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Perez v. Junious

United States District Court, E.D. California

December 11, 2014

RAYMOND PEREZ, Plaintiff,
v.
JUNIOUS, Defendant

Raymond Perez, Plaintiff, Pro se, Susanville, CA.

ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND (Docs. 15, 16) 30-DAY DEADLINE

Jennifer L. Thurston, UNITED STATES MAGISTRATE JUDGE.

I. Background

Plaintiff, Raymond Perez, is a state prisoner proceeding pro se and in forma pauperis in this in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on March 31, 2014. (Doc. 1.) The Complaint was screened and dismissed with leave to amend for failure to state a claim. (Doc. 8.) Plaintiff's First Amended Complaint is now before the Court for screening. (Doc. 15, 16.)[1]

A. Screening Requirement

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, malicious, 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); 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).

B. Summary of the First Amended Complaint

Plaintiff complains of acts that occurred while he was an inmate at North Kern State Prison (" NKSP") in Delano, California. Plaintiff names the following Defendants: Warden Maurice Junious; Correctional Officers B. Gentry #72824, Mejia #321240, N. Marquez #51799, and C. Laigo #59887; Lieutenants Ramois #46098 and J. Lacrosse; Facility B Captain M. Stevens; and T. Norton, CDO. Plaintiff seeks monetary relief and wants the defendants to be reprimanded.

Plaintiff delineates two claims: (1) " Civil right violated pursuant to 42 U.S.C. § 1983 denied due process, violated 42 U.S.C.A. § 1997c(a) access to court under color of state law denied adequate medical care" (Doc. 15, p. 3) and (2) " Eighth Amendment protection from physical brutality right to safe condition Rhodes v. Chapman 452 U.S. 337 346, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981), Estelle v. Gamble 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)" ( id., at p. 4).

As to his first claim ( id., pp. 3-4), Plaintiff alleges:[2]

On the above date[3] I was clearly protecting myself while doing so I became a victim of physical brutality denied decent condition also denied Eighth Amendment protection censorship of mail beaten on head causing real significant illness and disability medical condition a severe limitation of function or ability to preform daily activities of life that may cause premature death. Now I need eye glasses always having head aces always needing medication trying to control pain black out falling out trying to get Olsen review of medical record but deny of them.

As to his second claim ( id., at p. 4), Plaintiff alleges:

Palmer v. Johnson 193 F.3d 346 (5th Cir. 1999) C/O B. Gentry did in fact pepper spray and struck me three times head thigh area and elbow I was knocked unconscious can't remember much more until C/O grab me placing hand cuff(s) on me without any medical attention since incident been having multiple medical problem due to daily chronic care headaches which told I will have to deal with rest of my life.

As discussed below, these allegations fail to state any cognizable claims. Plaintiff may be able to amend to correct the deficiencies in his pleading so as to state a cognizable claim. Thus, he is given leave to file a second amended complaint.

C. Pleading Requirements

1. Federal Rule of Civil Procedure 8(a)

" Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions, " none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); Fed. R. Civ. Pro. 8(a). A complaint must contain " a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. Pro. 8(a). " Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. However, " the liberal pleading standard . . . applies only to a plaintiff's factual allegations." Neitzke v. Williams, 490 U.S. 319, 330 n.9, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). " [A] liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled." Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982). " 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).

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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Plaintiff must set forth " sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 556 U.S. at 678, quoting Twombly, 550 U.S. at 555. Factual allegations are accepted as true, but legal conclusions are not. Iqbal . at 678; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009); Twombly, 550 U.S. at 556-557. While " plaintiffs [now] face a higher burden of pleadings facts .., " Al-Kidd v. Ashcroft, 580 F.3d 949, 977 (9th Cir. 2009), the pleadings of pro se prisoners are still construed liberally and are afforded the benefit of any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). However, courts are not required to indulge unwarranted inferences. Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). The " sheer possibility that a defendant has acted unlawfully" is not sufficient, and " facts that are 'merely consistent with' a defendant's liability" fall short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949; Moss, 572 F.3d at 969.

If Plaintiff chooses to file a second amended complaint, he should endeavor to make it as concise as possible. He should merely state which of his constitutional rights he feels were violated by each Defendant and its factual basis.

2. Linkage Requirement

The Civil Rights Act under which this action was filed provides:

Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an ...

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