United States District Court, S.D. California
JEREMIAH M. JOHNSTON, CDCR #AZ-0346, Plaintiff,
RALPH DIAZ; SCOTT KERNAN; DANIEL PARAMO; PAT CAVELLO; LT. RODRIGUEZ; D. HOUGH; S. CHAT; D. JAIME; M. VOONG; JANE/JOHN DOES 1 THROUGH 6; RJD EMPLOYEES, Defendants.
ORDER: 1) DENYING MOTION FOR PRELIMINARY INJUNCTION;
2) DISMISSING DEFENDANTS FOR FAILING TO STATE A CLAIM; AND 3)
DIRECTING U.S. MARSHAL TO EFFECT SERVICE OF FIRST AMENDED
COMPLAINT [DOC. NOS. 10, 12]
Anthony J. Battaglia, Judge
March 29, 2019, Jeremiah M. Johnston
(“Plaintiff”), a state inmate currently
incarcerated at the Richard J. Donovan Correctional Facility
(“RJD”) located in San Diego, California and
proceeding pro se, filed a civil rights complaint pursuant to
42 U.S.C. § 1983. See Compl., Doc. No. 1. / / /
Plaintiff did not pay the filing fee required by 28 U.S.C.
§ 1914(a) to commence a civil action when he filed his
Complaint; instead, he filed a Motion to Proceed In Forma
Pauperis (“IFP”) pursuant to 28 U.S.C. §
1915(a), along with a Motion for Preliminary Injunction.
See Doc. Nos. 2, 5.
April 30, 2019, the Court granted Plaintiff's Motion to
Proceed IFP, denied his Motion for Preliminary Injunction,
and dismissed the entire action for failing to state a claim
pursuant to 28 U.S.C. § 1915(e)(2) & § 1915A.
See Doc. No. 6. Plaintiff was granted leave to file
an amended pleading to correct the deficiencies the Court
identified in its Order. Id.
August 15, 2019, Plaintiff filed his First Amended Complaint
(“FAC”), along with a Motion for Preliminary
Injunction. See Doc. Nos. 10, 12.
Screening Pursuant to 28 U.S.C. § 1915(e)(2)
Standard of Review
Court previously informed Plaintiff, a complaint filed by any
person proceeding in forma pauperis is subject to sua sponte
dismissal, however, if it is “frivolous, malicious,
fail[s] to state a claim upon which relief may be granted, or
seek[s] monetary relief from a defendant immune from such
relief.” 28 U.S.C. § 1915(e)(2)(B); Calhoun v.
Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam)
(holding that “the provisions of 28 U.S.C. §
1915(e)(2)(B) are not limited to prisoners.”);
Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000)
(en banc) (“[S]ection 1915(e) not only permits, but
requires a district court to dismiss an in forma pauperis
complaint that fails to state a claim.”).
complaints 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)). “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” falls short of
meeting this plausibility standard. Id.; see
also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th
there are well-pleaded factual allegations, a court should
assume their veracity, and then determine whether they
plausibly give rise to an entitlement to relief.”
Iqbal, 556 U.S. at 679; see also Resnick v.
Hayes, 213 F.3d 443, 447 (9th Cir. 2000) (“[W]hen
determining whether a complaint states a claim, a court must
accept as true all allegations of material fact and must
construe those facts in the light most favorable to the
plaintiff.”); Barren v. Harrington, 152 F.3d
1193, 1194 (9th Cir. 1998) (noting that § 1915(e)(2)
“parallels the language of Federal Rule of Civil
while the court “ha[s] an obligation where the
petitioner is pro se, particularly in civil rights cases, to
construe the pleadings liberally and to afford the petitioner
the benefit of any doubt, ” Hebbe v. Pliler,
627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz
v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it
may not “supply essential elements of claims that were
not initially pled.” Ivey v. Board of Regents of
the University of Alaska, 673 F.2d 266, 268 (9th Cir.
42 U.S.C. § 1983
state a claim under 42 U.S.C. § 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 the color of state law. West v. Atkins,