United States District Court, E.D. California
FINDINGS AND RECOMMENDATION RECOMMENDING DISMISSAL OF
ACTION, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM FOR
RELIEF (ECF NO. 16)
BARBARA A. McAULIFFE UNITED STATES MAGISTRATE JUDGE.
Etuate Sekona (“Plaintiff”) is a state prisoner
proceeding pro se and in forma pauperis in this civil rights
action under 42 U.S.C. § 1983. Plaintiff's first
amended complaint, filed on December 16, 2019, is currently
before the Court for screening. (ECF No. 16.)
Screening Requirement and Standard
Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity and/or against
an officer or employee of a governmental entity. 28 U.S.C.
§ 1915A(a). Plaintiff's complaint, or any portion
thereof, is subject to dismissal if it is frivolous or
malicious, if it fails to state a claim upon which relief may
be granted, or if it seeks monetary relief from a defendant
who is immune from such relief. 28 U.S.C. §§
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). Detailed factual allegations
are not required, but “[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) (citing Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
While a plaintiff's allegations are taken as true, courts
“are not required to indulge unwarranted
inferences.” Doe I v. Wal-Mart Stores, Inc.,
572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks
and citation omitted).
survive screening, Plaintiff's claims must be facially
plausible, which requires sufficient factual detail to allow
the Court to reasonably infer that each named defendant is
liable for the misconduct alleged. Iqbal, 556 U.S.
at 678 (quotation marks omitted); Moss v. U.S. Secret
Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer
possibility that a defendant acted unlawfully is not
sufficient, and mere consistency with liability falls short
of satisfying the plausibility standard. Iqbal, 556
U.S. at 678 (quotation marks omitted); Moss, 572
F.3d at 969.
is currently housed at Kern Valley State Prison
(“KVSP”), where the events in the complaint are
alleged to have occurred. Plaintiff names the following
defendants: (1) Raquel Trujillo, Correctional Counselor; (2)
L. Martinez, (3) A. Sotelo, and (4) Sillas.
was moved to KVSP in November 2016. He saw the ICC committee
on November 29, 2016, which let Plaintiff keep his single
cell status. On his annual review, on January 25, 2018, his
counselor Defendant R. Trujillo, CCII counselor, moved and
recommended to ICC committee to deny Plaintiff's single
cell status. Trujillo did this intentionally and with
knowledge that Plaintiff's safety was at risk. Plaintiff
asked Trujillo and requested of her that it was a mistake to
take him off single cell because he was assaulted once in
MCSP (Mule Creek State Prison) on June 24, 2014, causing
great harm. Plaintiff is an ADA disability from this assault,
uses a wheelchair and unable to defend himself. Plaintiff was
afraid of another attack inside by his cell mate again.
Trujillo said that he would have to wait for his next annual
review in 2019. He told her he would be assaulted again
before his next annual review. On November 17, 2018,
Plaintiff was assaulted by his cell mate causing a
concussion, head and face injuries, including bleeding to his
brain. He was hospitalized for 2 days and continues to suffer
loss of memory loss, dizziness, and headaches.
alleges that the four named defendants “intentionally
knowledge failure to acted to protected me from another risk
or dangerous to my safety and security.” (ECF No. 16,
p. 4 [text unedited].) Plaintiff alleges a conspiracy with
defendant Sillas and the chair of the ICC, Defendant
Martinez, which deprived him of his right to protection of
single cell status.
also complains about being convicted, “wrongfully
convicted to C-Status, ” which added another 30-60 days
to his sentence, and placed in the hole for 6 months. He was
also deprived of his food, hot pot, T.V., fan. This was done
in retaliation of his first amendment rights “because
of my request of single cell.” (ECF No. 16, p.6.)
Plaintiff claims that being placed in the hole and adding
time to his sentence was violation of his 5th
Amendment right against double jeopardy.
alleges that Defendant Martinez was the chairman of the ICC
on January 10, 2019. He, “with intentional knowledge,
” conspired with Defendants Trujillo and Sillas to deny
Plaintiff's safety and security from another assault.
Plaintiff asked Defendant Sillas several times for single
cell status, but Sillas retaliated against Plaintiff and
refused to give him single cell status. Plaintiff was put on
C-status, in the hole, in discrimination for his race and ADA
disability. Plaintiff was not fighting with his cellmate and
wrongly convicted. Defendant Sotelo was the hearing officer
and heard his case on November 28, 2018 and again on December
29, 2018 because of fraudulent reports. There was no
investigation or witnesses called in denial of due process.
Sotelo was racist.
did this conduct in their individuals and official
capacities. Plaintiff seeks damages.
Federal Rule of Civil Procedure 8
complaint fails to comply with Federal Rule of Civil
Procedure 8. Pursuant to 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).
Detailed factual allegations are not required, but
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678 (citation
omitted). Plaintiff must set forth “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 555).
While factual allegations are accepted as true, legal
conclusions are not. Id.; see also Twombly,
550 U.S. at 556-557; Moss, 572 F.3d at 969.
indicated above, Plaintiff's complaint is short but it is
not a plain statement of his claims. It contains multiple
incoherent phrases and conclusory statements. It is less
clear than the original complaint. As pled, Plaintiff's
complaint does not clearly and succinctly state what happened
or when it happened. Absent clear factual allegations, the
Court can neither ...