United States District Court, E.D. California
ORDER REQUIRING PLAINTIFF EITHER TO FILE AMENDED COMPLAINT OR TO NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON CLAIMS IDENTIFIED HEREIN
STANLEY A. BOONE, Magistrate Judge.
Plaintiff Dereck Gollubier is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
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 (2009) (citing Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555 (2007)). Plaintiff must demonstrate that each named defendant personally participated in the deprivation of his rights. Iqbal , 556 U.S. at 676-677; Simmons v. Navajo County, Ariz. , 609 F.3d 1011, 1020-1021 (9th Cir. 2010).
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; Moss v. U.S. Secret Serv. , 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; Moss , 572 F.3d at 969.
Plaintiff was tackled with his hands behind his back. He was then kicked and dragged on the concrete and Sergeants Ybarra and Oliver called him "little faggot" and "pussy." Plaintiff was slammed head first into the holding case sever times as Sergeant Oliver screamed, "you fucking faggot." "You want to say that word again... huh faggot?" Inmate Kenneth Alsip, witnessed the incident and heard the sergeants comments.
These two sergeants did not like the word Plaintiff used to describe a Latino inmate who was going to commit an assault and battery on him. Plaintiff suffered bruising and bleeding on the top of his right shoulder which resulted in a permanent scar.
When correctional officers Thomas and Williams escorted Plaintiff to the medical department, the two sergeants instructed them to take Plaintiff to their office before going to medical. The officers complied with the request. Sergeant Ybarra told Plaintiff to avoid making any medical report of the injuries stating, "just say you don't have any injuries and go back to your housing unit - and program." Later, Sergeants Ybarra and Oliver charged Plaintiff with assault and the case was referred to the District Attorney's office for prosecution.
Sergeants Ybarra and Oliver issued a false rules violation report for assault in retaliation for filing a medical report of his injuries. The Institutional Classification Committee already ...