. A claim has facial plausibility when the plaintiff pleads enough factual content to allow a court "to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Plaintiff Fails to State a Section 1983 Claim Against Many of the Defendants in their Individual Capacities

Plaintiff has sued all of the Defendants in their individual capacities, but fails to allege specific facts connecting many of them to a deprivation of ...


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