United States District Court, E.D. California
DEVIN S. DAVIS, Plaintiff,
R. PEREZ, Defendant.
ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN A
DISTRICT JUDGE TO THIS ACTION FINDINGS AND RECOMMENDATION
RECOMMENDING DISMISSAL OF ACTION FOR FAILURE TO STATE A
COGNIZABLE CLAIM FOR RELIEF [ECF NO. 12]
Devin S. Davis is appearing pro se and in forma
pauperis in this civil rights action pursuant to 42
U.S.C. § 1983.
before the Court is Plaintiff's first amended complaint,
filed November 4, 2019.
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 on
which relief may be granted, ” or that “seek
monetary relief against a defendant who is immune from such
relief.” 28 U.S.C. § 1915(e)(2)(B).
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)).
Moreover, Plaintiff must demonstrate that each defendant
personally participated in the deprivation of Plaintiff's
rights. Jones v. Williams, 297 F.3d 930, 934 (9th
proceeding pro se in civil rights actions are entitled to
have their pleadings liberally construed and to have any
doubt resolved in their favor. Wilhelm v. Rotman,
680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). To
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 678-79; Moss v. U.S. Secret Service, 572 F.3d
962, 969 (9th Cir. 2009). The “sheer possibility that a
defendant has acted unlawfully” is not sufficient, and
“facts that are ‘merely consistent with' a
defendant's liability” falls short of satisfying
the plausibility standard. Iqbal, 556 U.S. at 678;
Moss, 572 F.3d at 969.
Court accepts Plaintiff's allegations in the complaint as
true only for the purpose of the sua sponte
screening requirement under 28 U.S.C. § 1915.
early February 2019, when Plaintiff returned from the
medication line, correctional officer R. Perez stopped
Plaintiff because he was late due to talking to a fellow
Muslim inmate who was going home. The previous day,
correctional officer Munoz had already the issue and excused
Plaintiff's tardiness. Plaintiff told Perez “it
won't happen again I take responsibility.” The next
day, officer Perez rehashed the conversation while officer
Munoz was present. Plaintiff responded by stating, “you
have a blessed day.” Plaintiff accidentally walked into
the wall and officer Perez stated, “you're a stupid
mother.” Plaintiff told her, I will file a 602
[grievance]” and she replied, “I don't give a
the month of May 2019, Plaintiff's cell was searched, by
officer Perez and when Plaintiff asked for a cell search slip
she stated, “No I can do whatever the fuck I want to, I
don't have to give you shit.” On June 14, 2019,
Plaintiff was advised by officer Munoz that she had packed
his electronics herself. While Plaintiff was signing the
property slip, officer Perez said “ah ha you thought
you were taken that, ” to which Plaintiff said
“leave me alone.” When officer Munoz told
Plaintiff to sign the property slip, he stated, “why
you won't just leave me alone?” Munoz started to
snicker and laugh. Plaintiff went back to his cell to put his
property on the cart, and while leaving the building officer
Perez said “bye get the fuck out of my building with
your ugly Black terrorist ass.” Plaintiff seeks $60,
000 in compensatory damages, and $30, 000 in punitive