King v. Gallardo et al

Filing 7

ORDER Dismissing Action, with Prejudice, for Failure to State a Claim Under Section 1983; ORDER that Dismissal is Subject to Three Strikes Provision Under 28 USC 1915(G), signed by Magistrate Judge Sheila K. Oberto on 3/27/13. CASE CLOSED. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LEONARD KING,

CASE NO. 1:12-cv-02006-SKO PC

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Plaintiff,

ORDER DISMISSING ACTION, WITH
PREJUDICE, FOR FAILURE TO STATE A
CLAIM UNDER SECTION 1983

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v.
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B. GALLARDO, et al.,

(Doc. 1)

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Defendants.

ORDER THAT DISMISSAL IS SUBJECT TO
THREE STRIKES PROVISION UNDER 28
U.S.C. § 1915(G)

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/

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I.

Screening Requirement and Standard

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Plaintiff Leonard King, a state prisoner proceeding pro se and in forma pauperis, filed this

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civil rights action pursuant to 42 U.S.C. § 1983 on December 10, 2012. The Court is required to

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screen complaints brought by prisoners seeking relief against a governmental entity or an officer or

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employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or

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portion thereof if the prisoner has raised claims that are legally “frivolous or malicious,” that fail to

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state a claim upon which relief may be granted, or that seek monetary relief from a defendant who

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is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). “Notwithstanding any filing fee, or any

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portion thereof, that may have been paid, the court shall dismiss the case at any time if the court

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determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted.”

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28 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 pleader

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is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but
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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,

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do not suffice,” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937 (2009) (citing Bell Atlantic

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Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)), and courts “are not required to

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indulge 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). While factual allegations are accepted as true, legal

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conclusions are not. Iqbal, 556 U.S. at 678.

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Pro se litigants are entitled to have their pleadings liberally construed and to have any doubt

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resolved in their favor, Wilhelm v. Rotman, 680 F.3d 1113, 1121-23 (9th Cir. 2012); Hebbe v. Pliler,

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627 F.3d 338, 342 (9th Cir. 2010), but Plaintiff’s claims must be facially plausible to survive

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screening, which requires sufficient factual detail to allow the Court to reasonably infer that each

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named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at 678 (quotation marks

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omitted); Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that

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

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satisfying the plausibility standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572

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F.3d at 969.

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II.

Discussion

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A.

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Plaintiff, who is currently incarcerated at San Quentin State Prison, brings this action against

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Wasco State Prison Officer B. Gallardo, Captain D. Van Leer, and Warden John N. Katavich for

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violating his federal and state rights to be treated fairly. Plaintiff alleges that on May 13, 2012,

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Defendant Gallardo taunted and goaded him to fight her, displaying a “negative and violent attitude.”

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(Comp., ¶IV.) Plaintiff alleges that Defendant Van Leer failed to properly investigate, process

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Plaintiff’s inmate appeal, take action, and/or reprimand Defendant Gallardo; and Defendant Katavich

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is responsible for all staff misconduct and for ensuring a fair appeals process.

Allegations

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B.

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Mere taunting or goading Plaintiff verbally does not rise to the level of a constitutional

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violation. Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987); Gaut v. Sunn, 810 F.2d 923,

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925 (9th Cir. 1987).

Plaintiff’s Claims

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Furthermore, the existence of an inmate appeals process does not create any substantive

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rights and Plaintiff’s disagreement with how his inmate appeal was handled does not give rise to a

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claim for relief. Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003); Mann v. Adams, 855 F.2d

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639, 640 (9th Cir. 1988).

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Finally, notwithstanding the fact that Plaintiff’s constitutional rights were not violated by

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either Defendant Gallardo or Defendant Van Leer, a necessary underpinning for a claim based on

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supervisory liability, Defendant Katavich may not be held liable for the actions of his subordinates

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under a mere theory of respondeat superior. Starr v. Baca, 652 F.3d 1202, 1205-08 (9th Cir. 2011),

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cert. denied, 132 S.Ct. 2101 (2012).

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III.

Conclusion and Order

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Plaintiff’s claims against Defendants Gallardo, Van Leer, and Katavich for violating his

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constitutional rights fail as a matter of law. Because the deficiencies are not capable of being cured

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through amendment, this action shall be dismissed, with prejudice. Akhtar v. Mesa, 698 F.3d 1202,

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1212-13 (9th Cir. 2012). The Court expresses no opinion whether Plaintiff may have redress under

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California law. In the absence of any viable federal claims, the Court will not exercise supplemental

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jurisdiction over any state law claims, should any exist. 28 U.S.C. § 1367(a); Herman Family

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Revocable Trust v. Teddy Bear, 254 F.3d 802, 805 (9th Cir. 2001).

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Accordingly, it is HEREBY ORDERED that:

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1.

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This action is dismissed, with prejudice, for failure to state a claim under section
1983; and

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2.

This dismissal is subject to the “three-strikes” provision set forth in 28 U.S.C. §
1915(g). Silva v. Di Vittorio, 658 F.3d 1090, 1098-99 (9th Cir. 2011).

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IT IS SO ORDERED.

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Dated:
ie14hj

March 27, 2013

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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