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Hayes v. Kernan

United States District Court, E.D. California

June 27, 2017

ALBERT HAYES, Plaintiff,
v.
SCOTT KERNAN, et al., Defendants.

          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.

         Plaintiff 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.

         On 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.)

         On June 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.)

         I. Miscellaneous Filings

         Plaintiff 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 action.

         ECF No. 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.

         First, 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 Plaintiff seeks.

         Next, 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.

         II. Screening Requirement

         The 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. § 1915(e)(2)(B)(ii).

         III. Pleading Standard

         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)), 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. at 678.

         Under 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 ...


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