United States District Court, S.D. California
ORDER DISMISSING SECOND AMENDED COMPLAINT FOR FAILURE
TO STATE A CLAIM
CYNTHIA BASHANT, UNITED STATES DISTRICT JUDGE
I.
PROCEDURAL HISTORY
On
January 4, 2016, Larry Salas (“Plaintiff”),
currently incarcerated at the California Rehabilitation
Center located in Norco, California, and proceeding pro se,
filed a civil rights complaint (“Compl.”)
pursuant to 42 U.S.C. § 1983 (ECF No. 1). Plaintiff did
not prepay the civil filing fee required by 28 U.S.C. §
1914(a) when he filed his Complaint; instead, he filed two
Motions to Proceed In Forma Pauperis
(“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF
Nos. 3, 5). This Court GRANTED Plaintiff’s Motions and
sua sponte DISMISSED his Complaint for failing to state a
claim upon which relief could be granted pursuant to 28
U.S.C. §§ 1915(e)(2) & 1915A. (ECF No. 6.)
Plaintiff was granted leave to file an amended complaint in
order to correct the deficiencies of pleading identified in
the Court’s Order. (Id.) On April 15, 2016,
Plaintiff filed his First Amended Complaint
(“FAC”). (ECF No. 7.) Once again, the Court found
that Plaintiff had failed to state a claim upon which relief
could be granted and DISMISSED his FAC. (ECF No. 8.)
Plaintiff was given one final opportunity to amend his
pleading. (Id.) On May 25, 2016, Plaintiff filed his
Second Amended Complaint (“SAC”). (ECF No. 9.)
II. SUA
SPONTE SCREENING PER 28 U.S.C. §§ 1915(e)(2)(B) and
1915A(b)
A.
Standard of Review
As the
Court stated in its previous Orders, notwithstanding
Plaintiff’s IFP status or the payment of any filing
fees, the Prison Litigation Reform Act (“PLRA”)
requires the Court to review complaints filed by all persons
proceeding IFP and by those, like Plaintiff, who are
“incarcerated or detained in any facility [and] accused
of, sentenced for, or adjudicated delinquent for, violations
of criminal law or the terms or conditions of parole,
probation, pretrial release, or diversionary program, ”
“as soon as practicable after docketing.”
See 28 U.S.C. §§ 1915(e)(2) and 1915A(b).
Under these statutes, the Court must sua sponte dismiss any
complaint, or any portion of a complaint, which is frivolous,
malicious, fails to state a claim, or seeks damages from
defendants who are immune. See 28 U.S.C.
§§ 1915(e)(2)(B) and 1915A(b); Lopez v.
Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)
(§ 1915(e)(2)); Rhodes v. Robinson, 621 F.3d
1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. §
1915A(b)).
All
complaints 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)). “Determining whether a complaint
states a plausible claim for relief [is] . . . a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.”
Id. The “mere possibility of misconduct”
falls short of meeting this plausibility standard. Id.;
see also Moss v. U.S. Secret Service, 572 F.3d 962, 969
(9th Cir. 2009).
“When
there are well-pleaded factual allegations, a court should
assume their veracity, and then determine whether they
plausibly give rise to an entitlement to relief.”
Iqbal, 556 U.S. at 679; see also Resnick v.
Hayes, 213 F.3d 443, 447 (9th Cir. 2000) (“[W]hen
determining whether a complaint states a claim, a court must
accept as true all allegations of material fact and must
construe those facts in the light most favorable to the
plaintiff.”); Barren v. Harrington, 152 F.3d
1193, 1194 (9th Cir. 1998) (noting that § 1915(e)(2)
“parallels the language of Federal Rule of Civil
Procedure 12(b)(6)”).
However,
while the court “ha[s] an obligation where the
petitioner is pro se, particularly in civil rights cases, to
construe the pleadings liberally and to afford the petitioner
the benefit of any doubt, ” Hebbe v. Pliler,
627 F.3d 338, 342 & n. 7 (9th Cir. 2010) (citing
Bretz v. Kelman, 773 F.2d 1026, 1027 n. 1 (9th Cir.
1985)), it may not “supply essential elements of claims
that were not initially pled.” Ivey v. Bd. of
Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th
Cir. 1982). “Vague and conclusory allegations of
official participation in civil rights violations” are
simply not “sufficient to withstand a motion to
dismiss.” Id.
B. 42
U.S.C. § 1983
“Section
1983 creates a private right of action against individuals
who, acting under color of state law, violate federal
constitutional or statutory rights.” Devereaux v.
Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983
“is not itself a source of substantive rights, but
merely provides a method for vindicating federal rights
elsewhere conferred.” Graham v. Connor, 490
U.S. 386, 393-94 (1989) (internal quotation marks and
citations omitted). “To establish § 1983
liability, a plaintiff must show both (1) deprivation of a
right secured by the Constitution and laws of the United
States, and (2) that the deprivation was committed by a
person acting under color of state law.” Tsao v.
Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir.
2012).
C. Due
Process Claim
In his
SAC, Plaintiff has added a “due process” claim
that he did not raise in his previous filings. See
SAC at 3. In this claim, Plaintiff alleges that Defendant
“John Doe Sheriff Deputy assumed Plaintiff was arguing
and spitting on the nurse” and transferred him to
Administrative Segregation (“ad-seg”) even though
“no rules were broken by Plaintiff and he
shouldn’t have been transferred to [ad-seg].”
(SAC at 3.)
The Due
Process Clause protects prisoners against deprivation or
restraint of “a protected liberty interest” and
“atypical and significant hardship on the inmate in
relation to the ordinary incidents of prison life.”
Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003)
(quoting Sandin v. Conner, 515 U.S. 472, 484 (1995))
(internal quotation ...