United States District Court, C.D. California
MEMORANDUM DECISION AND ORDER DISMISSING FIRST
AMENDED COMPLAINT WITH LEAVE TO AMEND
A. AUDERO UNITED STATES MAGISTRATE JUDGE.
10, 2019, Plaintiff Tonney Killensworth
(“Plaintiff”), an inmate at California State
Prison - Corcoran, proceeding pro se, filed a
Complaint alleging violations of his civil rights pursuant to
42 U.S.C. § 1983 (“Section 1983”). (Compl.,
ECF No. 1.) On October 24, 2019, the Court screened and
dismissed the Complaint with leave to file an amended
Complaint. (Order Dismiss Compl., ECF No. 13.) Plaintiff
filed a First Amended Complaint on November 6, 2019.
(“FAC, ” ECF No. 14 .)
Court has screened the FAC as prescribed by 28 U.S.C. §
1915A and 28 U.S.C. § 1915(e)(2)(B). For the reasons
stated below, the FAC is DISMISSED WITH LEAVE TO
AMEND. Plaintiff is ORDERED to,
within thirty days after the date of this Order, either: (1)
file a Second Amended Complaint, or (2) advise the Court that
Plaintiff does not intend to file a Second Amended Complaint.
PLAINTIFF'S ALLEGATIONS AND CLAIMS
is filed against: (1) Sergeant D. Godfrey, (2) Sergeant R.
Aguirre, (3) Lieutenant G. Marshall, and (4) Lieutenant B.
Legier (each a “Defendant” and collectively,
“Defendants”). (FAC 3-4.) Each Defendant is sued in
his or her individual capacity. (Id.)
and attached exhibits contain the following allegations and
claims. The July 13, 2018 Crime/Incident Report authored by
Defendant Legier states that on Wednesday, July 11, 2018 at
approximately 9:49 a.m., the California State Prison - Los
Angeles County Investigative Service Unit responded to a Code
1 alarm in Facility C. (Id. at 20.) Inmate Jackson
was the victim of an attempted murder with a weapon by inmate
11, 2018 at 7:51 p.m., Plaintiff was served an Administrative
Segregation Unit Placement Notice (“Ad-Seg
Notice”), authored by Defendant Marshall. (Id.
at 12.) The Ad-Seg Notice stated that “confidential
information was received indicating [Plaintiff] may have
played a role in the attempted murder of Inmate Jackson,
” and that Plaintiff “will remain in Ad-Seg
pending completion of the investigation” by ISU.
(Id.) Plaintiff contends that Defendant Marshall
placed him into administrative segregation solely on hearsay
and no other evidence, and paperwork was forged and
fabricated against Plaintiff. (Id. at 5-6.)
Plaintiff asserts that he was in his assigned cell during the
incident, “oblivious to what was going on.”
(Id. at 3.)
20, 2018, Plaintiff was served a second Ad-Seg Notice,
authored by Defendant Legier. (Id. at 16.) The
second Ad-Seg Notice stated that the investigation into
Plaintiff's involvement in the attempted murder of inmate
Jackson was completed, and “a determination to charge
[Plaintiff] with Solicitation of Murder of an Inmate was made
on July 19, 2018 based on confidential memorandum dated July
11, 2018, July 12, 2018 and July 13, 2018.”
(Id.) Plaintiff alleges that Defendant Legier
conspired with the other Defendants to fabricate documents
and deny Plaintiff an opportunity to defend himself against
“trumped up” charges. (Id. at 6.)
August 8, 2018 RVR Supplemental Investigative Report
(“Report) stated that on July 31, 2018, J. Aparicio was
assigned as the investigative employee for Plaintiff's
Rules Violation Report (“RVR”). (Id. at
9.) The Report listed the “reporting employee” as
Defendant Aguirre. (Id.)
contends that Defendant Aguirre was his senior hearing
officer. (Id. at 5.) Plaintiff alleges that he asked
to question the two inmates involved in the incident, but
Defendant Aguirre deemed all of Plaintiff's questions
irrelevant. (Id.) Plaintiff believes that if he had
been allowed to question the inmates, he would have been able
to prove that he had nothing to do with the incident.
November 1, 2018, Plaintiff filled out a grievance directed
towards Defendant Aguirre, asking Defendant Aguirre why he
was involved in Plaintiff's RVR and why he declined
Plaintiff's questions on his investigative report.
