United States District Court, C.D. California, Western Division
ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE
L. ABRAMS UNITED STATES MAGISTRATE JUDGE
a state prisoner who was incarcerated at the California State
Prison, Lancaster, California (“CSP-LAC”) at the
time that he initiated this action, filed a pro se
civil rights action pursuant to 42 U.S.C. § 1983 on
November 21, 2018. (ECF No. 1). Plaintiff also filed a
request to proceed without prepayment of the filing fee,
which was denied by the District Court on the grounds that
plaintiff had previously had three or more cases dismissed
that constitute strikes in accordance with 28 U.S.C. §
1915(g). (ECF Nos. 2, 8). Plaintiff subsequently paid the
full filing fee. (ECF No. 25).
Complaint named numerous employees of the California
Department of Corrections and Rehabilitation
(“CDCR”) as defendants. (ECF No. 1 at 3-13).
Plaintiff, however, was able to successfully serve the
summons and Complaint on only two defendants, Correctional
Officer Escajeda and Supervisor of Health Appeals Mason. (ECF
Nos. 98-99). On October 1, 2019, after considering
plaintiff's Objections (ECF No. 106), the District Court
accepted this Court's Initial Report and Recommendation
(ECF No. 103) and dismissed all unserved named defendants
from this action for failure to prosecute. (ECF No. 107).
Subsequently, the Court granted the Motion to Stay the Case
filed by the two remaining defendants while the Court
conducted additional screening. (ECF Nos. 109-112).
claims in this action arise from an incident on July 16 to
17, 2018, when plaintiff was not taken from his cell for
medical attention for several hours while he was in severe
pain and calling for help. (ECF No. 1 at 11-16). Plaintiff
sought to have criminal charges filed against unnamed prison
employees who allegedly falsified documents and failed to
investigate plaintiff's claims. Plaintiff also sought
compensatory damages. (Id. at 20).
accordance with the mandate of the Prison Litigation Reform
Act of 1995 (“PLRA”), the Court screened the
Complaint for the purpose of determining whether the action
is frivolous or malicious; or fails to state a claim upon
which relief may be granted; or seeks monetary relief against
a defendant who is immune from such relief. See 28
U.S.C. § 1915A; 42 U.S.C. § 1997e(c)(1).
Plaintiff's status as a prisoner is determined at the
time when he filed the action. See Olivas v. Nevada ex
rel. Dep't of Corr., 856 F.3d 1281, 1284 (9th Cir.
2017) (citing Page v. Torrey, 201 F.3d 1136, 1139-40
(9th Cir. 2000), and holding that the status of
“prisoner” for purposes of 28 U.S.C. § 1915A
is determined “at the time that the plaintiff files the
careful review of the Complaint, the Court found that
plaintiff's allegations failed to state a short and plain
statement of any claim and appeared insufficient to state a
claim against the two remaining defendants. Accordingly, the
Complaint was dismissed with leave to amend. See Noll v.
Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987). Plaintiff
was ordered, if he desired to pursue this action, to file a
First Amended Complaint no later than November 8, 2019,
remedying the deficiencies discussed in the Court's Order
of October 10, 2019. Further, plaintiff was admonished that,
if he failed to timely file a First Amended Complaint or
failed to remedy the deficiencies of his pleading, the Court
would recommend that the action be dismissed without further
leave to amend and with prejudice. (See ECF No.
November 4, 2019, plaintiff filed a First Amended Complaint
(“FAC”) that names as defendants Warden Asuncion,
Correctional Officers Dunn and Escajeda, and Health Appeals
Supervisor Mason. Plaintiff names Correctional Officer
Escajeda, Supervisor Mason, and Warden Asuncion in both their
individual and official capacities. (ECF No. 114 at 3-4). The
District Court's Order of October 1, 2019, dismissed
without prejudice for failure to prosecute defendants Warden
Asuncion and Correctional Officer Dunn. (ECF No. 107). To
date, plaintiff has failed to file a proof of service of
process on either of these two defendants. In the FAC
plaintiff once again seeks to have unspecified CDCR employees
fired and have “criminal charges filed.”
Plaintiff also seeks monetary damages. (ECF No. 114 at 9).
