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Gallegos v. Perez

United States District Court, E.D. California

April 18, 2017

JOHNNY GALLEGOS, Plaintiff,
v.
MANUEL PEREZ, et al., Defendants.

          ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A COGNIZABLE CLAIM FOR RELIEF [ECF No. 1]

         Plaintiff Johnny Gallegos is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Pursuant to 28 U.S.C. § 636(c), Plaintiff consented to the jurisdiction of the United States Magistrate Judge on February 27, 2017. Local Rule 302.

         Currently before the Court is Plaintiff's complaint, filed February 10, 2017.

         I. SCREENING REQUIREMENT

         The Court is required to screen complaints brought by individuals who are proceeding in forma pauperis. See Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2001) (per curiam); 28 U.S.C. § 1915(e)(2). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally “frivolous or malicious, ” that “fails to state a claim on which relief may be granted, ” or that “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

         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).

         Prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, but 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 arrived at the Madera County Department of Corrections on October 8, 2016. Plaintiff did not receive an orientation packet which has information regarding the Prison Rape Elimination Act, 42 U.S.C. § 15602, and a toll-free telephone number to report misconduct.

         Plaintiff filed a grievance on December 27, 2016, regarding an ongoing pattern of verbal sexual abuse and/or misconduct by correctional officers. During the first week of January 2017, officer Dickson made a verbal comment to Plaintiff while he was bird bathing stating “man is that all you while looking at his groin area.” On or about January 12, 2017, officer Dickson made a second sexual comment stating “man that's a heavy mustache[e].” Plaintiff notified officer J. Quick of the non-posting of the Prison Rape Elimination Act and then took it upon himself to call the toll-free number which was inoperable.

         III. DISCUSSION

         A. Section 1983 Liability

         The Civil Rights Act, codified at 42 U.S.C. § 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).

[Section 1983] creates a cause of action against a person who, acting under color of state law, deprives another of rights guaranteed under the Constitution. Section 1983 does not create any substantive rights; rather it is the vehicle whereby plaintiffs can challenge actions by governmental officials. To prove a case under section 1983, the plaintiff must first demonstrate that (1) the action occurred “under color of state law” and (2) the ...

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