United States District Court, E.D. California
ORDER DISMISSING SECOND AMENDED COMPLAINT WITH
PREJUDICE (DOC. 23) ORDER DIRECTING CLERK'S OFFICE TO
JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE
brought this action under 42 U.S.C. § 1983 for violation
of his rights under the Eighth Amendment for failure to
protect him from dangerous conditions. Despite twice
receiving the required pleading and legal standards and
dismissal of Plaintiff's Original and First Amended
Complaint for his failure to link any of the named defendants
to his factual allegations, Plaintiff failed to link
any individual state actors to any of his
factual allegations in the Second Amended Complaint. Further,
Plaintiff now fails to state any specific factual allegations
regarding any particular incident to show that he was housed
under dangerous conditions. Given that this is his third
effort, it appears that Plaintiff is unable to state a
cognizable claim and to link any state actors to his
allegations. Because of this, the Second Amended Complaint is
DISMISSED with prejudice.
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).
Summary of the Second Amended Complaint
complains of an incident that occurred at California
Correctional Institute (“CCI”) in Tehachapi,
California and now names the following defendants: CCI Warden
Kim Holland; FC Chariperson J. Jones; CCII T. Nipper; CCI(A)
A. Tabias; Lt. Inmate Assessment, K. Large; and CSR A.
alleges that, due to an administration error, he was living
on a level 3 yard, but was supposed to be on a level 2 yard
__ which put his life in danger. After an incident, Plaintiff
was shot, sprayed, hit, stripped, and denied “medical
care for over five hours on more than one occasion.”
fails both to link any of the individuals named as defendants
to his factual allegations and does not even state factual
allegations to show that he was attacked, let alone stated
any cognizable claims under 42 U.S.C. § 1983 in the SAC.
Since Plaintiff has twice been given opportunity to amend his
pleading to correct deficiencies, it appears that further
leave to amend would be futile and need not be extended.
Akhtar v. Mesa, 698 F.3d 1202, 1212-13 (9th Cir.
2012). This action is thus DISMISSED with prejudice.
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 ...