United States District Court, E.D. California
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se. Plaintiff seeks relief
pursuant to 42 U.S.C. § 1983 and has requested leave to
proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
This proceeding was referred to this court by Local Rule 302
pursuant to 28 U.S.C. § 636(b)(1).
has submitted a declaration that makes the showing required
by 28 U.S.C. § 1915(a). Accordingly, the request to
proceed in forma pauperis will be granted.
is required to pay the statutory filing fee of $350.00 for
this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). By
separate order, the court will direct the appropriate agency
to collect twenty percent of the preceding month's income
credited to plaintiff's prison trust account and forward
it to the Clerk of the Court each time the amount in
plaintiff's account exceeds $10.00, until the filing fee
is paid in full. 28 U.S.C. § 1915(b)(2).
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
or malicious, ” 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. §
court has conducted the required screening and finds that
plaintiff may proceed on a claim for excessive force arising
under the Fourth Amendment against defendants Arabia,
Williams, Lee and Warren as detailed on pages 13 and 14 of
plaintiff's complaint. With respect to the other
defendants identified in plaintiff's complaint and the
other claims, plaintiff's complaint fails to state a
claim upon which relief can be granted.
point, plaintiff has two options: 1) he may proceed on his
claims arising under the Fourth Amendment against defendants
Arabia, Williams, Lee and Warren; or 2) attempt to cure the
deficiencies in his complaint.
deciding whether to file an amended complaint, plaintiff
should consider the following:
order to avoid dismissal for failure to state a claim a
complaint must contain more than “naked assertions,
” “labels and conclusions” or “a
formulaic recitation of the elements of a cause of
action.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555-557 (2007). In other words, “[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).
Furthermore, a claim upon which the court can grant relief
has facial plausibility. Twombly, 550 U.S. at 570.
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678.
There can be no liability under 42 U.S.C. § 1983 unless
there is some affirmative link or connection between a
defendant's actions and the claimed deprivation.
Rizzo v. Goode, 423 U.S. 362 (1976). Furthermore,
vague and conclusory allegations of official participation in
civil rights violations are not sufficient. Ivey v. Board
of Regents, 673 F.2d 266, 268 (9th Cir. 1982).
Section 1983 does not recognize respondeat superior
liability. Monell v. Dep't. of Soc. Servs., 436
U.S. 658, 691 (1978). Accordingly, a supervisor may not be
held liable merely because a subordinate violated the
plaintiff's constitutional rights. Id.
Monell, the Supreme Court found that municipalities
may be sued for damages under 42 U.S.C.§ 1983. However,
municipal liability cannot be “premised on the mere
fact that the municipality employed the offending
official.” City of Oklahoma City v. Tuttle,
471 U.S. 808, 810 (1985). Instead, municipal liability can
only be imposed for “injuries inflicted pursuant to a
‘policy or custom.'” Id. quoting
Monell, 436 U.S. at 695.
Plaintiff is informed he cannot proceed on a §1983 claim
for damages if the claim implies the invalidity of his
conviction or sentence. Heck v. Humphrey, 512 U.S.
477, 487 (1994).
Plaintiff asserts violations of California law, but plaintiff
fails to adequately plead compliance with the California Tort
Claims Act. See Cal. Gov't Code § 910 et
seq.; Mangold v. Cal. Pub. Utils. Comm'n, 67
F.3d. 1470, 1477 (9th Cir. 1995). Facts presented in
pleadings must demonstrate “either that a claim was
timely presented or that compliance with the claims statute
is excused” in order to ...