United States District Court, C.D. California
ORDER DISMISSING COMPLAINT WITH LEAVE TO
HONORABLE KINDLY KIYA KATO UNITED STATES MAGISTRATE JUDGE.
Raul Cervantes Valenzuela (“Plaintiff” or
“Cervantes”), proceeding pro se and
in forma pauperis, filed a Complaint pursuant to 42
U.S.C. § 1983 (“Section 1983”) and the
Americans with Disabilities Act (“ADA”). As
discussed below, the Court dismisses the Complaint with leave
IN THE COMPLAINT
August 29, 2019, Cervantes, currently an inmate at California
State Prison - Los Angeles County in Lancaster, California
(“CSP-LAC”), constructively filed a complaint
(“Complaint”) pursuant to Section 1983 and the
ADA against defendants V. Torres, D. Moisa, and Sgt.
Villalobos (“Defendants”). ECF Docket No.
(“Dkt.”) 1, Compl. Cervantes does not state whether
he sues Defendants in their individual or official capacity.
The Complaint appears to allege “false charges,
retaliation, assault and battery, [and] failure to prevent
assault and battery (ADA)” claims. Id. at 7.
to the Complaint, on April 13, 2019, Cervantes asked
defendant Torres, a correctional officer at CSP-LAC, to let
him out of his cell so he could obtain his seizure
medications. Id. at 16. Defendant Torres responded
that she was “getting tire[d] of [Cervantes] having
seizures everyday, ” and then falsely accused Cervantes
of threating to kill her. Id. Defendant Torres then
authored a Rules Violation Report charging Cervantes with
threatening to kill a public official alleging Cervantes
stated, “Torres you fucking bitch, I'm gonna kill
you.” Id. at 8-9, 16. Cervantes also alleges
defendant Torres “instigated [defendant] Moisa to
assault [and] batter” Cervantes. Id. at 5.
April 15, 2019, while walking to the dining hall, Cervantes
alleges he was approached by defendant Moisa, who asked
Cervantes “now who is the bitch” and proceeded to
twist Cervantes's right hand, handcuff him, and throw
Cervantes against the cafeteria wall, “knocking
[Cervantes's] seizure helmet off [his] head.”
Id. at 16. Defendant Moisa then threw Cervantes
against a door in the gym and into the back of a holding cage
in the gym, causing cuts and bleeding on Cervantes' chin
and forehead. Id. Cervantes claims defendant Moisa
has been “assaultive” to prisoners with mental
and physical disabilities in the past and has been reported
to the warden “twice by class action attorneys.”
Id. at 6, 18. Cervantes further alleges defendant
Villalobos witnessed the assault but “did nothing at to
prevent” it despite knowing “[Cervantes] could
have a seizure.” Id. at 16. Cervantes claims
defendant Villalobos was making “funny comments”
during the incident. Id. at 18. Cervantes was taken
to a hospital to be treated for cuts and seizures that
resulted from being hit in the head. Id. at 17, 19.
Cervantes alleges the assault “was committed [in]
retaliation for filing a civil case against an officer
Burciaga”, id. at 19, referring to a prior
case Cervantes filed in the Eastern District of California on
October 13, 2015. Id. at 15; see Cervantes v.
Williamson, et al., Case No. 2:15-cv-02138-KJM-DB,
affirmed sub nom. Cervantes v. Burciaga, 773
Fed.Appx. 978, 979 (9th Cir. 2019). On April 16, 2019,
Cervantes was placed in administrative segregation
(“ad-seg”) as a result of the Rules Violation
Report issued by defendant Torres and reviewed by defendant
Villalobos. Id. at 17.
does not state a request for specific relief. See
id. at 4.
STANDARD OF REVIEW
plaintiff is incarcerated and/or proceeding in forma
pauperis, a court must screen the complaint under 28
U.S.C. §§ 1915 and 1915A and is required to dismiss
the case at any time if it concludes the action is frivolous
or malicious, fails to state a claim on which relief may be
granted, or seeks monetary relief against a defendant who is
immune from such relief. 28 U.S.C. §§
1915(e)(2)(B), 1915A; see Barren v. Harrington, 152
F.3d 1193, 1194 (9th Cir. 1998).
Federal Rule of Civil Procedure 8 (“Rule 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)(2). In determining whether a
complaint fails to state a claim for screening purposes, a
court applies the same pleading standard as it would when
evaluating a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6). See Watison v. Carter, 668 F.3d
1108, 1112 (9th Cir. 2012).
complaint may be dismissed for failure to state a claim
“where there is no cognizable legal theory or an
absence of sufficient facts alleged to support a cognizable
legal theory.” Zamani v. Carnes, 491 F.3d 990,
996 (9th Cir. 2007). In considering whether a complaint
states a claim, a court must accept as true all of the
material factual allegations in it. Hamilton v.
Brown, 630 F.3d 889, 892-93 (9th Cir. 2011). However,
the court need not accept as true “allegations that are
merely conclusory, unwarranted deductions of fact, or
unreasonable inferences.” In re Gilead Scis. Sec.
Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). Although a
complaint need not include detailed factual allegations, it
“must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its
face.” Cook v. Brewer, 637 F.3d 1002, 1004
(9th Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S.
662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). A claim is
facially plausible when it “allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. The complaint
“must contain sufficient allegations of underlying
facts to give fair notice and to enable the opposing party to
defend itself effectively.” Starr v. Baca, 652
F.3d 1202, 1216 (9th Cir. 2011).
document filed pro se is ‘to be liberally
construed,' and a ‘pro se complaint,
however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by
lawyers.'” Woods v. Carey, 525 F.3d 886,
889-90 (9th Cir. 2008). However, liberal construction should
only be afforded to “a plaintiff's factual
allegations, ” Neitzke v. Williams, 490 U.S.
319, 330 n.9, 109 S.Ct. 1827, 104 L.Ed.2d 339 (1989), and a
court need not accept as true “unreasonable inferences
or assume the truth of legal conclusions cast in the form of
factual allegations, ” Ileto v. Glock Inc.,
349 F.3d 1191, 1200 (9th Cir. 2003).
court finds the complaint should be dismissed for failure to
state a claim, the court has discretion to dismiss with or
without leave to amend. Lopez v. Smith, 203 F.3d
1122, 1126-30 (9th Cir. 2000). Leave to amend should be
granted if it appears possible the defects in the complaint
could be corrected, especially if the plaintiff is pro
se. Id. at 1130-31; see also Cato v. United
States, 70 F.3d 1103, 1106 (9th Cir. 1995). However, if,
after careful consideration, it is clear a complaint cannot
be cured by amendment, the court may dismiss without leave to
amend. Cato, 70 F.3d at 1107-11; see also Moss
v. U.S. Secret Serv., 572 F.3d 962, 972 (9th Cir. 2009).
THE COMPLAINT FAILS TO SPECIFY THE CAPACITY IN WHICH EACH
DEFENDANT IS SUED ...