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Thomas v. Valencia

United States District Court, S.D. California

June 25, 2019

LARRY JOSEPH THOMAS, CDCR #J-05107, Plaintiff,
v.
VALENCIA; GONZALEZ; TAYLOR; JONES; RICHARD J. DONOVAN WARDEN; CONEVILLO; C/O TORRES, Defendants.

          ORDER: (1) DISMISSING SECOND AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM AND AS FRIVOLOUS PURSUANT TO 28 U.S.C. § 1915(E)(2) AND § 1915A(B)AND (2) DENYING AS MOOT MOTION TO AMEND/CORRECT [ECF NO. 12]

          HON CYNTHIA BASHANT UNITED STATES DISTRICT JUDGE.

         Plaintiff Larry Joseph Thomas, a state inmate currently housed at the Richard J. Donovan Correctional Facility (“RJD”) located in San Diego, California is proceeding pro se and in forma pauperis (“IFP”) in this civil rights action pursuant to 42 U.S.C. § 1983. Following this Court's order granting him IFP status and dismissing the prior pleadings, Plaintiff has filed the Second Amended Complaint (“SAC”) and a motion to amend/correct. (ECF Nos. 10, 12.) For the reasons herein, the Court dismisses the SAC and denies as moot the motion to amend/correct.

         PROCEDURAL HISTORY

         Plaintiff initially filed his Complaint (“Compl.”) in the Eastern District of California. (See ECF No. 1.) On April 26, 2019, United States Magistrate Judge Erica P. Grosjean transferred the matter to the Southern District of California. (ECF No. 3.) Before this Court could conduct the required sua sponte screening per 28 U.S.C. § 1915(e)(2) and § 1915A, Plaintiff filed a document entitled “Amend Complaint.” (ECF No. 6.) Because it was not clear whether Plaintiff intended this to be an amended pleading or a supplement to his original Complaint, the Court conducted the sua sponte screening of this document (“Suppl. Compl.”) along with his original Complaint. (ECF No. 9.) In the May 22, 2019 Order, the Court granted Plaintiff's motion to proceed IFP and sua sponte dismissed his Complaint and Supplemental Complaint for failure to state claim upon which relief could be granted. (ECF No. 9 at 8-9.) Plaintiff was granted leave to amend to file an amended pleading in order to correct the deficiencies of pleading identified in the Court's Order. (See Id. at 9.)

         On June 5, 2019, Plaintiff filed his Second Amended Complaint (“SAC”). (ECF No. 10.) In addition, Plaintiff has filed a document entitled “Petition for Habeas Corpus Writ and Civil Rights Complaint Motion” which the Court liberally construed as a “Motion to Amend.” (ECF No. 12.) While not entirely clear, it appears that Plaintiff is seeking additional time to respond to the Court's May 22, 2019 Order. (See Id. at 1-2.) Because Plaintiff has already responded to the Court's Order by filing his SAC, the motion is moot.

         SUA SPONTE SCREENING

         As the Court previously informed Plaintiff, because he is a prisoner and is proceeding IFP, his SAC requires a pre-Answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these statutes, the Court must sua sponte dismiss a prisoner's IFP complaint, or any portion of it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that the targets of frivolous or malicious suits need not bear the expense of responding.'” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)).

         “The standard for determining whether a plaintiff has failed to state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard applied in the context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6)”). Rule 12(b)(6) requires a complaint to “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 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.” Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

         A. 42 U.S.C. § 1983

         42 U.S.C. § 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. Wyatt v. Cole, 504 U.S. 158, 161 (1992). 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 color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

         B. Plaintiff's Factual Allegations

         The Court finds that Plaintiff's SAC contains very few factual allegations and is disjointed. Nevertheless, the Court has distilled the following allegations and claims.

         First, Plaintiff claims Defendant Valencia has “yet to attempt to negotiate” with Plaintiff regarding the “filed claims in the United State District Courts in the State of California.” (SAC at 3.) Plaintiff claims that Valencia was notified that he is a “named Defendant in the June 11th 2018 incident.” (Id.) Plaintiff does not describe or provide any specific factual allegations about the “June 11th 2018 incident.” Plaintiff alleges he has only “gotten the delay and stalling treatments” by staff at RJD. (Id.)

         Second, Plaintiff claims Defendant Gonzales was “present on June 11, 2018. (Id. at 4.) It is not clear what specific events took place but it appears that Plaintiff alleges he was attacked “by her, C/O Gonzales, the acting Sergeant.” (Id.) Plaintiff alleges that the RJD “staffers and supervisor ...


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