Brewer v. Bravo

Filing 6

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND, signed by Magistrate Judge Barbara A. McAuliffe on 10/8/2013. Amended Complaint Due Within Thirty Days. (Attachments: # 1 1983 Amended Complaint Form)(Marrujo, C)

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EASTERN DISTRICT OF CALIFORNIA

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CURTIS BREWER,

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Plaintiff,
v.
R. BRAVO,

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Defendant.

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1:12-cv-01025-AWI-BAM (PC)
ORDER DISMISSING COMPLAINT WITH
LEAVE TO AMEND (ECF No. 1)
THIRTY-DAY DEADLINE

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I.

Screening Requirement and Standard

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Plaintiff Curtis Brewer (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff’s complaint, filed on

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June 25, 2012, is currently before the Court for screening.

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The Court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. §

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1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous or

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malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary

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relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); 28

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U.S.C. § 1915(e)(2)(B)(ii).

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A complaint must contain “a short and plain statement of the claim showing that the

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pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not

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required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere
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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937,

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1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65

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(2007)). While a plaintiff’s allegations are taken as true, courts “are not required to indulge

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unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009)

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(internal quotation marks and citation omitted).

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To survive screening, Plaintiff’s claims must be facially plausible, which requires

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sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable

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for the misconduct alleged. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks omitted);

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Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility

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that a defendant acted unlawfully is not sufficient, and mere consistency with liability falls short

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of satisfying the plausibility standard. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks

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omitted); Moss, 572 F.3d at 969.

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II.

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Plaintiff is currently housed at the Lancaster State Prison. The events complained about

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Plaintiff’s Allegations

allegedly occurred while Plaintiff was housed at Kern Valley State Prison.
Plaintiff alleges as follows: “On July 18, 2010, c/o R. Bravo allowed I/M’s Smith

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#F24249 and Board #F16687 out of their cell to assault me, while on lockdown performing my

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then Men’s Advisory Counsel [sic] Representative (“MAC-REP”) building functions, while a

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substantial risk of serious harm existed, with this knowledge thereof and I was injured in the

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attack.” (ECF No. 1, p. 3.)

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Plaintiff seeks compensatory and punitive damages.

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III.

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Due to its abbreviated and conclusory nature, Plaintiff’s complaint will be dismissed with

Deficiencies of the Complaint

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leave to amend. To assist Plaintiff in amending his complaint, Plaintiff is provided with the

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applicable pleading and legal standards.

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A. Federal Rule of Civil Procedure 8
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).
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As noted above, detailed factual allegations are not required, but “[t]hreadbare recitals of the

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elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal,

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556 U.S. at 678 (citation omitted). Plaintiff must set forth “sufficient factual matter, accepted as

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true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting

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Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are

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not. Id; see also Twombly, 550 U.S. at 556–557; Moss, 572 F.3d at 969.

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Plaintiff’s complaint is conclusory and lacks sufficient factual allegations to state a

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cognizable claim. Although Rule 8 demands a short and plain statement, Plaintiff’s complaint

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must include enough facts to support a claim.

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B. Failure to Protect
Plaintiff appears to allege a claim against Correctional Officer Bravo for failure to protect

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him from an assault by other inmates. Prison officials are required “to take reasonable steps to

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protect inmates from physical abuse.” Hoptowit v. Ray, 682 F.2d 1237, 1250 (9th Cir. 1982)

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(abrogated on other grounds by Sandin v. O’Connor, 515 U.S. 472, 115 S. Ct. 2293 (1995)). To

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state a claim under the Eighth Amendment, the plaintiff must show that the defendant acted with

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deliberate indifference. Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010) (citations

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omitted). Deliberate indifference requires a showing that “prison officials were aware of a

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“substantial risk of serious harm” to an inmate’s health or safety and that there was no

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“reasonable justification for the deprivation, in spite of that risk.” Id. (quoting Farmer v.

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Brennan, 511 U.S. 825, 837, 844, 114 S. Ct. 1970, 1979, 1982 (1994)). Additionally, an officer

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can only be held liable for failing to intercede if he had a realistic opportunity to intercede and

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failed to do so. Cunningham v. Gates, 229 F.3d 1271, 1289-90 (9th Cir. 2000).

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Here, Plaintiff’s complaint against Defendant Bravo is based on conclusory statements.

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Plaintiff has not alleged sufficient facts to demonstrate that Defendant Bravo was aware that

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Plaintiff was at a substantial risk of serious harm from an assault by other inmates or that he had

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realistic opportunity to intercede. Plaintiff therefore fails to state a cognizable claim for failure

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to protect. As discussed below, Plaintiff will be given leave to cure this deficiency.

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IV.

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Plaintiff’s complaint fails to state a cognizable claim upon which relief may be granted

Conclusion and Order

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under section 1983. However, the Court will provide Plaintiff with the opportunity to file an

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amended complaint. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).

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Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but must state what

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each named defendant did that led to the deprivation of Plaintiff’s constitutional or other federal

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rights. Iqbal, 556 U.S. at 676. Plaintiff also must set forth “sufficient factual matter . . . to ‘state

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a claim that is plausible on its face.’” Id. at 678. (quoting Twombly, 550 U.S. at 555). Plaintiff

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should note that although he has been given the opportunity to amend, it is not for the purpose of

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adding new, unrelated claims.
Finally, Plaintiff is advised that pursuant to Local Rule 220, the amended complaint must

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be “complete in itself without reference to the prior or superseded pleading.” Local Rule 220.

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Once an amended complaint is filed, the original complaint no longer serves any function in the

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case. The amended complaint should be clearly and boldly titled “First Amended Complaint,”

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refer to the appropriate case number, and be an original signed under penalty of perjury.

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

The Clerk’s Office shall send Plaintiff a complaint form;

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2.

Plaintiff’s complaint is dismissed for failure to state a claim with leave to file a

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first amended complaint within thirty (30) days from the date of service of this order; and
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If Plaintiff fails to comply with this order, the Court will dismiss this action

for failure to obey a court order and for failure to state a claim.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

October 8, 2013

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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