Valenzuela v. Torres

          ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND

          HONORABLE KENLY KIYA KATO United States Magistrate Judge

         I. INTRODUCTION

         Plaintiff Raul Cervantes Valenzuela (“Plaintiff” or “Cervantes”), proceeding pro se and in forma pauperis, filed a First Amended Complaint (“FAC”) pursuant to 42 U.S.C. § 1983 (“Section 1983”) and the Americans with Disabilities Act (“ADA”). As discussed below, the Court dismisses the FAC with leave to amend.

         II. BACKGROUND

         On August 29, 2019, Cervantes, currently an inmate at California State Prison - Los Angeles County in Lancaster, California (“CSP-LAC”), constructively filed^[1] a complaint (“Complaint”) pursuant to Section 1983 and the ADA against defendants V. Torres, D. Moisa, and Sgt. Villalobos alleging “false charges, retaliation, assault and battery, [and] failure to prevent assault and battery (ADA)” claims arising out of an incident on April 13, 2019. ECF Docket No. (“Dkt.”) 1, Compl.

         On October 18, 2019, the Court dismissed the Complaint with leave to amend, finding it (a) failed to specify the capacity in which each defendant was sued and the requested relief; (b) failed to state a Fourteenth Amendment due process claim against defendant Torres for “false charges”; (c) failed to state a First Amendment retaliation claim against defendants Moisa and Villalobos; and (d) failed to state a claim under the ADA. Dkt. 17.

         On October 24, 2019, Cervantes constructively filed the instant FAC.^[2] Dkt. 18, FAC. Cervantes sues V. Torres, D. Moisa, and Sgt. Villalobos (“Defendants”) in their individual capacity. The allegations in the FAC appear to allege First and Eighth Amendment claims arising out of incidents on October 21, 2019 and an unspecified date.^[3]

         According to the FAC, on October 21, 2019, after Cervantes refused to “withdraw [a] statement” regarding a prison account dispute, Cervantes was pepper sprayed by officer Magdala.^[4] FAC at 3. Cervantes alleges defendant Torres then hit Cervantes on his ribs and head. Id. Cervantes alleges officer Gray destroyed “all personal property (ADA)” and officer Makarade was throwing Cervantes's pictures and other personal property around as defendant Villalobos observed. Id. at 7-8. Cervantes alleges he was placed in administrative segregation and charged with assault on a peace officer. Id. Cervantes alleges defendant Villalobos “owes Plaintiff the right to be protected from assault from any employee” and to protect him from being harmed. Id. at 5.

         The FAC also alleges on an unspecified date, ^[5] defendant Moisa assaulted Cervantes when he ordered Cervantes to tuck in his shirt. Id. at 4. Cervantes alleges that instead of writing Cervantes an RVR “for disobeying an order … [defendant Moisa had] something else in mind evil intent first Amendment … he stood in front of me and say now who is the bitch I … said I don't know what you talking about and when he started assaulting me I did not resist.” Id. at 4.

         Cervantes appears to claim the assaults and destroying of his property were in retaliation for Cervantes having filed a prior lawsuit, stating: “Sgt. Villalobos, D. Moisa. V. Torres knew about my lawsuit because Attorney General Xavier Becerra is the attorney for the State of California who attorney are for defendants of (CDCR) on lawsuits.” Id. at 5.

         Cervantes seeks compensatory damages.^[6] Id. at 4.

         III. STANDARD OF REVIEW

         Where a 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).

         Under 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).

         A 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 ...