Court once again has screened the FAC for the purpose of
determining whether the action is frivolous or malicious; or
fails to state a claim upon which relief may be granted; or
seeks monetary relief against a defendant who is immune from
such relief. The Court's screening of the pleading under
the foregoing statutes is governed by the following
standards. A complaint may be dismissed as a matter of law
for failure to state a claim for two reasons: (1) lack of a
cognizable legal theory; or (2) insufficient facts alleged
under a cognizable legal theory. See, e.g.,
Kwan v. SanMedica Int'l, 854 F.3d 1088, 1093
(9th Cir. 2017); see also Rosati v. Igbinoso, 791
F.3d 1037, 1039 (9th Cir. 2015) (“In determining
whether a complaint should be dismissed for failure to state
a claim under the [PLRA], we apply the familiar standard of
Fed.R.Civ.P. 12(b)(6).”). Further, with respect to a
plaintiff's pleading burden, the Supreme Court has held
that: “a plaintiff's obligation to provide the
‘grounds' of his ‘entitle[ment] to
relief' requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do. … Factual allegations must be enough to
raise a right to relief above the speculative level.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555,
127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal citations
omitted, alteration in original); see also Ashcroft v.
Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d
868 (2009) (To avoid dismissal for failure to state a claim,
“a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.' 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.” (internal citation
plaintiff is appearing pro se, the Court must
construe the allegations of the pleading liberally and must
afford plaintiff the benefit of any doubt. See Hebbe v.
Pliler, 627 F.3d 338, 342 (9th Cir. 2010). Further, it
is particularly important in a civil rights case filed by a
pro se litigant to attempt to ascertain
plaintiff's claims to protect his or her access to the
courts. See Blaisdell v. Frappiea, 729 F.3d 1237,
1241 (9th Cir. 2013) (the rule of liberal construction
“relieves pro se litigants from the strict
application of procedural rules”); Pouncil v.
Tilton, 704 F.3d 568, 574-75 (9th Cir. 2012) (the rule
of liberal construction “protects the rights of pro
se litigants to self-representation and meaningful
access to the courts”). In addition, the Court may not
dismiss a claim because a pro se litigant has set
forth an incomplete “legal theory supporting the
claim” alleged. See Johnson v. City of Shelby,
574 U.S. 10, 135 S.Ct. 346, 346, 190 L.Ed.2d 309 (2014).
Finally, in determining whether a complaint states a claim to
relief that is plausible on its face, factual allegations are
accepted as true and construed in the light most favorable to
plaintiff. See, e.g., Soltysik v.
Padilla, 910 F.3d 438, 444 (9th Cir. 2018). However, the
“tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal
conclusions.” Iqbal, 556 U.S. at 678; see
also Chavez v. United States, 683 F.3d 1102, 1108 (9th
Cir. 2012) (“a court discounts conclusory statements,
which are not entitled to the presumption of truth, before
determining whether a claim is plausible”). Nor is the
Court “bound to accept as true a legal conclusion
couched as a factual allegation or an unadorned,
Keates v. Koile, 883 F.3d 1228, 1243 (9th Cir. 2018)
(internal quotation marks and citations omitted).
careful review of the FAC under the foregoing standards, the
Court finds that plaintiff's allegations once again
appear insufficient to state a claim against any defendant.
Because plaintiff is an inmate proceeding pro se in
a civil rights action, the Court, although doubtful that
plaintiff will be able to correct the deficiencies in his
pleading, will give plaintiff one additional opportunity to
amend his FAC to correct the deficiencies in his claims.
Accordingly, the FAC is dismissed with leave to amend.
See Noll, 809 F.2d at 1448 (a “pro se
litigant must be given leave to amend his or her complaint
unless it is absolutely clear that the deficiencies of the
complaint cannot be cured by amendment” (internal
quotation marks omitted)).
is admonished that, if plaintiff desires to pursue this
action, he must file a Second Amended Complaint no later than
January 17, 2020, remedying the deficiencies discussed below.
Further, plaintiff is admonished that, if he fails to timely
file a Second Amended Complaint or fails to remedy the
deficiencies of this pleading as discussed herein, the Court
will recommend that the action be dismissed without further
leave to amend and with
ELEVENTH AMENDMENT IMMUNITY
FAC once again names three defendants in their official
capacities, and he appears to seek only monetary damages
against these defendants.
Court has previously admonished plaintiff, the Supreme Court
has held that an “official-capacity suit is, in all
respects other than name, to be treated as a suit against the
entity.” Kentucky v. Graham, 473 U.S. 159,
166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). Such a suit
“is not a suit against the official
personally, for the real party in interest is the
entity.” Id. at 166 (emphasis in original).
Further, in Will v. Mich. Dep't. of State
Police, 491 U.S. 58, 64-66, 71, 109 S.Ct. 2304, 105
L.Ed.2d 45 (1989), the Supreme Court held that states and
state agencies are not persons subject to civil rights ...