United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS RECOMMENDING ACTION
PROCEED ON CLAIM FOR DAMAGES AGAINST DEFENDANT BORGES AND
DISMISSING ALL OTHER FORMS OF RELIEF [ECF No. 18]
Gabriel Gomez is appearing pro se and in forma pauperis in
this civil rights action pursuant to 42 U.S.C. § 1983.
Plaintiff declined United States magistrate judge
jurisdiction, and this matter was referred to a United States
Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B)
and Local Rule 302.
before the Court is Plaintiff's first amended complaint,
filed on May 26, 2016.
February 2, 2016, the Court screened and dismissed
Plaintiff's original complaint, with leave to amend, for
failure to state a cognizable claim. (ECF No. 12.) After
Plaintiff failed to file an amended complaint or otherwise
respond to the Court's order within the thirty day time,
Findings and Recommendations recommending dismissal of the
action were issued on March 11, 2016. (ECF No. 13.)
April 19, 2016, the Court granted Plaintiff an extension of
time to file objections to the Findings and Recommendations.
(ECF No. 17.) In lieu of filing objections, Plaintiff filed
an amended complaint on May 26, 2016. In light of the fact
that Plaintiff filed an amended complaint, the Court vacated
the Findings and Recommendation on June 16, 2016. (ECF No.
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).
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).
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.