Neely v. Romero

          ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND THIRTY-DAY DEADLINE

          DENNIS L. BECK UNITED STATES MAGISTRATE JUDGE

         Plaintiff Charles A. Neely ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action on April 29, 2016. Plaintiff names Golden State Modified Community Correctional Facility ("GSMCCF") Warden W. Wilson and GSMCCF Correctional Officer J. Romero as Defendants.^[1]

         A. SCREENING 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.

         Section 1983 provides a cause of action for the violation of Plaintiff's constitutional or other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Plaintiff's allegations must link the actions or omissions of each named defendant to a violation of his rights; there is no respondeat superior liability under section 1983. Iqbal, 556 U.S. at 676-77; Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones, 297 F.3d at 934. Plaintiff must present factual allegations sufficient to state a plausible claim for relief. Iqbal, 556 U.S. at 678-79; 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, 556 U.S. at 678; Moss, 572 F.3d at 969.

         B. ALLEGATIONS IN FIRST AMENDED COMPLAINT

         Plaintiff is currently incarcerated at GSMCCF, where the events at issue occurred.

         Plaintiff alleges that Defendant Romero slammed his right arm into his chest as he was exiting his housing unit. He refers to the attached appeals for additional factual information.

         According to Plaintiff's appeal, on January 27, 2015, Plaintiff exited the dorm with the first wave of chow release. He was sixth or seventh in the group when Defendant Romero slammed his right arm into his chest, physically stopping Plaintiff in his tracks. Defendant Romero then yelled, "slow down!" ECF No. 1, at 10. Plaintiff told Defendant Romero "do not touch me" and Defendant Romero then removed his arm from Plaintiff's chest and Plaintiff proceeded to chow. ECF No. 1, at 10.

         Plaintiff contends that "if CO Romero's intention was to slow down the release of chow, then he got it backwards!" ECF No. 1, at 10. Plaintiff believes that Defendant Romero used force against him "in a threatening manner that was completely unnecessary and a text book misuse of force according to the DOM and Title 15." ECF No. 1, at 10.

         Plaintiff further alleges that Defendant Wilson is directly responsible for the actions of her staff, and handled this situation inappropriately.

         C. ...