United States District Court, E.D. California
CHARLES A. NEELY, Plaintiff,
ROMERO, et al., Defendants.
ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND
L. BECK UNITED STATES MAGISTRATE JUDGE
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
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. §
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.
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
ALLEGATIONS IN FIRST AMENDED COMPLAINT
is currently incarcerated at GSMCCF, where the events at
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.
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.
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.
further alleges that Defendant Wilson is directly responsible
for the actions of her staff, and handled this situation