United States District Court, E.D. California
ORDER DISMISSING PLAINTIFF'S SECOND AMENDED
COMPLAINT WITHOUT LEAVE TO AMEND (DOC. 36, 39) ORDER
DIRECTING CLERK OF THE COURT TO CLOSE THE CASE
K. OBERTO UNITED STATES MAGISTRATE JUDGE
Christopher Lipsey, Jr., a state prisoner proceeding pro
se and in forma pauperis, filed this civil
rights action pursuant to 42 U.S.C. § 1983 on May 6,
2015. On December 8, 2015, Plaintiff's Original Complaint
was screened and dismissed with leave to amend for failure to
state a claim under § 1983. (Doc. 17.) In January of
2016, Plaintiff filed the First Amended Complaint, (Doc. 18),
an exhibit to the First Amended Complaint (Doc. 19) and a
supplement to the First Amended Complaint (Doc. 20). All of
these documents were reviewed as part of the screening of the
First Amended Complaint, which was dismissed with leave to
amend on September 6, 2016. (Doc. 29.) After requesting and
receiving multiple extensions of time, Plaintiff filed the
Second Amended Complaint (“SAC”) which is before
the Court for screening. (Doc. 36.) For the reasons discussed
below, the SAC is DISMISSED without leave to amend and this
case will be closed.
Screening Requirement and Standard
Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or an officer or
employee of a governmental entity. 28 U.S.C. § 1915A(a).
The Court must dismiss a complaint or portion thereof if the
prisoner has raised claims that are legally “frivolous
or malicious, ” that fail to state a claim upon which
relief may be granted, or that seek monetary relief from a
defendant who is immune from such relief. 28 U.S.C. §
1915A(b)(1), (2). “Notwithstanding any filing fee, or
any portion thereof, that may have been paid, the court shall
dismiss the case at any time if the court determines that . .
. the action or appeal . . . fails to state a claim upon
which relief may be granted.” 28 U.S.C. §
Rule of Civil Procedure 8(a)
8(a)'s simplified pleading standard applies to all civil
actions, with limited exceptions, " none of which
applies to section 1983 actions. Swierkiewicz v. Sorema
N. A., 534 U.S. 506, 512 (2002); Fed. R. Civ. Pro. 8(a).
A complaint must contain "a short and plain statement of
the claim showing that the pleader is entitled to relief . .
. ." Fed. R. Civ. Pro. 8(a). "Such a statement must
simply give the defendant fair notice of what the
plaintiff's claim is and the grounds upon which it
rests." Swierkiewicz, 534 U.S. at 512.
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), quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007). Plaintiff must set forth “sufficient factual
matter, accepted as true, to 'state a claim that is
plausible on its face.'” Iqbal, 556 U.S.
at 678, quoting Twombly, 550 U.S. at 555. Factual
allegations are accepted as true, but legal conclusions are
not. Iqbal, at 678; see also Moss v. U.S. Secret
Service, 572 F.3d 962, 969 (9th Cir. 2009);
Twombly, 550 U.S. at 556-557.
“plaintiffs [now] face a higher burden of pleadings
facts . . ., ” Al-Kidd v. Ashcroft, 580 F.3d
949, 977 (9th Cir. 2009), the pleadings of pro se prisoners
are still construed liberally and are afforded the benefit of
any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th
Cir. 2010). However, "the liberal pleading standard . .
. applies only to a plaintiff's factual allegations,
" Neitze v. Williams, 490 U.S. 319,
330 n.9 (1989), "a liberal interpretation of a civil
rights complaint may not supply essential elements of the
claim that were not initially pled, " Bruns v.
Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th
Cir. 1997) quoting Ivey v. Bd. of Regents, 673 F.2d
266, 268 (9th Cir. 1982), and 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). The “sheer
possibility that a defendant has acted unlawfully” is
not sufficient, and “facts that are ‘merely
consistent with' a defendant's liability” fall
short of satisfying the plausibility standard.
Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949;
Moss, 572 F.3d at 969.
1983 provides a cause of action for the violation of
Plaintiff's constitutional or other federal rights by
persons acting under color of state law. Nurre v.
Whitehead, 580 F.3d 1087, 1092 (9th Cir 2009); Long
v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir.
2006); Jones v. Williams, 297 F.3d 930, 934 (9th
Cir. 2002). “Section 1983 is not itself a source of
substantive rights, but merely provides a method for
vindicating federal rights elsewhere conferred.”
Crowley v. Nevada ex rel. Nevada Sec'y of State,
678 F.3d 730, 734 (9th Cir. 2012) (citing Graham v.
Connor, 490 U.S. 386, 393-94, 109 S.Ct. 1865 (1989))
(internal quotation marks omitted). To state a claim,
Plaintiff must allege facts demonstrating the existence of a
link, or causal connection, between each defendant's
actions or omissions and a violation of his federal rights.
Lemire v. California Dep't of Corr. and Rehab.,
726 F.3d 1062, 1074-75 (9th Cir. 2013); Starr v.
Baca, 652 F.3d 1202, 1205-08 (9th Cir. 2011).
allegations do not demonstrate that each defendant personally
participated in the deprivation of his rights. Jones v.
Williams, 297 F.3d 930, 934 (9th Cir. 2002). As
discussed below, Plaintiff fails to present factual
allegations sufficient to state plausible claims for relief.
Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret
Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere
possibility of misconduct falls short of meeting this
plausibility standard. Iqbal, 556 U.S. at 678;
Moss, 572 F.3d at 969.
Plaintiff's third pleading attempt. Plaintiff is
currently incarcerated at California Men's Colony, East
(“CMC-E”) in San Luis Obispo, California. He
names Librarians Moser and Doe #1; Property Officers Magana
and Urban; Appeals Coordinators Pacillas, Goree, Cribbs,
Jasso, and Heck; Officers Hernandez, Doe #2, and Doe #3;
Sergeant Case; and Warden Davey as Defendants in the SAC.
Plaintiff complains of incidents that occurred while he was
housed at California State Prison-Corcoran
(“CSP-Cor”). Plaintiff asserts four claims for
which he seeks monetary and injunctive relief.
delineates four claims in the SAC. As discussed below, Claims
#1-3 fail to state a claim for which relief may be granted
under 28 U.S.C. § 1915A(b)(1). Since Plaintiff has had
multiple opportunities to amend these claims and has twice
previously been given the applicable legal standards
(see Docs. 17, 29), further amendment would be
futile and need not be granted. Akhtar v. Mesa, 698
F.3d 1202, 1212-13 (9th Cir. 2012). Though Claim #4 may state
a cognizable claim, it is based on events that occurred
nearly a year after Plaintiff initiated this action which are
unrelated to the claims upon which he initiated this action.
This exceeds the leave to amend granted to Plaintiff and
seeks improper joinder of a new claim and
defendants.Thus, the SAC is properly dismissed without
leave to amend, resulting in closure of this case.
Claim #1, Plaintiff alleges that, in 2011, he repeatedly
tried to obtain documents from Librarian Moser and Doe #1,
but they were “deliberately indifferent to
Plaintiff's access to courts” and that Doe #1 was
“deliberately indifferent by not sending him caselaw
(sic) when he requested them or scheduling Plaintiff law
library access in 2011.” (Doc. 36, p. 6.) Plaintiff
alleges that “not having the dates he received actual
access to the library is preventing Plaintiff from
substantiating his tolling claim in Federal court, and is the
actual injury.” (Id., p. 7.)