Moon v. D'Agostini

Filing 6

ORDER signed by Magistrate Judge Carolyn K. Delaney on 4/18/2017 GRANTING plaintiff's 2 request to proceed IFP; the complaint is DISMISSED with prejudice for failure to state a claim; plaintiff's 5 motion for an extension of time is DENIED as moot; and the Clerk shall close this case. CASE CLOSED. (Yin, K)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 STEVEN R. MOON, 12 13 14 No. 2:17-cv-0577 CKD P Plaintiff, v. ORDER JOHN D’AGOSTINI, 15 Defendant. 16 17 18 I. Introduction Plaintiff is a county jail inmate proceeding pro se and seeking relief pursuant to 42 U.S.C. 19 § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 20 636(b)(1). Plaintiff has consented to Magistrate Judge jurisdiction to conduct all proceedings in 21 this action. (ECF No. 4.) 22 Plaintiff requests leave to proceed in forma pauperis. Since plaintiff has submitted a 23 declaration that makes the showing required by 28 U.S.C. § 1915(a), his request will be granted. 24 II. Screening Standard 25 The court is required to screen complaints brought by prisoners seeking relief against a 26 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 27 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 28 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 1 1 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 2 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 3 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 4 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 5 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 6 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 7 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 8 Cir. 1989); Franklin, 745 F.2d at 1227. 9 In order to avoid dismissal for failure to state a claim a complaint must contain more than 10 “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause 11 of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, 12 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 13 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim 14 upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A 15 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 16 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 17 at 678. When considering whether a complaint states a claim upon which relief can be granted, 18 the court must accept the allegations as true, Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007), 19 and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 20 U.S. 232, 236 (1974). 21 III. Discussion 22 Plaintiff alleges that in October 2015, he was employed as a kitchen worker in the 23 Placerville County Jail. The floor was greasy and the other workers were engaging in horseplay, 24 causing unsafe conditions. Plaintiff was struck in the back by full boxes of oranges, causing 25 serious injury to his back, neck, and shoulders. Plaintiff seeks damages to cover his medical 26 expenses. (ECF No. 1.) However, at most, plaintiff has stated a claim for negligence, which is 27 not actionable under § 1983. Thus the complaint will be dismissed. 28 2 1 If the court finds that a complaint should be dismissed for failure to state a claim, the court 2 has discretion to dismiss with or without leave to amend. Lopez v. Smith, 203 F.3d 1122, 1126- 3 30 (9th Cir. 2000) (en banc). Leave to amend should be granted if it appears possible that the 4 defects in the complaint could be corrected, especially if a plaintiff is pro se. Id. at 1130-31; see 5 also Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (“A pro se litigant must be given 6 leave to amend his or her complaint, and some notice of its deficiencies, unless it is absolutely 7 clear that the deficiencies of the complaint could not be cured by amendment.”) (citing Noll v. 8 Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)). However, if, after careful consideration, it is clear 9 that a complaint cannot be cured by amendment, the court may dismiss without leave to amend. 10 Cato, 70 F.3d at 1005-06. Here, as it appears amendment would be futile, the complaint will be 11 dismissed without leave to amend. 12 In accordance with the above, IT IS HEREBY ORDERED that: 13 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is granted; 14 2. The complaint is dismissed with prejudice for failure to state a claim; 15 3. Plaintiff’s motion for extension of time (ECF No. 5) is denied as moot; and 16 4. The Clerk of Court is directed to close this case. 17 Dated: April 18, 2017 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 2/ 23 24 25 26 27 28 3

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