United States District Court, E.D. California
BENJAMIN K. TOSCANO, Plaintiff,
SCOTT KERNAN, Defendants.
ORDER DIRECTING CLERK'S OFFICE TO ASSIGN MATTER
TO A DISTRICT JUDGE FINDINGS AND RECOMMENDATION TO DISMISS
COMPLAINT WITHOUT LEAVE TO AMEND (ECF NO. 1)
FOURTEEN (14) DAY DEADLINE
MICHAEL J. SENG, UNITED STATES MAGISTRATE JUDGE.
is a state prisoner proceeding pro se and in forma pauperis
in this civil rights action brought pursuant to 42 U.S.C.
§ 1983. (ECF No. 1.) Plaintiff has consented to
magistrate judge jurisdiction. (ECF No. 6.) No other parties
have appeared in this action.
March 07, 2017, the undersigned screened Plaintiff's
complaint and dismissed it for failure to state a claim. (ECF
No. 8.) Plaintiff appealed. (ECF No. 10.) On January 25,
2018, the Ninth Circuit Court of Appeals vacated the
dismissal and remanded on the ground that the undersigned
lacked jurisdiction to issue such an order. (ECF Nos. 16,
case has been reopened and Plaintiff's complaint is again
before the Court for screening. (ECF No. 1.)
Williams v. King
November 9, 2017, the Ninth Circuit Court of Appeals ruled
that 28 U.S.C. § 636(c)(1) requires the consent of all
named plaintiffs and defendants, even those not served with
process, before jurisdiction may vest in a Magistrate Judge
to dispose of a civil claim. Williams v. King, 875
F.3d 500 (9th Cir. 2017). Accordingly, the Court held that a
magistrate judge does not have jurisdiction to dismiss a
claim with prejudice during screening even if the plaintiff
has consented to magistrate judge jurisdiction if all parties
have not consented. Williams, 875 F.3d, at 501.
Since the Defendants were not yet served and had not appeared
or consented to magistrate judge jurisdiction, the Ninth
Circuit vacated this Court's dismissal on the ground that
it had no jurisdiction to dismiss. (Id.) The Ninth
Circuit did not reach the merits of the undersigned's
the undersigned nevertheless stands by the analysis of
Plaintiff's claims set forth in the previous screening
order, the undersigned will below recommend to the District
Judge that the complaint be dismissed without leave to amend
for failure to state a claim.
Findings and Recommendations on First Amended
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.