United States District Court, E.D. California
ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN A
FRESNO DISTRICT JUDGE TO THIS ACTION FINDINGS AND
RECOMMENDATION RECOMMENDING DISMISSAL OF THIS ACTION (ECF NO.
8) FOURTEEN (14) DAY DEADLINE
BARBARA A. MCAULIFFE UNITED STATES MAGISTRATE JUDGE
Jessie Morehead is a state prisoner proceeding pro
se and in forma pauperis in this civil rights
action pursuant to 42 U.S.C. § 1983.
15, 2019, the Court found that Plaintiff's complaint
failed to state any cognizable claim for relief and granted
Plaintiff thirty days to file a first amended complaint or a
notice of voluntary dismissal. (ECF No. 8.) Plaintiff was
expressly warned that if he failed to file an amended
complaint in compliance with the Court's order, this
Court would recommend dismissal of this action, with
prejudice, for failure to state a claim and failure to obey a
court order. (Id. at 7.) The deadline for Plaintiff
to either file a first amended complaint or a notice of
voluntary dismissal expired on June 17, 2019, and he has not
complied with the Court's order or otherwise communicated
with the Court. Accordingly, the Court recommends dismissal
of this action for the reasons discussed below.
Failure to State a Claim
Screening Requirement and Standard
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. §§
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).
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.
is currently housed at Salinas Valley State Prison in
Soledad, California. The events in the complaint are alleged
to have occurred while Plaintiff was housed at the California
Correctional Institution. Plaintiff names the following
defendants: (1) Correctional Counselor II Welch; and (2)
Correctional Counselor I D. Wilson.
alleges that his First Amendment right to freedom of speech
was violated. Plaintiff claims that he was not given the
opportunity to talk about the committee reviewing him to
transfer prisons. When Plaintiff asked the defendant to put
Plaintiff up for transfer, he did not. Plaintiff asked him
verbally on June 21, 2018, for transfer with a review
process. At first, Plaintiff was ignored and inconvenienced
because he had serious things to tell him, which is why he
wanted to transfer out. Plaintiff had some sex cases in June
and October 2015 and an inmate named “Esquibal”
attacked Plaintiff on May 3, 2017 for having them. Plaintiff
was ambushed coming out of the shower. Plaintiff believed he
was set up for the attack because the California Correctional
Institution is known for disciplining inmates who are sex
offenders to get them off the yard. Plaintiff claims,
however, that it is a SNY, Level 4 180° and he had the
right to program there because SNY yard is for those with
cases like that. Plaintiff also claims that he had an enemy
next door to him in S Block, B Section, giving him more
reasons to transfer out. Plaintiff asserts that he was
injured by defendant putting him in harm's way by keeping
him at the prison where the incidents were occurring.