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Diaz v. Reaume

United States District Court, C.D. California, Western Division

March 30, 2018

FELIPE POLANCO DIAZ, Plaintiff,
v.
LT. W. REAUME, et al., Defendants.

          MEMORANDUM AND ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND

          JOHN D. EARLY UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         On M arch 9, 2018, Plaintiff Filipe Polanco Diaz (“Plaintiff”), currently incarcerated at the California State Prison - Sacramento, proceeding pro se and in forma pauperis, filed a Complaint pursuant to 42 U.S.C. § 1983 (“Section 1983” or § 1983”) arising out of an alleged assault that took place at California State Prison - Los Angeles County, located in Lancaster, California (“the Prison”). Dkt. 1 (“Complaint”). The Complaint names the following persons as defendants, each named in his or her individual and official capacities, and each alleged to have been working at Prison at the time of the incident: Lt. W. Reaume, Sgt. B. Gonzales, “C.O.” (presumably referring to “Correctional Officer, ” hereinafter “CO”) Ademoye, CO E. England, CO J. Flores Gomez, CO R. Gomez, CO D. Henry, CO C. Spencer, CO E. Torres, and “primary person” CO D. Moisa. Complaint, 1, 3-5 (CM/ECF pagination).

         Following a screening in accordance with 28 U.S.C. §§ 1915(e)(2) and 1915A, except with respect to the claim for against CO D. Moisa in his individual capacity only, as set forth further below, the Court finds the Complaint is subject to dismissal.

         II. SUMMARY OF PLAINTIFF'S ALLEGATIONS

         The Complaint alleges claims based upon the Eighth Amendment's prohibition against cruel and unusual punishment and “failure to protect.” Complaint at 6. Plaintiff alleges that CO D. Moisa “maliciously and sadistically attempted against my human life by kicking me on the head harmfully and brutally causing unnecessary and want infliction of pain and life - [threatening] internal injuries upon my brain. Id.

         With respect to all other defendants, defendant alleges: “Each of the sued defendants fail[ed] to do their duties as officers. The Lieutenant know of the brutality and fail[ed] to correct[], Sgt Gonzales also know of C.O. Moisa[‘s] brutal history. And the other C.O.s part take [sic] with MOISA statement that I was the attacker. (This is a lie).” Complaint at 6. Plaintiff alleges that witness told CO Moisa to “stop” yet CO Moisa continued brutally kicking Plaintiff's head until Plaintiff passed out in a pool of blood. Id. Plaintiff alleges he had difficulty exhausting his administrative remedies (id. at 7) and seeks $500, 000 in damages, of which he would donate half to the family of the victim of his crime (id. at 8).

         III. STANDARD OF REVIEW

         A complaint may be dismissed as a matter of law for failure to state a claim for two reasons: (1) lack of a cognizable legal theory; or (2) insufficient facts under a cognizable legal theory. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). In determining whether the complaint states a claim, its factual allegations must be taken as true and construed in the light most favorable to the plaintiff. See Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). Courts construe the allegations of pro se complaints liberally. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); see also Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (as amended). However, “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) (quotation omitted).

         A “plaintiff's obligation to provide the ‘grounds' of his ‘entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. . . . Factual allegations must be enough to raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Thus, a plaintiff must allege a minimum factual and legal basis for each claim that is sufficient to give each defendant fair notice of what the plaintiff's claims are and the grounds upon which they rest. See, e.g., Brazil v. United States Dep't of the Navy, 66 F.3d 193, 199 (9th Cir. 1995); McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991).

         Failure to comply with Rule 8 of the Federal Rules of Civil Procedure (“Rule 8”) constitutes an independent basis to dismiss a complaint even if the claims are not wholly without merit. See McHenry v. Renne, 84 F.3d 1172, 1179 (9th Cir. 1996). While Rule 8 does not require detailed factual allegations, a complaint must allege enough facts to provide both “fair notice” of the particular claim being asserted and “the grounds upon which [that claim] rests.” Twombly, 550 U.S. at 555 & n.3 (citation and quotation marks omitted); see also Iqbal, 556 U.S. at 678 (Rule 8 “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation”) (citing Twombly). “Rule 8(e), requiring each averment of a pleading to be ‘simple, concise, and direct, ' applies to good claims as well as bad, and is a basis for dismissal independent of Rule 12(b)(6).” McHenry, 84 F.3d at 1179-80.

         If the Court finds that a complaint should be dismissed for failure to state a claim, the Court has discretion to dismiss with or without leave to amend. Lopez v. Smith, 203 F.3d 1122, 1126-30 (9th Cir. 2000) (en banc). Leave to amend should be granted if it appears possible that the defects in the complaint could be corrected, especially if a plaintiff is pro se. Id. at 1130-31; see also Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (noting that “[a] pro se litigant must be given leave to amend his or her complaint, and some notice of its deficiencies, unless it is absolutely clear that the deficiencies of the complaint could not be cured by amendment”). However, if, after careful consideration, it is clear that a complaint cannot be cured by amendment, the Court may dismiss without leave to amend. Cato, 70 F.3d at 1105-06; see, e.g., Chaset v. Fleer/Skybox Int'l, 300 F.3d 1083, 1088 (9th Cir. 2002) (holding that “there is no need to prolong the litigation by permitting further amendment” where the “basic flaw” in the pleading cannot be cured by amendment).

         IV. DISCUSSION

         A. Applicable ...


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