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Johnston v. Diaz

United States District Court, S.D. California

September 9, 2019

JEREMIAH M. JOHNSTON, CDCR #AZ-0346, Plaintiff,
v.
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

         I. Procedural History

         On 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.

         On 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.

         On August 15, 2019, Plaintiff filed his First Amended Complaint (“FAC”), along with a Motion for Preliminary Injunction. See Doc. Nos. 10, 12.

         II. Screening Pursuant to 28 U.S.C. § 1915(e)(2)

         A. Standard of Review

         As the 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.”).

         All 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 Cir. 2009).

         “When 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 Procedure 12(b)(6)”).

         However, 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. 1982).

         B. Discussion

         1. 42 U.S.C. § 1983

         To 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, ...


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