United States District Court, E.D. California
CERRON T. DEJOHNETTE, Plaintiff,
O. GONZALES, et al., Defendants.
ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND (ECF
No. 1) THIRTY DAY DEADLINE
MICHAEL J. SENG, UNITED STATES MAGISTRATE JUDGE.
a prisoner proceeding pro se and in forma pauperis, filed
this civil rights action pursuant to 42 U.S.C. § 1983 on
May 19, 2017. (ECF No. 1.) Plaintiff's complaint is
before the Court for screening. He has consented to
Magistrate Judge jurisdiction. (ECF No. 6.)
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. §
1983 provides a cause of action against any person who
deprives an individual of federally guaranteed rights
“under color” of state law. 42 U.S.C. §
1983. 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.
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 omitted), but
nevertheless, the mere possibility of misconduct falls short
of meeting the plausibility standard, Iqbal, 556
U.S. at 678; Moss, 572 F.3d at 969.
is currently incarcerated at North Kern State Prison in
Delano, California, where his claims arose. He names
Defendants Sergeant O. Gonzalez, Correctional Officer Perez,
and Warden Kelly Santoro.
allegations are summarized as follows:
is wheelchair bound and suffers from COPD and congestive
heart failure, and has a pacemaker.
unspecified date, Sergeant Gonzalez slapped Plaintiff with an
open palm, picked him up out of his wheelchair, twisted his
elbow, and threw him to the ground. Officer Perez helped
Gonzalez throw Plaintiff to the ground, twist Plaintiff's
arm, and handcuff him.
Santora denied Plaintiff's 602s ...