United States District Court, E.D. California
FINDING AND RECOMMENDATIONS (1) FOR SERVICE OF
COGNIZABLE FIRST AMENDMENT CLAIMS AGAINST DEFENDANTS CASAS,
CARILLO, RAMIREZ, WILSON, AND FRAZIER, AND (2) TO DISMISS ALL
OTHER CLAIMS AND DEFENDANTS (ECF No. 9)
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.
October 16, 2017, this Court screened Plaintiff's
complaint and found it states cognizable Eighth Amendment
failure to protect claims against CO Casas, CO Carillo, CO
Ramirez, and CO Wilson, but no other cognizable claims. (ECF
No. 8.) Plaintiff was given leave to amend. (Id.)
Plaintiff filed a first amended complaint which is before the
Court for screening. (ECF No. 9.)
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, ” or 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. §
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)).
Plaintiffs must set forth “sufficient factual matter,
accepted as true, to state a claim to relief that is
plausible on its face.” Iqbal, 556 U.S. at
678. Facial plausibility demands more than the mere
possibility that a defendant committed misconduct and, while
factual allegations are accepted as true, legal conclusions
are not. Iqbal, 556 U.S. at 677-78.
1983 “provides a cause of action for the deprivation of
any rights, privileges, or immunities secured by the
Constitution and laws of the United States.” Wilder
v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990)
(quoting 42 U.S.C. § 1983). To state a claim under
section 1983, a plaintiff must allege two essential elements:
(1) that a right secured by the Constitution or laws of the
United States was violated and (2) that the alleged violation
was committed by a person acting under the color of state
law. See West v. Atkins, 487 U.S. 42, 48 (1988);
Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th
section 1983 the 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.
is incarcerated at California Substance Abuse Treatment
Facility. He complains of events that occurred there.
Plaintiff names as Defendants (1) G. Casas, Correction
Officer, (2) A. Carrillo, Correctional Officer, (3) A.
Ramirez, Correctional Officer, (4) E. Wilson, Correctional
Officer, (5) C. Frazier, Lieutenant, and (6) S. Sherman,
allegations can be fairly summarized as follows:
On January 15, 2016, Plaintiff, gang member dropout, asked
Defendant Casas for a cell move because he was having
problems with his cell mate, inmate Lagarde, a gang member.
Defendant Casas failed to act on Plaintiff's request
despite knowing that Plaintiff was left exposed to serious
also asked Defendant Carrillo for a move. CO Carillo denied
the request, stating that Plaintiff could not move for six
months. Plaintiff then asked Defendant Ramirez who responded
that he did not do cell moves. Finally, Plaintiff asked