United States District Court, E.D. California
ORDER GRANTING REQUESTS TO DISMISS DEFENDANT KERNAN
FROM THE COMPLAINT (ECF 34 & 36) FINDINGS AND
RECOMMENDATIONS TO DISMISS CASE FOR FAILURE TO STATE A CLAIM
(ECF NO. 35) FOURTEEN DAY OBJECTION DEADLINE
MICHAEL J. SENG UNITED STATES MAGISTRATE JUDGE.
Albert Hayes, a prisoner proceeding pro se and in forma
pauperis, filed this civil rights action pursuant to 42
U.S.C. § 1983 on August 22, 2016. (ECF No. 1.) Plaintiff
has declined Magistrate Judge jurisdiction. (ECF No. 11). No
other parties have appeared.
March 23, 2017, the Court screened Plaintiff's second
amended complaint (ECF No. 24) and dismissed it for failure
to state a claim. (ECF No. 26.) The Court found that
amendment of his Due Process and Equal Protection claims or
his claims against Defendant Kernan would be futile, but
granted Plaintiff thirty days to amend his retaliation and
ADA claims against Defendants Corral and Voong only.
(Id.) Before the Court for screening is
Plaintiff's third amended complaint. (ECF No. 35.)
8, 2017, Plaintiff filed a motion to voluntarily dismiss
Defendant Kernan from the complaint. (ECF No. 34.) Plaintiff
also filed a motion seeking leave to name the
“right” defendant, in which he asks to remove
Defendant Kernan from the complaint and name only Defendants
Corral and Voong. (ECF No. 36.)
moves to voluntarily dismiss Defendant Kernan from the
complaint. (ECF No. 34.) The Court's March 23, 2017
screening order of Plaintiff's second amended complaint
advised Plaintiff that it would not entertain any further
claims against Kernan based on Plaintiff's failure, on
two separate occasions, to allege any violations committed by
him. Nonetheless, under Federal Rule of Civil Procedure
41(a)(1)(A)(i), a plaintiff may voluntarily dismiss an action
or a portion thereof without a Court order by filing a notice
of dismissal before the opposing party serves either an
answer or a motion for summary judgment. On Plaintiff's
motion, Defendant Kernan will thus be terminated from the
36 reiterates Plaintiff's desire to dismiss Kernan from
the complaint. He also raises several other concerns: he
reminds that Court that he has had to rely on other inmates
to draft his filings and asks again that the Court appoint
him counsel; he objects to the Court's denial of leave to
amend certain claims in its March 23, 2017 screening order;
and he reiterates and expounds on the allegations of his
civil rights complaint.
for the reasons already stated, Defendant Kernan will be
dismissed from the complaint. Second, Plaintiff has twice
been informed (See ECF Nos. 7 & 37) that at this juncture
in the proceedings, the Court cannot provide the relief
to the extent Plaintiff takes issue with the Magistrate
Judge's findings in prior screening orders, he may raise
them in his objections to the instant findings and
recommendations. Finally, since a civil rights complaint must
be complete in itself (Local Rule 220), in screening
Plaintiff's pleading, the Court will not consider the
current reiteration and elaboration of his allegations or
other factual allegations in extraneous filings.
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. §
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)),
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). While factual allegations are accepted
as true, legal conclusions are not. Iqbal, 556 U.S.
section 1983, Plaintiff must demonstrate that each defendant
personally participated in the deprivation of his rights.
Jones v. Williams, 297 F.3d 930, 934 (9th Cir.
2002). This requires the presentation of factual allegations
sufficient to state a plausible claim for relief.
Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret
Service, 572 F.3d 962, 969 (9th Cir. 2009). 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, Hebbe v. Pliler, 627
F.3d 338, 342 (9th Cir. 2010) (citations ...