Brashear v. Foulk et al

Filing 11

ORDER signed by Magistrate Judge Carolyn K. Delaney on 11/12/2014 DISMISSING plaintiff's amended complaint; and the Clerk shall close this case. CASE CLOSED. (Yin, K)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

DEMETRIUS K. BRASHEAR,

12
13
14
15

No. 2:14-cv-2133 CKD P

Plaintiff,
v.

ORDER

FOULK, et al.,
Defendants.

16
17

Plaintiff is a state prisoner proceeding without counsel. Plaintiff seeks relief pursuant to

18

42 U.S.C. § 1983, and is proceeding in forma pauperis. On October 14, 2014, plaintiff’s

19

complaint was dismissed with leave to amend. Plaintiff has now filed an amended complaint.

20

Plaintiff has consented to have all matters in this action before a United States Magistrate Judge.

21

28 U.S.C. § 636(c).

22

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

23

governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

24

court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

25

“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

26

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

27

A complaint, or portion thereof, should only be dismissed for failure to state a claim upon

28

which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in
1

1

support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding, 467

2

U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt

3

Lake Log Owners Ass’n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under

4

this standard, the court must accept as true the allegations of the complaint in question, Hospital

5

Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light

6

most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor, Jenkins v.

7

McKeithen, 395 U.S. 411, 421 (1969).

8
9

In his amended complaint, plaintiff alleges that he witnessed the homicide of another
inmate on December 10, 2011 at Folsom State prison, he was assaulted by two inmates on

10

February 8, 2012, and that he was transferred to High Desert State Prison on Aril 22, 2013 “to

11

cover up the . . . incidents.” These vague allegations do not amount to an actionable claim for

12

“cruel and unusual punishment” under the Eighth Amendment or a claim under any other federal

13

law. Accordingly, plaintiff’s amended complaint will be dismissed. Because the court already

14

informed plaintiff of the vague nature of his allegations and granted him leave to provide more

15

details, granting plaintiff leave to amend a second time is futile.

16

Accordingly, IT IS HEREBY ORDERED that:

17

1. Plaintiff’s amended complaint is dismissed; and

18

2. The Clerk of the Court is directed to close this case.

19

Dated: November 12, 2014

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

20
21
22
23
24
25

1
bras2133.3

26
27
28
2