United States District Court, E.D. California
ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND
DENNIS L. BECK, District Judge.
Plaintiff Anthony Turner ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action. He filed this action on October 28, 2013, and names Pleasant Valley State Prison ("PVSP") Warden P. D. Brazelton, PVSP Sergeant Thomas and PVSP Correctional Officer Montano as Defendants.
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 , 129 S.Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to state a claim that is plausible on its face.'" Id . (quoting Twombly , 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id.
Bivens actions and actions under 42 U.S.C. § 1983 "are identical save for the replacement of a state actor under § 1983 by a federal actor under Bivens." Van Strum v. Lawn , 940 F.2d 406, 409 (9th Cir.1991). Under Bivens, a plaintiff may sue a federal officer in his or her individual capacity for damages for violating the plaintiff's constitutional rights. See Bivens, 403 U.S. at 397. To state a claim a plaintiff must allege: (1) that a right secured by the Constitution of the United States was violated, and (2) that the alleged violation was committed by a federal actor.
Plaintiff must also demonstrate that each defendant personally participated in the deprivation of his rights. Id. at 1949. This requires the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal , 129 S.Ct. at 1949-50; Moss v. U.S. Secret Service , 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal , 129 S.Ct. at 1949-50; Moss , 572 F.3d at 969.
B. SUMMARY OF PLAINTIFF'S ALLEGATIONS
Plaintiff is currently incarcerated at PVSP, where the event at issue occurred.
Plaintiff alleges that while waiting in line to enter the education building, Defendant Thomas told him to tuck in his shirt. Plaintiff walked out of the line because Defendant Thomas wanted to talk to him. Defendant Thomas told Plaintiff that he had no pride in himself. Plaintiff told him that he did have pride in himself.
Defendant Montano, who was standing at the school door taking attendance, came up to Plaintiff and hit him in the back with such force that Plaintiff almost fell. Plaintiff asked Defendant Montano what that was for, and Defendant Montano told Plaintiff that he "was talking shit" to his sergeant. Plaintiff denied it and said that they were having a civil conversation.
Plaintiff cites to the attached 602, which indicates that the incident occurred on March 12, 2013. It includes allegations that Defendant Thomas let the assault occur.