Chase v. Lopez

          SCREENING ORDER ORDER DISMISSING SECOND AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM, WITH LEAVE TO AMEND (EFC NO. 11.) THIRTY DAY DEADLINE TO FILE THIRD AMENDED COMPLAINT

         I. BACKGROUND

         Kenny Chase (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983.

         On December 4, 2014, Plaintiff consented to the jurisdiction of a Magistrate Judge in this action pursuant to 28 U.S.C. § 636(c), and no other parties have made an appearance. (EFC No. 5). Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of California, the undersigned shall conduct any and all proceedings in the case until such time as reassignment to a District Judge is required. Local Rule Appendix A(k)(3).

         Plaintiff filed the Complaint commencing this action on November 3, 2014 as part of a purported class action brought by a fellow inmate and multiple co-plaintiffs. (ECF No. 1). The Court^[1] severed the co-plaintiffs’ claims, opened new cases for each of the co-plaintiffs, and ordered each plaintiff to file an amended complaint in his own case. (EFC No. 2). Therefore, Kenny Chase is now the only plaintiff in this action. On December 4, 2014, Plaintiff filed his own First Amended Complaint. (ECF No. 4).

         The Court screened Plaintiffs First Amended Complaint and entered an order on January 21, 2016, dismissing the Complaint for failure to state a claim, with leave to amend. (EFC No. 10). On February 16, 2016, Plaintiff filed a Second Amended Complaint, which is now before the Court for screening. (ECF No. 11).

         In the Second Amended Complaint, Plaintiff names only one defendant, Officer J. Lopez (“Defendant”). Plaintiff alleges that Defendant intentionally left his flashlight where a riot was ensuing so that other prisoners could use it as a weapon. Plaintiff alleges this caused him injury, harm, and psychological trauma. Plaintiff asks for compensatory and punitive damages.

         After screening Plaintiff’s Second Amended Complaint, the Court finds that it fails to state any cognizable claims under § 1983 against Defendant Lopez.

         II. 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 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 is required to 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)). While a plaintiff’s allegations are taken as true, 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). Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 556 U.S. at 678-79. The mere possibility of misconduct falls short of meeting this plausibility standard. Id.

         III. SUMMARY OF SECOND AMENDED COMPLAINT

         Plaintiff alleges that Defendant Lopez fled the scene of an ensuing racial riot among prisoners. Upon leaving, Defendant looked at Plaintiff, smiled, picked up his tools, and knowingly left his flashlight. Plaintiff further alleges that Defendant’s sole purpose in leaving the flashlight was so that the prisoners of Defendant’s nationality, Latino, could procure it and use it as a weapon against Plaintiff, an African prisoner.

         Plaintiff claims that Defendant Lopez violated his Eighth Amendment right against cruel and unusual punishment because Defendant failed to enforce a policy or take other reasonable steps when he knew the threat of violence was substantial. Plaintiff claims that as a result, he suffered injury, harm, and psychological trauma. Plaintiff asks for compensatory and punitive damages.

         IV. CRUEL AND ...