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Ware v. Bitter

United States District Court, E.D. California

March 22, 2017

MARTIN WARE, Plaintiff,
v.
M. BITTER, et al., Defendants.

          ORDER DISMISSING FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A COGNIZABLE CLAIM FOR RELIEF AND GRANTING PLAINTIFF ONE FINAL OPPORTUNITY TO AMEND [ECF NO. 23]

         Plaintiff Martin Ware is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff declined United States Magistrate Judge jurisdiction; therefore, this action was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

         Currently before the Court is Plaintiff's first amended complaint, filed February 16, 2017.

         I.

         SCREENING REQUIREMENT

         The Court is required to screen complaints brought by persons proceeding in pro per. 28 U.S.C. § 1915A(a). Plaintiff's complaint, or any portion thereof, is subject to dismissal if it is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against 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 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must demonstrate that each named defendant personally participated in the deprivation of his rights. Iqbal, 556 U.S. at 676-677; Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-1021 (9th Cir. 2010).

         While persons proceeding pro se are still entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, the pleading standard is now higher, Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted), and 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 678-79; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and “facts that are ‘merely consistent with' a defendant's liability” falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.

         II.

         COMPLAINT ALLEGATIONS

         Plaintiff names C. Pfeiffer, G. Jaime, J. Usher, A. Garcia, E. Perez, D. Tarnoff, K. Kaufman, M. Faulkner, M. Contreras, B. Marroquin, Lane, J. Montecino, D. Davey, V. Sica, A. Castillo, and D. Goss, as Defendants.

         On or about April 10, 2013, Plaintiff arrived at Kern Valley State Prison (KVSP), in Delano, California.

         On or about April 10, 2013, Defendants former Warden Bitter and Chief Deputy Warden Davey failed to complete an initial housing review for Plaintiff to receive appropriate placement in the general population and placed him on sensitive needs yard with another Afro-American inmate who exposed Plaintiff to racial discrimination and fear of injury because Plaintiff is a mixed origin Mexican national. Plaintiff was housed with the inmate from April 10, 2013 to October 12, 2014.

         On or about September 2, 2014, Defendant B. Marroquin failed to provide Plaintiff an appropriate inmate housing assignment review.

         On or about September 22, 2014, B. Marroquin failed to complete a secondary general safety and housing need assessment and/or notify the facility C program office supervisor of receiving a request for interview.

         On or about October 9, 2014, Defendant B. Marroquin failed to complete a third general safety housing needs assessment and/or notify the facility C program office supervisor to be approved for a transfer.

         On or about October 12, 2014, Defendant R. Lane failed to complete a general safety housing needs assessment for an emergency cell move compaction.

         On or about October 27, 2014, Defendant J. Mentecino denied Plaintiff's request to not be rehoused on “C” lower yard with inmate Stanley because he is an enemy that “most probably would lead to future force and violence.” On or about October 29, 2014, Defendant A. Castillo denied Plaintiff's request to receive counselor assistance to obtain personal legal documents in the possession of “C” program office administrators. Plaintiff advised Castillo that his personal documents were necessary to ...


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