United States District Court, C.D. California
ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE
HONORABLE KENLY KIYA KATO United States Magistrate Judge
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.
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 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.
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.
October 24, 2019, Cervantes constructively filed the instant
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.
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. 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.
also alleges on an unspecified date,  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.
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
seeks compensatory damages. 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 ...