United States District Court, E.D. California
ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, FOR
FAILURE TO STATE A COGNIZABLE CLAIM FOR RELIEF [ECF No.
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.
before the Court is Plaintiff's complaint, filed February
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.
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).
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.
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.
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.
Section 1983 Liability
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
[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 ...