United States District Court, E.D. California
F. BRENNAN, UNITED STATES MAGISTRATE JUDGE
is a pre-trial detainee proceeding without counsel in this
action brought pursuant to 42 U.S.C. § 1983 who seeks
leave to proceed in forma pauperis. ECF No. 2.
to Proceed in Forma Pauperis
application and trust fund statement (ECF No. 4) make the
showing required by 28 U.S.C. § 1915(a)(1). Accordingly,
plaintiff's request to proceed in forma pauperis is
to § 1915(e)(2), the court must dismiss the case at any
time if it determines the allegation of poverty is untrue, or
if the action is frivolous or malicious, fails to state a
claim on which relief may be granted, or seeks monetary
relief against an immune defendant.
pro se pleadings are liberally construed, see Haines v.
Kerner, 404 U.S. 519, 520-21 (1972), a complaint, or
portion thereof, should be dismissed for failure to state a
claim if it fails to set forth “enough facts to state a
claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554,
562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41
(1957)); see also Fed. R. Civ. P. 12(b)(6).
“[A] plaintiff's obligation to provide the
‘grounds' of his ‘entitlement to relief'
requires more than labels and conclusions, and a formulaic
recitation of a cause of action's elements will not do.
Factual allegations must be enough to raise a right to relief
above the speculative level on the assumption that all of the
complaint's allegations are true.” Id.
(citations omitted). Dismissal is appropriate based either on
the lack of cognizable legal theories or the lack of pleading
sufficient facts to support cognizable legal theories.
Balistreri v. Pacifica Police Dep't, 901 F.2d
696, 699 (9th Cir. 1990).
reviewing a complaint under this standard, the court must
accept as true the allegations of the complaint in question,
Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S.
738, 740 (1976), construe the pleading in the light most
favorable to the plaintiff, and resolve all doubts in the
plaintiff's favor, Jenkins v. McKeithen, 395
U.S. 411, 421 (1969). A pro se plaintiff must satisfy the
pleading requirements of Rule 8(a) of the Federal Rules of
Civil Procedure. Rule 8(a)(2) “requires a complaint to
include a short and plain statement of the claim showing that
the pleader is entitled to relief, in order to give the
defendant fair notice of what the claim is and the grounds
upon which it rests.” Twombly, 550 U.S. at
raises two separate claims against defendant Yang. One is
cognizable and the other is not. First, plaintiff alleges
that, on an unidentified date in 2019, he was elected by the
inmate population to the Institutional Men's Advisory
Committee at the California Health Care Facility. ECF No. 1
at 3. Plaintiff alleges that, after assuming this position,
defendant Yang “enacted a campaign of continued
retaliation against him.” Id. He claims that,
at some point thereafter, he reported Yang to prison command
staff for denying inmates bottled water during a deadly
outbreak of Legionnaire's Disease. Id. After
plaintiff made these reports, Yang allegedly began to call
plaintiff a “snitch” in the presence of other
inmates. Id. Yang also began telling other inmates
that plaintiff was to blame for any and all misfortunes which
befell the unit. Id. The foregoing allegations,
taken as true, are sufficient to state a First Amendment
retaliation claim against Yang.
also claims that Yang violated his Eighth Amendment rights by
“placing [him] in harm's way.” Id.
at 4. He again references Yang's propensity to call him a
“snitch” and to tell other inmates that plaintiff
was to blame for, inter alia, delays in mail delivery and
access to the prison canteen. Id. Plaintiff does
not, however, allege that any actual attack or physical
injury befell him as a consequence of Yang's actions. Nor
does plaintiff allege any specific instances of being
threatened by other inmates due to Yang's incitements
against him. Rather, the injury he alleges appears to be that
he was exposed to an elevated risk of attack. Such
speculative and generalized fears of harm are insufficient to
sustain an Eighth Amendment claim. See Williams v.
Wood, 223 Fed.Appx. 670, 671, 2007 WL 654223, *1 (9th
Cir. 2007) (unpublished).
Leave to Amend
plaintiff may proceed only with the retaliation claim
identified by the court as cognizable. Or he may file an
amended complaint which ...