Selsor v. Weaver

          FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF CERTAIN CLAIMS AND DEFENDANTS (ECF NO. 11) FOURTEEN (14) DAY DEADLINE

          BARBARA A. MCAULIFFE, UNITED STATES MAGISTRATE JUDGE

         Findings and Recommendations Following Screening

         I. Background

         Plaintiff Jeffrey Selsor (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action on June 16, 2015.

         In Plaintiff’s original complaint, he named the following defendants: (1) Lt. B. Weaver; (2) Correctional Officer Castaneda; (3) Correctional Officer Docanto; (4) Correctional Officer T.J. Jordan; (5) Correctional Officer D.D. Nora; and (6) Correctional Officer V. Juarez. (ECF No. 1.) On June 8, 2016, the Court screened Plaintiff’s complaint pursuant to 28 U.S.C. § 1915A, and found that it failed to state a claim upon which relief may be granted against any defendant. (ECF No. 10.) Plaintiff was granted leave to amend his complaint. (Id. at 8.)

         On June 17, 2006, Plaintiff filed an amended complaint. (ECF No. 11.) In Plaintiff’s amended complaint, he only named Correctional Officers Docanto, Castaneda, and T.J. Jordan as defendants. On July 25, 2016, the Court screened the amended complaint and found that Plaintiff stated a cognizable claim for excessive force against Defendants Docanto and Jordan for allegedly attacking him on September 20, 2014, and for the failure to protect him from the attack against Defendant Castaneda, in violation of the Eighth Amendment, but did not state any other cognizable claims. Fed.R.Civ.P. 8(a); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Plaintiff was ordered to either file a second amended complaint, or notify the Court that he did not wish to file any second amended complaint and was willing to proceed on the cognizable claims. (ECF No. 12.)

         On August 3, 2016, Plaintiff notified the Court that he did not intend to file a second amended complaint and wished to proceed only with the cognizable claims against Defendants Docanto, Jordan and Castaneda. (ECF No. 13.) Accordingly, the Court issues the following findings and recommendations.

         II. Discussion

         A. Screening Requirement and Standard

         The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); 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, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (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).

         Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally construed and to have any doubt resolved in their favor. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted). 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, 129 S.Ct. at 1949 (quotation marks omitted); Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks omitted); Moss, 572 F.3d at 969.

         B. Plaintiff’s Allegations

         Plaintiff is currently incarcerated at the Salinas Valley State Prison (“SVSP”) in Soledad, California. The events in the amended complaint are alleged to have occurred at Corcoran State Prison. Plaintiff names the following defendants: (1) Correctional Officer Castaneda; (2) Correctional ...