United States District Court, E.D. California
ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND FOR
FAILURE TO STATE A CLAIM(ECF NO. 1)
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.
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).
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
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.
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.)
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.)
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.)
brings this action against Warden Sherman, Sergeant Garcia,
Correctional Officers Reyes and Martin, and Nurse Bracamonte
seeking compensation and for the defendants to be
reprimanded. (Compl. 2.)
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.