(Id. at 11.) On November 2, 2018, Defendant Aguirre
responded that he only entered the RVR on behalf of
Correctional Officer Camacho because he was on vacation, and
Defendant Aguirre did not decline Plaintiff's questions
because that can only be done by the hearing officer.
alleges that Defendant Godfrey compounded the problem by
denying Plaintiff the fair chance to use the prison grievance
system, discriminating against Plaintiff, and not giving him
the same treatment as others. (Id. at 3, 6.)
on the foregoing, Plaintiff asserts violations of the
following rights: (1) due process (id. at 5.); (2)
Fourteenth Amendment equal protection (id.); and (3)
Eighth Amendment (id. at 7.). Plaintiff seeks $200,
000 in damages and restoration of his good-time credits.
(Id. at 8.)
courts must conduct a preliminary screening of any case in
which a prisoner seeks redress from a governmental entity or
officer or employee of a governmental entity (28 U.S.C.
§ 1915A), or in which a plaintiff proceeds in forma
pauperis (28 U.S.C. § 1915(e)(2)(B)). The court
must identify cognizable claims and dismiss any complaint, or
any portion thereof, that is: (1) frivolous or malicious, (2)
fails to state a claim upon which relief may be granted, or
(3) seeks monetary relief from a defendant who is immune from
such relief. 28 U.S.C. §§ 1915A(b), 1915(e)(2)(B).
screening a complaint to determine whether it fails to state
a claim upon which relief can be granted, courts apply the
Federal Rule of Civil Procedure 12(b)(6) (“Rule
12(b)(6)”) standard. See Wilhelm v. Rotman,
680 F.3d 1113, 1121 (9th Cir. 2012) (applying the Rule
12(b)(6) standard to 28 U.S.C. § Section 1915A);
Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir.
2012) (applying the Rule 12(b)(6) standard to 28 U.S.C.
§ 1915(e)(2)(B)(ii)). “Dismissal under Rule
12(b)(6) is appropriate only where the complaint lacks a
cognizable legal theory or sufficient facts to support a
cognizable legal theory.” Hartmann v. Cal.
Dep't of Corr. & Rehab., 707 F.3d 1114, 1122
(9th Cir. 2013) (quoting Mendiondo v. Centinela Hosp.
Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008)).
12(b)(6) is read in conjunction with Federal Rule of Civil
Procedure 8(a) (“Rule 8”), “which requires
not only ‘fair notice of the nature of the claim, but
also grounds on which the claim rests.'” See Li
v. Kerry, 710 F.3d 995, 998 (9th Cir. 2013) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 n.3
(2007)). In reviewing a motion to dismiss, the court will
accept the plaintiff's factual allegations as true and
view them in the light most favorable to the plaintiff.
Park v. Thompson, 851 F.3d 910, 918 (9th Cir. 2017).
Although “detailed factual allegations” are not
required, “[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). “Conclusory allegations of law . . . are
insufficient to defeat a motion to dismiss.”
Park, 851 F.3d at 918 (alteration in original)
(quoting Lee v. City of Los Angeles, 250 F.3d 668,
679 (9th Cir. 2001)). Rather, a complaint must “contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 570). “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S.
at 663. “If there are two alternative explanations, one
advanced by defendant and the other advanced by plaintiff,
both of which are plausible, plaintiff's complaint
survives a motion to dismiss under Rule 12(b)(6).”
Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).
“Plaintiff's complaint may be dismissed only when
defendant's plausible alternative explanation is so
convincing that plaintiff's explanation is
plaintiff is pro se, particularly in civil rights
cases, courts should construe pleadings liberally and afford
the plaintiff any benefit of the doubt. Wilhelm, 680
F.3d at 1121. “[B]efore dismissing a pro se complaint
the district court must provide the litigant with notice of
the deficiencies in his complaint in order to ensure that the
litigant uses the opportunity to amend effectively.”
Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012)
(quoting Ferdik v. Bonzelet, 963 F.2d 1258, 1261
(9th Cir. 1992)). A court should grant a pro se
plaintiff leave to amend a defective complaint “unless
it is absolutely clear that the deficiencies of the complaint
could not be cured by amendment.” Akhtar, 698
F.3d at 1212 (quoting Shucker v. Rockwood, 846 F.2d
1202, 1203-04 (9th Cir. 1988) (per curiam)).