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Davis v. Perez

United States District Court, E.D. California

November 6, 2019

DEVIN S. DAVIS, Plaintiff,
v.
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]

         Plaintiff Devin S. Davis is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.

         Currently before the Court is Plaintiff's first amended complaint, filed November 4, 2019.

         I.

         SCREENING REQUIREMENT

         The 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).

         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). 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 Cir. 2002).

         Prisoners 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.

         II.

         COMPLAINT ALLEGATIONS

         The 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.

         During 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 fuck.”

         During 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 damages.

         III. DISCUSSION

         A. ...


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