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Moore v. Romero

United States District Court, E.D. California

May 2, 2018

DEMEKA EUGENE MOORE, Plaintiff,
v.
R. ROMERO, Defendant.

          SCREENING ORDER GRANTING PLAINTIFF LEAVE TO FILE AMENDED COMPLAINT, (ECF No. 1) THIRTY-DAY DEADLINE

          Barbara A. McAuliffe UNITED STATES MAGISTRATE JUDGE

         Plaintiff Demeka Eugene Moore (“Plaintiff”) is a former state prisoner proceeding pro se and in forma pauperis in this civil rights action under 42 U.S.C. § 1983. Plaintiff initiated this action while incarcerated. Plaintiff's complaint, filed on September 28, 2017, is currently before the Court for screening. (ECF No. 1.)

         I. Screening Requirement and Standard

         The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). Plaintiff's complaint, or any portion thereof, is subject to dismissal if it is frivolous or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b); 1915(e)(2)(B)(ii).

         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)). While a plaintiff's allegations are taken as true, 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).

         To survive screening, Plaintiff's claims must be facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969.

         II. Plaintiff's Allegations

         Plaintiff is former state prisoner. The events in the complaint are alleged to have occurred while Plaintiff was at Owens Valley awaiting transport to the Sierra Conservation Center. Plaintiff names Correctional Officer R. Romero as the sole defendant.

         Plaintiff alleges as follows:

On June 13, 2017 at CC #26 Owens Valley awaiting transportation to S.C.C., I Eugene Moore was sexually assaulted by C/O R. Romero who violated policy and procedures & whose actions and miss-conduct further more were degrading and abusive. C/O R. Romero on June 13, 2017, made me take off all my clothing open my mouth wiggle my tongue spread my anus apart with my fingers squat and cough repeatedly while stating that I wasnt doing it correctly. C/O R. Romero also inform me to pull back the forskin of my penis I did so by showing and stating to C/O R. Romero that I did not have forskin on my penis trying my best to comply. C/O R. Romero inform me to lift up my nut sack then to repeat a sweaping motion which I complied. C/O R. Romero befor or after inform me to bend over as far as I can then to place my fingers in my anus and spread it apart. I did this repeatedly while C/O R. Romero used his flash light to look inside my anus. I inform C/O R. Romero that I didnt feel comfortible doing this C/O R. Romero stated for me not to disobey a direct order. C/O R. Romero then placed his hand on my back for me to bend over stating that I should hurry and get this over with which I complied. I have metal rods threw my hip and legs & one leg shorter than the other, foot drag, screws in my ankle and wear permanent medical devices. I was in pain trying to keep my balance.

(ECF No. 1 at p. 3) (unedited text).

         Plaintiff asserts that Defendant Romero's unwelcome sexual misconduct was humiliating and physically and mentally painful. Plaintiff claims violations of the Fourth and Eighth Amendments to the United States Constitution. As relief, Plaintiff seeks compensatory damages in the amount of $3 million dollars.

         III. Discussion

         A. ...


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