Abreu v. Jaime
| Decision Date | 06 June 2017 |
| Docket Number | Case No.: 1:16-CV-00715-BAM (PC) |
| Parties | ARMANDO ABREU, Plaintiff, v. G. JAIME, et al., Defendants. |
| Court | U.S. District Court — Eastern District of California |
ORDER DIRECTING FILING OF LODGED SECOND AMENDED COMPLAINT
SCREENING ORDER DISMISSING SECOND AMENDED COMPLAINT FOR FAILURE TO STATE A COGNIZABLE CLAIM, WITH LEAVE TO AMEND
Plaintiff Armando Abreu ("Plaintiff") is state prisoner proceeding pro se and in forma pauperis in this action pursuant to 42 U.S.C. § 1983. Plaintiff has consented to magistrate judge jurisdiction. (ECF No. 2, 5.) Plaintiff's second amended complaint, authorized for filing by this order, is currently before the Court for screening. (ECF No. 19.)
The 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. § 1915A(b)(1), (2); 28 U.S.C. § 1915(e)(2)(B)(ii).
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). 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, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1964-65 (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).
Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally construed and to have any doubt resolved in their favor. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted). To 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, 129 S. Ct. at 1949 (quotation marks omitted); Moss v. United States Secret Service, 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, 129 S. Ct. at 1949 (quotation marks omitted); Moss, 572 F.3d at 969.
Plaintiff filed this action on May 23, 2016. After being granted IFP status, Plaintiff filed a First Amended Complaint on June 20, 2016 (ECF No. 10.) A duplicate of the document filed in ECF No. 10, was again filed by Plaintiff on July 5, 2016, but erroneously was recorded on the Court's docket as a "Second Amended" Complaint. Thereafter, following resolution of Plaintiff's interlocutory appeal for denial of appointment of counsel (ECF No. 14, 17, 18), Plaintiff lodged a "Second Amended Complaint." (ECF No. 19.) The lodged "Second Amended Complaint" is in fact entitled "second amended complaint." The Court construes this document as a motion for leave to amend.
Under Rule 15(a) of the Federal Rules of Civil Procedure, a party may amend his pleading once as a matter of course at any time before a responsive pleading is served. Otherwise, a party may amend only by leave of the court or by written consent of the adverse party. Fed. R. Civ. P. 15(a). "Rule 15(a) is very liberal and leave to amend 'shall be freely given when justice so requires.' " AmerisourceBergen Corp. v. Dialysis West, Inc., 465 F.3d 946, 951 (9th Cir. 2006) (quoting Fed. R. Civ. P. 15(a)). However, courts "need not grant leave to amend where the amendment: (1) prejudices the opposing party; (2) is sought in bad faith; (3) produces an undue delay in the litigation; or (4) is futile." AmerisourceBergen Corp., 465 F.3d at 951. The "court's discretion to deny leave to amend is particularly broad where the court has already given the plaintiff an opportunity to amend his complaint." Fidelity Financial Corp. v. Federal Home Loan Bank of San Francisco, 792 F.2d 1432, 1438 (9th Cir. 1986).
Here, since plaintiff had already amended his pleading once, leave of court was necessary under Rule 15(a)(2) to amend once more. Thus, in order to amend his complaint, plaintiff was required to file a motion demonstrating that amendment is proper and lodge a copy of his proposed amended complaint with the court. Under Local Rule 137(c), "If filing a document requires leave of court, such as an amended complaint after the time to amend as a matter of course has expired, counsel shall attach the document proposed to be filed as an exhibit to moving papers seeking such leave and lodge a proposed order as required by these Rules." E.D. Cal. Local Rule 137(c).
Here, the proposed Second Amended Complaint was lodged without a motion requesting leave of court. As stated, the Court will construe the lodging, in this instance, as a motion to amend and grants leave for the Second Amended Complaint to be filed and screened. Plaintiff is cautioned that any further amendment of his complaint, without express authorization by the court, will be stricken.
The Court now turns to screening the Second Amended Complaint. Plaintiff is currently incarcerated at Salinas Valley State Prison. The events in the complaint are alleged to have occurred while Plaintiff was incarcerated at Kern Valley State Prison and Salinas Valley State Prison. Plaintiff names the following defendants: Jerry Brown, Governor of California; Matthew Cate, Director ofCorrections; K. Hixon, correctional captain; I. Garza, correctional counselor; A. Lucas, correctional counselor; L. Repp, class staff representative; W.J Sullivan, appeal reviewer; P. Sanchez, correctional counselor; T. Lee, appeals examiner; M. Voong, Director Chief of Appeals; E. Perez, correctional counselor; P. Vera, Chief Deputy Warden; Martin Biter, Warden; A. Monarrez, classification staff representative; Kern County District Attorneys' office; John Doe district attorney; "Samantha" at the District Attorney's office; John Doe Institution Services Unit ("ISU") Lieutenant; S. Miranda, law librarian at Salinas Valley State Prison; D. Farmer, Vice Principal at Salinas State Valley Prison. Each person is sued in their individual and official capacities.
Plaintiff's Second Amended Complaint is filled with formulaic recitations of elements of various claims without much factual support. As best the Court is able to determine, Plaintiff alleges as follows. On March 1, 2016, W. J. Sullivan upheld defendant P. Sanchez's wrongful review of Plaintiff's appeal and it was a cover up by the Chief Deputy Warden. The wrongful review was upheld by T. Lee and M. Voong. Plaintiff was transferred to Salinas Valley State Prison ("SVSP") on March 11, 2016. Plaintiff alleges he had security threats at SVSP. Plaintiff alleges that all of the defendants acted with deliberate indifference because Plaintiff should be housed at Corcoran in special needs protective housing. Plaintiff alleges at Security Threat Groups I and II operate, roam, victimize, threaten, assault and murder in the sensitive needs yards. The acts violate his equal protection and in violation of Title 15 and these groups are receiving special favor by guards. Plaintiff alleges that defendants have failed to correct the security threat groups, or prison gangs, within the protective housing yards and plaintiff has not been housed properly since 1999. Plaintiff alleges he has been attacked in all the years. Plaintiff complains that his housing has led to the attacks.
Plaintiff alleges that he was retaliated against by defendants when he was transferred to Salinas Valley State Prison. He has filed many appeals against defendants while housed at Kern Valley State Prison. Plaintiff alleges, that prior to initial classification at Kern Valley State Prison, Defendant I. Garza and Defendant A. Lucas approached Plaintiff's cell and remarked in front of other inmates "why are you in here?" It was done sarcastically and in retaliation for all to hear. Plaintiff alleges that his rights were denied when E. Perez and P. Vera denied Plaintiff's appeal, in which Plaintiff was requesting transfer to High Desert State Prion. Defendant A. Monarrez elected to keep Plaintiff at Kern Valley State Prion. Defendant G. Jaime and Defendant Martin Biter ignored Plaintiff's requests. Plaintiff provided information to the District Attorney's office involving the Security Threats Groups at the Kern Valley State Prison. Plaintiff was transported as a witness on a gang case but the District Attorney's office John and Jane Does have not given Plaintiff any witness protection. The housing Lieutenant John Doe at Kern Valley State Prison was made aware of Plaintiff's housing needs by District Attorney "Samantha" but housing Lieutenant John Doe has done nothing.
Plaintiff has been denied access to the law library at Salinas Valley State Prison by S. Miranda and by D. Framer.
Plaintiff seeks monetary dames of $1,000,000.00 and punitive damages of five billion dollars, declaratory relief, injunctive relief; be placed in protective housing, single celled, among other similar remedies.
Pursuant to Federal Rule of Civil Procedure 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...
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