ROBERT C. BROOMFIELD, District Judge.
On April 2, 2013, Plaintiff Ernesto Valencia, who is confined in the Arizona State Prison Complex, Winchester Unit, in Tucson, Arizona, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 and an Application to Proceed In Forma Pauperis. In a May 10, 2013 Order, the Court granted the Application to Proceed and dismissed the Complaint because Plaintiff had failed to state a claim. The Court gave Plaintiff 30 days to file an amended complaint that cured the deficiencies identified in the Order.
On June 3, 2013, Plaintiff filed his First Amended Complaint (Doc. 10). The Court will dismiss the First Amended Complaint for failure to state a claim with leave to amend.
I. Statutory Screening of Prisoner Complaints
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised claims that are legally frivolous or malicious, that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).
A pleading 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) (emphasis added). While Rule 8 does not demand detailed factual allegations, "it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.
"[A] complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "Determining whether a complaint states a plausible claim for relief [is]... a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679. Thus, although a plaintiff's specific factual allegations may be consistent with a constitutional claim, a court must assess whether there are other "more likely explanations" for a defendant's conduct. Id. at 681.
But as the United States Court of Appeals for the Ninth Circuit has instructed, courts must "continue to construe pro se filings liberally." Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A "complaint [filed by a pro se prisoner] must be held to less stringent standards than formal pleadings drafted by lawyers.'" Id. (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) ( per curiam )).
If the Court determines that a pleading could be cured by the allegation of other facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) ( en banc ). The Court should not, however, advise the litigant how to cure the defects. This type of advice "would undermine district judges' role as impartial decisionmakers." Pliler v. Ford, 542 U.S. 225, 231 (2004); see also Lopez, 203 F.3d at 1131 n.13 (declining to decide whether the court was required to inform a litigant of deficiencies). The Court will dismiss Plaintiff's First Amended Complaint for failure to state a claim, but because the First Amended Complaint may possibly be saved by amendment, the Court will dismiss the First Amended Complaint with leave to amend.
II. First Amended Complaint
Plaintiff alleges one count of racial profiling, in violation of his Fourteenth Amendment rights. He names as Defendant Phoenix Police Lieutenant Vasquez #5241. Plaintiff seeks punitive damages.
In his First Amended Complaint, Plaintiff alleges the very same facts that the Court found deficient in in Plaintiff's original Complaint. Plaintiff again alleges that he was arrested and booked on unspecified charges after Lieutenant Vasquez told Plaintiff that he fit the description of a suspect. According to Plaintiff, the suspect in question was described as a white male with long, light brown hair who was heavily tattooed and wearing a white tank top. Plaintiff asserts that he is tattooed and was wearing a tank top but that he is Hispanic, with long, dark brown hair. Plaintiff fails to see how he fits the description of a white male with long, light brown hair. As in its initial Order, the Court construes these allegations as asserting claims for discriminatory law enforcement in violation of Plaintiff's federal constitutional rights.
According to records available online, Plaintiff pleaded guilty to burglary in Maricopa County Superior Court case #CR2013-107179. Plaintiff was sentenced ...