United States District Court, E.D. California
ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND FOR
FAILURE TO STATE A CLAIM (ECF NO. 6)
Dwayne Lucas 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 October 31, 2016. (ECF No. 6.)
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.
brings this action against Karen Brown, Chief Executive
Officer at Kern Valley State Prison and J. Lewis, Deputy
Director of Policy and Risk Management Services, Inmate
Correspondence and Appeals Branch alleging that on May 16,
2016 he received notice that his personal information was
potentially breached when an unencrypted laptop was stolen
from a staff member's vehicle. Plaintiff is seeking
monetary damages of $1, 000.00.
courts are courts of limited jurisdiction and their power to
adjudicate is limited to that granted by Congress. U.S v.
Sumner, 226 F.3d 1005, 1009 (9th Cir. 2000). Pursuant to
28 U.S.C. § 1331, federal courts have original over
“all civil actions arising under the Constitution,
laws, or treaties of the United States. “A case
‘arises under' federal law either where federal law
creates the cause of action or where the vindication of a
right under state law necessarily turns on some construction
of federal law.” Republican Party of Guam v.
Gutierrez, 277 F.3d 1086, 1088 (9th Cir. 2002) (internal
punctuation omitted) (quoting Franchise Tax Bd. v.
Construction Laborers Vacation Trust, 463 U.S. 1, 8-9
(1983) (citations omitted)). “[T]he presence or absence
of federal-question jurisdiction is governed by the
‘well-pleaded complaint rule, ' which provides that
federal jurisdiction exists only when a federal question is
presented on the face of the plaintiff's properly pleaded
complaint.” Republican Party of Guam, 277 F.3d
at 1089 (citations omitted). For this action to arise under
federal law, Plaintiff must establish that “federal law
creates the cause of action” or his “asserted
right to relief depends on the resolution of a substantial
question of federal law.” K2 America Corp. v.
Roland Oil & Gas, LLC, 653 F.3d 1024, 1029 (9th Cir.
2011). Plaintiff has identified no federal right that was
violated by the potential breach of his personal information
to establish federal jurisdiction.
for each form of relief sought in federal court, Plaintiff
must establish standing. Mayfield v. United States,
599 F.3d 964, 969 (9th Cir. 2010), cert.denied, 131 S.Ct. 503
(2010). This requires Plaintiff to “show that he is
under threat of suffering ‘injury in fact' that is
concrete and particularized; the threat must be actual and
imminent, not conjectural or hypothetical; it must be fairly
traceable to challenged conduct of the defendant; and it must
be likely that a favorable judicial decision will prevent or
redress the injury.” Summers v. Earth Island
Institute, 555 U.S. 488, 493 (2009) (citation omitted);
Mayfield, 599 F.3d at 969 (citation omitted).
injury sufficient to satisfy Article III must be concrete and
particularized and actual or imminent, not conjectural or
hypothetical.” Susan B. Anthony List v.
Driehaus, 134 S.Ct. 2334, 2341 (2014) (internal
punctuation and citation omitted). “An allegation of
future injury may suffice if the threatened injury is
‘certainly impending, ' or there is a
‘substantial risk' that the harm will occur.”
Susan B. Anthony List, 134 S.Ct. at 2341(quoting
Clapper v. Amnesty Int'l USA, 133 S.Ct. 1138,
1147, 1150, n.5 (2013)). Plaintiff has not shown that there
is a substantial risk that harm will occur from the data
breach to establish standing in this action.
Section 1983 provides a cause of action for the violation of
a 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, 297 F.3d at 934. There is no
respondeat superior liability under section 1983,