United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION (DOC.
13) 21-DAY DEADLINE
K. Oberto . UNITED STATES MAGISTRATE JUDGE
Andre Lafon Moultrie, an inmate proceeding pro se
and in forma pauperis, alleges that the defendants
failed to protect him against assaults by other inmates in
violation of the Eighth Amendment. (Doc. 13.) In
Plaintiff's first and second amended complaints, the
Court found that Plaintiff failed to state a cognizable claim
for relief. (Docs. 10, 12.) The Court provided
Plaintiff with the pleading requirements and legal standards
for his alleged claims and granted him leave to amend.
(Id.) Despite these opportunities, Plaintiff still
fails to state a cognizable claim in his third amended
complaint (TAC). The Court finds that Plaintiff is unable to
cure the deficiencies in his pleading, see Akhtar v.
Mesa, 698 F.3d 1202, 1212-13 (9th Cir. 2012), and
recommends that this action be DISMISSED.
Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or an 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, fail to state a claim upon which relief may be
granted, or seek monetary relief from a defendant who is
immune from such relief. 28 U.S.C. § 1915A(b). The Court
should dismiss a complaint if it lacks a cognizable legal
theory or fails to allege sufficient facts to support a
cognizable legal theory. See Balistreri v. Pacifica
Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
Federal Rule of Civil Procedure 8(a)
8(a)'s simplified pleading standard applies to all civil
actions, with limited exceptions.” Swierkiewicz v.
Sorema N. A., 534 U.S. 506, 513 (2002). A complaint must
contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed.
R. Civ. Pro. 8(a)(2). “Such a statement must simply
give the defendant fair notice of what the plaintiff's
claim is and the grounds upon which it rests.”
Swierkiewicz, 534 U.S. at 512 (internal quotation
marks and citation omitted).
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 Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). Plaintiff must set forth “sufficient factual
matter, accepted as true, to ‘state a claim that is
plausible on its face.'” Iqbal, 556 U.S.
at 678 (quoting Twombly, 550 U.S. at 570). Factual
allegations are accepted as true, but legal conclusions are
not. Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 555).
Court construes pleadings of pro se prisoners
liberally and affords them the benefit of any doubt.
Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010)
(citation omitted). However, “the liberal pleading
standard … applies only to a plaintiff's factual
allegations, ” not his legal theories. Neitze v.
Williams, 490 U.S. 319, 330 n.9 (1989). Furthermore,
“a liberal interpretation of a civil rights complaint
may not supply essential elements of the claim that were not
initially pled, ” Bruns v. Nat'l Credit Union
Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (internal
quotation marks and citation omitted), and courts “are
not required to indulge unwarranted inferences.”
Doe I v. Wal-Mart Stores, Inc., 572 F.3d
677, 681 (9th Cir. 2009) (internal quotation marks and
citation omitted). The “sheer possibility that a
defendant has acted unlawfully” is not sufficient to
state a cognizable claim, and “facts that are merely
consistent with a defendant's liability” fall
short. Iqbal, 556 U.S. at 678 (internal quotation
marks and citation omitted).
1983 provides a cause of action for the violation of
constitutional or other federal rights by persons acting
under color of state law. See 42 U.S.C. § 1983.
To state a claim under Section 1983, a plaintiff must show a
causal connection or link between the actions of the
defendants and the deprivation alleged to have been suffered
by the plaintiff. See Rizzo v. Goode, 423 U.S. 362,
373-75 (1976). The Ninth Circuit has held that “[a]
person ‘subjects' another to the deprivation of a
constitutional right, within the meaning of section 1983, if
he does an affirmative act, participates in another's
affirmative acts, or omits to perform an act which he is
legally required to do that causes the deprivation of which
complaint is made.” Johnson v. Duffy, 588 F.2d
740, 743 (9th Cir. 1978) (citation omitted).
state a claim for relief, a plaintiff must link each named
defendant with some affirmative act or omission that caused a
violation of the plaintiff's federal rights. The
plaintiff must clearly identify which defendant he believes
is responsible for each violation of his rights and set forth
the supporting factual basis, as his complaint must put each
defendant on notice of his claims against him or her. See
Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004).