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Rojo v. Paramo

United States District Court, S.D. California

June 10, 2014

JAMES E. ROJO, CDCR #J-53355, Plaintiff,
v.
D. PARAMO, Warden; A. HERNANDEZ, Deputy Warden; Mr. BEARD, Secretary CDCR; JONES, Correctional Officer; SMITH, Correctional Officer; Dr. M. GARIKAPARTHI, Defendants.

ORDER: 1) DISMISSING SECOND AMENDED COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(E)(2)(B) AND § 1915A(B)(1) (ECF DOC. NO. 15) AND 2) DENYING PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION (ECF DOC. NO. 20)

LARRY ALAN BURNS, District Judge.

I. Procedural History

On May 8, 2013, James E. Rojo ("Plaintiff"), a state prisoner currently incarcerated at the Richard J. Donovan Correctional Facility ("RJD") in San Diego, California and proceeding pro se, initiated this civil action pursuant to 42 U.S.C. § 1983 in the Northern District of California.

On September 17, 2013, United States District Judge William H. Orrick determined that Plaintiff's claims arose at RJD; therefore, venue was proper in the Southern District of California and the matter was transferred here pursuant to 28 U.S.C. §§ 84(d), 1391(b) and 1406(a) (ECF Doc. No. 8). Judge Orrick did not rule on Plaintiff's Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a), nor did he screen Plaintiff's Complaint pursuant to 28 U.S.C. § 1915(e)(2) or § 1915A prior to transfer.

On October 25, 2013, this Court granted Plaintiff's Motion to Proceed IFP, but simultaneously dismissed his Complaint for failing to state a claim upon which relief could be granted pursuant to 28 U.S.C. § 1915(e)(2) & 1915A(b) (ECF Doc. No. 11). Specifically, the Court dismissed Plaintiff's claims against RJD on Eleventh Amendment grounds, id. at 5, dismissed his claims against the Director/Secretary of the CDCR and RJD Wardens Paramo and Hernandez because Plaintiff failed to allege any individualized wrongdoing on their parts, id. at 5-6, dismissed his allegations of verbal harassment on the part of Correctional Officers Smith and Jones because he failed to allege facts which might give rise to an Eighth Amendment violation, id. at 6, and dismissed Plaintiff's vague mention of "being denied medical treatment" and deprived of his property because his Complaint contained only "naked assertions" and no "further factual enhancement" sufficient to state a plausible claim for relief under either the Eighth or Fourteenth Amendments. Id. at 7-8. Plaintiff was granted leave to file an Amended Complaint in order to correct the deficiencies identified in the Court's Order. Id. at 8-9.

Plaintiff filed a First Amended Complaint ("FAC") (ECF Doc. No. 13), but it too was dismissed sua sponte for failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b) (ECF Doc. No. 14). Because Plaintiff's FAC continued to name RJD, its Wardens, and the Secretary of the CDCR as Defendants, and continued to suffer from the same pleading problems noted in the Court's October 25, 2013 Order, it was dismissed for failing to state a claim upon which relief can be granted. Id. at 7. To the extent Plaintiff appeared, for the first time, to specifically challenge the validity of a three-month stint in Administrative Segregation, however, he was advised of the pleading requirements necessary to show a liberty interest under the Fourteenth Amendment and Sandin v. Conner, 515 U.S. 472, 481-84 (1995), and provided another opportunity to amend. Id. at 5-7.

On May 16, 2014, Plaintiff filed his Second Amended Complaint ("SAC") (ECF Doc. No. 15), which re-names all previously named parties except RJD, [1] and adds an additional defendant, Dr. M. Garikaparthi. See SAC at 1, 2. Two weeks later, on May 30, 2014, Plaintiff also submitted a Motion for Preliminary Injunction (ECF Doc. No. 20).

II. Sua Sponte Screening Pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b)

A. Standard of Review

As Plaintiff is now well aware, the Court is obligated by the Prison Litigation Reform Act ("PLRA") to review complaints filed by all persons proceeding IFP and by those, like Plaintiff, who are "incarcerated or detained in any facility [and] accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, probation, pretrial release, or diversionary program, " "as soon as practicable after docketing." See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under the PLRA, the Court must sua sponte dismiss complaints, or any portions thereof, which are frivolous, malicious, fail to state a claim, or which seek damages from defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)).

All complaints 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)). "Determining whether a complaint states a plausible claim for relief [is]... a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. The "mere possibility of misconduct" falls short of meeting this plausibility standard. Id.

"When there are well-pleaded factual allegations, a court should assume their veracity, and then determine whether they plausibly give rise to an entitlement to relief." Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) ("[W]hen determining whether a complaint states a claim, a court must accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff."); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that § 1915(e)(2) "parallels the language of Federal Rule of Civil Procedure 12(b)(6)").

However, while the court "ha[s] an obligation where the petitioner is pro se, particularly in civil rights cases, to construe the pleadings liberally and to afford the petitioner the benefit of any doubt, " Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not, in so doing, "supply essential elements of claims that were not initially pled." Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). "Vague and ...


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