United States District Court, E.D. California
AMENDED FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL WITHOUT LEAVE TO AMEND; ORDER VACATING PREVIOUS FINDINGS AND RECOMMENDATIONS (ECF No. 1)
GARY S. AUSTIN, Magistrate Judge.
Plaintiff Robert Banuelos ("Plaintiff"), appearing pro se, filed a Complaint (the "Complaint") on January 5, 2015. (ECF No. 1.) The Complaint alleges violations of 42 U.S.C. § 1983 and 42 U.S.C. § 1981 against Diane Martinez (the "Defendant"). Id. The Court previously screened the Complaint and issued Findings and Recommendations recommending dismissal of the Complaint without leave to amend on April 28, 2015. (ECF No. 9.) After further review, the Court VACATES its previous Findings and Recommendations and issues the following Amended Findings and Recommendations.
II. LEGAL STANDARD
Under 28 U.S.C. § 1915(e)(2), the Court must conduct a review of a complaint to determine whether it "state[s] a claim on which relief may be granted, " is "frivolous or malicious, " or "seek[s] monetary relief against a defendant who is immune from such relief." If the Court determines that the complaint fails to state a claim, it must be dismissed. Id. Leave to amend may be granted to the extent that the deficiencies of the complaint can be cured by amendment. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).
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, 127 S.Ct. 1955, 1964-65 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to state a claim that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. at 663 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusion are not. Id. at 678.
In determining whether a complaint states an actionable claim, the Court must accept the allegations in the complaint as true, Hospital Bldg. Co. v. Trs. of Rex Hospital, 425 U.S. 738, 740 (1976), construe pro se pleadings liberally in the light most favorable to the Plaintiff, Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000), and resolve all doubts in the Plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). Pleadings of pro se plaintiffs "must be held to less stringent standards than formal pleadings drafted by lawyers." Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that pro se complaints should continue to be liberally construed after Iqbal ).
III. PLAINTIFF'S ALLEGATIONS
The Complaint revolves around Plaintiff's attempts to enter various California state offices. Plaintiff appears to have been involved in a dispute between the California Labor Commissioner and a company called FNF, Inc. While that dispute was pending, Plaintiff visited the office of State Assemblyman Henry T. Perea in Fresno, presumably to seek assistance with respect to the FNF, Inc. case. While there, Plaintiff met with an employee of Assemblyman Perea's office (who is the defendant in Banuelos v. Garcia, Case No. 1:15-cv-00011-LJO-GSA).
On January 22, 2013, Plaintiff visited the Labor Commissioner's Fresno office, where he encountered Defendant, who worked as a receptionist in the office lobby. Following events that are not recounted in the Complaint, Defendant informed Plaintiff that he would need to leave the building. Plaintiff refused and two California Highway Patrol officers were summoned to remove him. The officers told Plaintiff that he was not wanted in the building and escorted him out.
Plaintiff concludes by asserting violations of 42 U.S.C. §§ 1981 and 1983 on the basis that he was denied the right to enter a state building.
a. 42 U.S.C. § 1983
i. First Amendment