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Toscano v. Kernan

United States District Court, E.D. California

February 22, 2018

BENJAMIN K. TOSCANO, Plaintiff,
v.
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.

         Plaintiff 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.

         On 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, 17.)

         The case has been reopened and Plaintiff's complaint is again before the Court for screening. (ECF No. 1.)

         I. Williams v. King

         On 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 screening order.

         Because 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.

         II. Findings and Recommendations on First Amended Complaint

         A. 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).

         B. Pleading Standard

         Section 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.

         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 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.

         C. Plaintiff's ...


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