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Anderson v. Tallerico

United States District Court, Ninth Circuit

June 27, 2013

DION ANDERSON, Petitioner,
v.
S. TALLERICO, Defendant.

ORDER DISMISSING THE FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND (Doc. 13) FINDING AND RECOMMENDATION THAT PLAINTIFF'S MOTION FOR INJUNCTIVE RELIEF BE DENIED (Doc. 14)

JENNIFER L. THURSTON, Magistrate Judge.

Plaintiff Dion Anderson ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in a prisoner civil rights action pursuant to 42 U.S.C. § 1983. The Court dismissed Plaintiff's original complaint on May 7, 2013, but granted him leave to file an amended complaint. (Doc. 11 at 9). Before the Court is Plaintiff's 16-page first amended complaint (Doc. 13) filed on June 6, 2013 and his 123-page motion for preliminary injunction (Doc. 14) filed the following day.

As required, the Court screens Plaintiff's first amended complaint (Doc. 13) and recommends the first amended complaint be DISMISSED without leave to amend. Further, the Court recommends that Plaintiff's motion for preliminary injunction be DENIED.

I. FIRST AMENDED COMPLAINT

A. Screening Requirement

As Plaintiff seeks redress from governmental employees in a civil action, the Court is required to screen his complaint in order to identify any cognizable claims. 28 U.S.C. § 1915A(a)-(b). The Court shall "dismiss the complaint, or any portion of the complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. § 1915A(b); 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).

B. Pleading Standards

1. Fed.R.Civ.P. 8(a)

"Pro se documents are to be liberally construed" and "must be held to less stringent standards than formal pleadings drafted by lawyers.'" Estelle v. Gamble , 429 U.S. 97, 106 (1976) (quoting Haines v. Kerner , 404 U.S. 519, 520-21 (1972)). "[They] can only be dismissed for failure to state a claim if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Id . Under Federal Rule of Civil Procedure 8(a), "[a] pleading that states a claim for relief must contain: (1) a short and plaint statement of the grounds for the court's jurisdiction, ...; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought." Fed.R.Civ.P. 8(a). Each allegation must be simple, concise, and direct. Fed.R.Civ.P. 8(d)(1). While a complaint "does not need detailed factual allegations, a plaintiff's obligation to provide the grounds' of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555-56 (2007) (internal quotation marks and citations omitted).

In analyzing a pleading, the Court sets aside all conclusory allegations aside and accepts all non-conclusory factual allegations as true. Ashcroft v. Iqbal , 556 U.S. 662, 676-684 (2009).In doing so, it determines whether there are sufficient factual allegations to state a claim for relief that is plausible on its face. Id . "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." (Id. at 678) (internal quotation marks and citation omitted). In determining plausibility, the Court is permitted "to draw on its judicial experience and common sense." Id. at 679.

As a preliminary matter, in granting Plaintiff leave to amend his complaint, the Court expressly mandated that "Plaintiff's first amended complaint, including the attached exhibits, SHALL NOT exceed 20 pages." (Doc. 11 at 8) (emphasis in the original). Plaintiff was also advised that he must set forth a plain and concise statement of his claim. Fed.R.Civ.P. 8(a); Doc. 11 at 2. However, in the first amended complaint, Plaintiff indicates that he desires the Court "to [O]rder [the] attached "Preliminary Injunctive Relief" (Id. at 4) as the relief he seeks. This motion is 123 pages long. (Doc. 14)

Because Plaintiff has been well-advised as to an acceptable length of his complaint, the Court presumes that Plaintiff's reference to his motion for preliminary injunction simply is an indication that he seeks only injunctive relief if he is successful in this litigation and not as an attempt to incorporate the motion into the complaint. In any event, the Court declines to consider the motion when evaluating the sufficiency of the complaint.

2. 42 U.S.C. § 1983

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. Gates , 947 F.2d 1418, 1420 (9th Cir. 1991). The causation requirement of § 1983 is satisfied only if a plaintiff demonstrates that a defendant did an affirmative act, participated in another's affirmative act, or omitted to perform an act which he was legally required to do that caused the deprivation of which the plaintiff complains. Arnold v. IBM , 637 F.2d 1350, 1355 (9th Cir. 1981) ( quoting Johnson v. Duffy , 588 F.2d 740, 743-44 (9th Cir. 1978)). 42 ...


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