United States District Court, C.D. California, Western Division
MEMORANDUM AND ORDER DISMISSING COMPLAINT WITH LEAVE
D. EARLY UNITED STATES MAGISTRATE JUDGE
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
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
SUMMARY OF PLAINTIFF'S ALLEGATIONS
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.
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).
STANDARD OF REVIEW
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)
“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).
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.
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