United States District Court, E.D. California
MACK A. WEST, Jr, Plaintiff,
D. HULBERT, et al., Defendants.
ORDER WITHDRAWING FINDINGS AND RECOMMENDATION AND
GRANTING LEAVE TO FILE THIRD AMENDED COMPLAINT (DOCS. 19,
JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE
seeks to proceed on claims of failure to protect and
deliberate indifference under the Eighth Amendment based on
circumstances surrounding an event where he attempted to
commit suicide using a “metal bind.” On July 19,
2017, the Court issued Findings and Recommendations allowing
Plaintiff to proceed on an Eighth Amendment claim against
Defendant C/O Ornales and Jane Doe #1. It dismissed the
allegations against Defendant Hulbert because they were not
cognizable. Further, though Plaintiff originally named
additional defendants, he only named these three in the First
Amended Complaint. Thus, the Court recommended all other
defendants and claims against them be deemed dismissed.
filed objections to the F&R in which he now describes the
metal bind and circumstances under which Defendant Hulbert
necessarily should have seen it and not given the package of
legal mail to Plaintiff until it was removed. Because of this
new information, Plaintiff is granted one final
opportunity to amend his allegations and is
again given the pleading and legal standards under which his
allegations in a third amended complaint will be
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,
malicious, 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);
28 U.S.C. § 1915(e)(2)(B)(i)-(iii). If an action is
dismissed on one of these three basis, a strike is imposed
per 28 U.S.C. § 1915(g). An inmate who has had three or
more prior actions or appeals dismissed as frivolous,
malicious, or for failure to state a claim upon which relief
may be granted, and has not alleged imminent danger of
serious physical injury does not qualify to proceed in
forma pauperis. See 28 U.S.C. § 1915(g);
Richey v. Dahne, 807 F.3d 1201, 1208 (9th Cir.
Federal Rule of Civil Procedure 8(a)
8(a)'s simplified pleading standard applies to all civil
actions, with limited exceptions, ” none of which
applies to section 1983 actions. Swierkiewicz v. Sorema
N. A., 534 U.S. 506, 512 (2002); Fed. R. Civ. Pro. 8(a).
A complaint must contain “a short and plain statement
of the claim showing that the pleader is entitled to relief .
. . .” Fed. R. Civ. Pro. 8(a). “Such a statement
must simply give the defendant fair notice of what the
plaintiff's claim is and the grounds upon which it
rests.” Swierkiewicz, 534 U.S. at 512.
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), quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007). Plaintiff must set forth “sufficient factual
matter, accepted as true, to 'state a claim that is
plausible on its face.”' Iqbal, 556 U.S.
at 678, quoting Twombly, 550 U.S. at 555. Factual
allegations are accepted as true, but legal conclusions are
not. Iqbal. at 678; see also Moss v. U.S. Secret
Service, 572 F.3d 962, 969 (9th Cir. 2009);
Twombly, 550 U.S. at 556-557.
“plaintiffs [now] face a higher burden of pleadings
facts . . ., ” Al-Kidd v. Ashcroft, 580 F.3d
949, 977 (9th Cir. 2009), the pleadings of pro se prisoners
are still construed liberally and are afforded the benefit of
any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th
Cir. 2010). However, "the liberal pleading standard . .
. applies only to a plaintiff's factual allegations,
" Neitze v. Williams, 490 U.S. 319, 330 n.9
(1989), "a liberal interpretation of a civil rights
complaint may not supply essential elements of the claim that
were not initially pled, " Bruns v. Nat'l Credit
Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997)
quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268
(9th Cir. 1982), 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). The “sheer
possibility that a defendant has acted unlawfully” is
not sufficient, and “facts that are ‘merely
consistent with' a defendant's liability” fall
short of satisfying the plausibility standard.
Iqbal, 556 U.S. at 678; Moss, 572 F.3d at
Eighth Amendment -- Failure to Protect
treatment a prisoner receives in prison and the conditions
under which he is confined are subject to scrutiny under the
Eighth Amendment.” Farmer v. Brennan, 511 U.S.
825, 832 (1994) (citing Helling v. McKinney, 509
U.S. 25, 31 (1993). Prison officials have a duty “to
take reasonable measures to guarantee the safety of inmates,
which has been interpreted to include a duty to protect
prisoners.” Labatad v. Corrections Corp. of
America, 714 F.3d 1155, 1160 (9th Cir. 2013) (citing
Farmer, 511 U.S. at 832-33; Hearns v.
Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005)).
establish a violation of this duty, the prisoner must
“show that the officials acted with deliberate
indifference to threat of serious harm or injury to an
inmate.” Labatad, at 1160 (citing Gibson
v. County of Washoe, 290 F.3d 1175, 1187 ...