United States District Court, E.D. California
FINDINGS AND RECOMMENDATION RECOMMENDING DISMISSAL OF
THIS ACTION (ECF NO. 13) FOURTEEN (14) DAY DEADLINE
BARBARA A. MCAULIFFE UNITED STATES MAGISTRATE JUDGE.
Ruben Gil is a former state prisoner proceeding pro
se and in forma pauperis in this civil rights
action pursuant to 42 U.S.C. § 1983.
17, 2019, the Court found that Plaintiff's complaint
failed to comply with Federal Rules of Civil Procedure 8, 18,
and 20, and also failed state any cognizable claim for
relief. (ECF No. 13.) The Court granted Plaintiff thirty days
to file either a first amended complaint or a notice of
voluntary dismissal. (Id. at 15.) 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.) The deadline for Plaintiff to
file either a first amended complaint or a notice of
voluntary dismissal expired on June 19, 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.
alleges the events in the complaint occurred while Plaintiff
was housed at the California State Prison in Corcoran.
Plaintiff names the following defendants: (1) John Doe
Warden, (2) John Doe Deputy Warden, (3) Captain Gonzales, (4)
Lieutenant Munoz, (5) Sergeant Bueno, (6) A. Johnson,
Counselor, (7) Smith, Counselor, (8) T. Wyman, Counselor, (9)
Alvarado, Counselor. Plaintiff also names other John Does who
are correctional officers and John Does who are counselors.
All of these defendants are sued in their official and
individual capacities. Plaintiff also names Correctional
Officer Acosta who is sued in his individual capacity.
alleges that he arrived at Corcoran on November 7, 2017. He
submitted a grievance to be protected from assault, and he
still got assaulted. Plaintiff alleges that he received a
ducat to work at the “central hospital.”
Defendants were waking Plaintiff at 3:00 a.m. and not letting
him out to work in a harassing way, saying it was because he
filed grievances. After this, staff continued to harass and
threaten plaintiff for submitting C-22 forms to supervisors
and the Sergeant for misconduct of staff. Plaintiff instead
received a Rules Violation Report (RVR) for informing of
staff of misconduct. Plaintiff was fired from his job
assignment. Staff were throwing away Plaintiff's
grievances and not letting him exhaust and moved Plaintiff
from cell to cell. Defendants were also holding
Plaintiff's property for a long time.
these events, Plaintiff was assaulted by staff in front of
the education department. An officer did not intervene.
Plaintiff was being escorted by Officer S. Zarate when
Officer Martinez used force maliciously and
sadistically. Plaintiff was not taken to evaluation for
his injuries for 7 days. Plaintiff had informed the warden
and superintendents he needed to be protected but they have
failed to take action.
was issued a false Rules Violation Report at the central
hospital. Defendants refused to call any witnesses or extract
video surveillance cameras. Plaintiff was found guilty.
Plaintiff filed administrative appeal, but Lieutenant Munoz
denied witnesses and exculpatory evidence. Plaintiff's
administrative appeal then disappeared before it was sent to
the third level.
did an inappropriate and incomplete investigation of the
excessive force and denied plaintiff all rights to a fair
alleges that all Defendants used force against Plaintiff and
failed to intervene and have been harassing Plaintiff in
violation of the Eighth Amendment.
alleges that the Warden and Superintendents failed to take
disciplinary or other action against staff who have harassed
Plaintiff or who used excessive force against Plaintiff and
failed to protect him, in violation of the Eighth Amendment.
Munoz failed to call witnesses and denied the video for
exculpatory evidence in violation of Plaintiff's Due
Counselor Defendants, T. Wyman, A. Johnson, Alvarado, M.
Oliveira, Smith were not assigning Plaintiff the proper
placement for Plaintiff's rehabilitation because the
prison conditions that counselors put Plaintiff were
interfering with parole opportunities and good time statutes
which postponed parole or other release eligibility in
violation of Due Process.
V and VI
Defendants failed to take action to protect plaintiff from
assault and correct actions of their subordinates. Defendant
failed to launch an investigation of the staff conduct.
seeks as relief declaratory relief, injunctive relief, and
compensatory and punitive damages.
Federal Rule of Civil Procedure 8
to Federal Rule of Civil Procedure 8, 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). 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
(citation omitted). Plaintiff 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 (quoting
Twombly, 550 U.S. at 570, 127 S.Ct. at 1974). While
factual allegations are accepted as true, legal conclusions
are not. Id.; see also Twombly, 550 U.S. at
amended complaint is short, but it is not a plain statement
of his claims. Plaintiff's allegations are conclusory,
lacking dates, names and other necessary factual information.
Instead, Plaintiff's complaint details the filing of
numerous grievances, but fails to provide the factual
underpinnings of those grievances. Plaintiff alleges he was
attacked but does not state what happened or who was
involved. In any amended complaint, Plaintiff should briefly
and succinctly state what happened, when it happened and who
was involved. The claims in this action do not contain
sufficient factual matter to state a claim for relief that is
plausible on its face.