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Gallardo v. Sherman

United States District Court, E.D. California

May 1, 2017

ANGEL LUIS GALLARDO, Plaintiff,
v.
STU SHERMAN, et al., Defendants.

          ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND FOR FAILURE TO STATE A CLAIM(ECF NO. 1)

         Plaintiff Angel Luis Gallardo, a state prisoner, is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Currently before the Court is Plaintiff's complaint, filed November 25, 2016. On March 14, 2017, this action was transferred from the Northern District of California and assigned to the undersigned.

         I.

         SCREENING REQUIREMENT

         The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or 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 on which relief may be granted, ” or that “seek[] 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)). Moreover, Plaintiff must demonstrate that each defendant personally participated in the deprivation of Plaintiff's rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).

         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. Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (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 678-79; Moss v. U.S. Secret Service, 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

         On November 13, 2015, while housed at the California Substance Abuse Treatment Facility (“CSATF”) in Corcoran, California, Plaintiff and his cellmate were sprayed with three cans of pepper spray by M. Garcia, Correctional Officers J. Reyes, and D. Martin due to an in cell incident. (Compl. 3.) The officers then took Plaintiff and his cellmate to the showers to be rinsed off. (Compl. 3.) After Plaintiff and his cellmate had been placed in a stand up cell for an hour, Sergeant M. Garcia told Correctional Officer Martin to gather Plaintiff's cellmate's belongings so he could be moved to another cell. (Compl. 3.) Sergeant Garcia told Correctional Officer Reyes to place Plaintiff back in his original cell and give him new bedding and cleaner to clean up the pepper spray. (Compl. 3.)

         Plaintiff told Sergeant Garcia and Correctional Officer Reyes that he could not go back because he has asthma. (Compl. 3.) Nurse Bracamonte came by and Plaintiff had him explain his medical condition to Sergeant Garcia. (Compl. 3, 5.) Sergeant Garcia and Correctional Officer Reyes still placed Plaintiff back in his cell to clean the cell up. (Compl. 5.)

         After about fifteen minutes, Plaintiff was having trouble breathing and was unable to find his rescue inhaler. (Compl. 5.) Plaintiff told Correctional Officer Reyes to call Nurse Bracamonte. (Compl. 5.) Nurse Bracamonte came and gave Plaintiff a new inhaler. (Compl. 5.) Plaintiff asked Nurse Bracamonte to ask Sergeant Garcia to let him get some fresh air, but Nurse Bracamonte said he could not. (Compl. 5.)

         Plaintiff brings this action against Warden Sherman, Sergeant Garcia, Correctional Officers Reyes and Martin, and Nurse Bracamonte [1] seeking compensation and for the defendants to be reprimanded. (Compl. 2.)

         For the reasons discussed herein, Plaintiff has failed to state a cognizable claim. Plaintiff shall be granted the opportunity to file an amended complaint to correct the deficiencies identified in this order.

         III. ...


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