Darnell Black v. A. Tiggs-Brown

Filing 11

ORDER RE REQUEST TO PROCEED WITHOUT PREPAYMENT OF FILING FEES by Judge R. Gary Klausner 10 . Request is DENIED. The case is dismissed immediately. REFER TO THE COURT'S ORDER FOR DETAILS. Case Terminated. Made JS-6. (pso)

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~~~ ~ UI~II'I`ED STATES DISTRICT`COURT CrNTRAI,llIS'CRICT OP GAL[FORNIA (;,1ti1~ NU1~1f4RR C'V 17-0~~893-RGI~ (RA(:)) Darnell E~lac:k, tir. YLAINI'II~P(S1 v. ORDER RF R}:Qt1EST TO PROC.GF.D N~ITHOUT PRI:PAYMINT OF FII..IN(~ FE1:S A. ~`i~gs-Brown IT IS ORI~EKED [h<it t1~e Request to I'rocetd VVilllout I~'repayment of Filing Fees is hereby GRAI~'I'ED. IT IS FURTHER OKDGRED tk~at, in accor~jauce with 28 [I.S.C. 0 1 ~)l ~, t}~e prisoner-plaintiff owes the Court the total tiling fee <~f X350.00. An initial partial tiling fee c7f $ mast be paid within t~hirt}'(30) days of the date this order is filed. Failure to r~init the initial }partial filing fee may r~sulti in dismissal of the case. ~l'her•cafter, monthly payments shall bi. for~~~arded to itie Cow-t in accordance titiit}~ 28 U.S.C;. ~ 191. ~(~)(Z). Date United titatcs ;~'[agislralc Judge L IS KECOM1biENDEll that the Request to Proceed Wi?bout Prepayment of Filing Fees be llENIEU f~,>r the 'T follo~vin~; reason(s): u u u Inadequate sl~o~vin~; of indi~;ency. Failw~~ t~a ~uihc~r~ze disb~~irsernent5 from prison trust accotu~t to pay the tiling tees. Failure t~o prcrvicle certified cope of trust fund statcn~eilt for the Last sik (6) months. u District (;Dort lacks jurisdiction. u Other ~ u u ]'~rivolot~s, rnali~:ious, o~~ (iils Yo state a claim upvi~ ~vhicYi relief maj. be granted. Seeks m~~net~rr5° relief tiron~ a defend~int iinJnur~e from such relief. Lcavc to amend would be futile. This deni~~~l a~ay constitute a strike under the " 'Three Strilces'~ provision governii~~; tl~e filing of } prisoner suits. See O'Ne~rl i~. Prrce, ~3 t Fad 11 46, 11 ~3 (9th Cir. 2008). Comments: See attached statement oFdecrsion. September 21, 2017 Date L`nitcd States i~tagistrate (ud~;e IT IS ORDEREll that tl~~e Request try Proceed Wit}~oirt Prep~iyment of Film}; Fees is: u GRANTEll. I'T 1S FURTHF,R ORDERED that, in accordance with 28 U.S.(:. 6 1915, the ~~~isi>ner-plaintifl o~~es the Court the t~~tal filing lee of 5350.00. ~1n itaitial partial filing fer of y must be paid within thirty (30) days of the date tl~i,~ ordr~r is filed. Failure I.o remit [he initial partial filing fee i~iati~ result in dismissal of the case. Thereafter, monthly p~iyiuenls 51~all be tor~~~aa~dcd to the Co~irt in accorclancc ~vitl~ 28 U.S.C, ~i 191 ~(b)(2)• u DE.NIED. Plaintiff S} IAI:,C, PF1~' 'I'1JI' FILING I FES IN [~tll.,l., within 3U days ur this case ~.vill be dismissed. ~ DENI:EU, ~~nd this ease is herel~}' DISh1IS~~Ei) imi~~ediately. u ll~NIED,~vitll leave !'o ~unenci within 30 days. Plaintiff i7iay re-submit the TFP applicatiiir~ ancI (:o~nplaii~t to this Court, if submitted ~~~it17 the C;crCificd'1'rust Account Slat~~~neni anzl I)i~bursemc~nt Authnrizat~ion. PlaiuCift shall utilize they carne ~ase~ number. it }~>lainli(f f~~ils to subnul the required doc~nnents within 30 daps, this case shall he DIS~~1[SSPD. SEP 2 7 2017 t><<ce CA' "izP (OSi]f;) LJnitec~ St(~~tes Dis~rict Judge (lRl)F.R RP. REQUES"I'1'O PROCE'.GU lNITHOUl'PRY,['AYMFN7'OF FII.WG PEES 2:17-cv-04893-RGK-RAO Darnell Black, Sr. v. A. Tiggs-Brown On June 26, 2017, Plaintiff Darnell Black, Sr. ("Plaintiff ), a California prisoner proceeding pro se, constructively filed a civil rights complaint pursuant to 42 U.S.C. § 1983, alleging violations of the Eighth Amendment; the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"); and the Rehabilitation Act of 1983, 29 U.S.C. § 701 et seq. ("RA"). ( Dkt. No. 1.) Plaintiff also filed a request to proceed informa pauperis. (Dkt. No. 2.) On July 12, 2017, the Court denied Plaintiff's request and dismissed his complaint with leave to amend. (Dkt. No. 4.) The Court's order explained that the complaint failed to state a claim under the Eighth Amendment because Plaintiff failed to allege that Defendant was aware of, but consciously disregarded, an excessive risk to Plaintiffs health and safety. Plaintiff failed to state a claim under the ADA and RA because the complaint included no support or basis for discrimination. Plaintiff also failed to state a claim for retaliation because the alleged conduct preceded Plaintiff's pursuit of administrative remedies. The Court granted Plaintiff leave to amend within 30 days. On August 16, 2017, the Court received from Plaintiff a request for additional time to file an amended complaint, stating that he was obtaining medical treatment and would not return to his prison until September 1, 2017.(Dkt. No. 6.) The Court granted his request. (Dkt. No. 7.) On.September 5, 2017, the Court received Plaintiff's amended complaint.(Dkt. No. 10.) The amended complaint's allegations are not materially different from those of the original complaint, although the amended complaint omits the claims of discrimination and retaliation. In Plaintiff's Eighth Amendment claim, he alleges "deliberate indifference" and that Defendant " consciously refuse[d]" his requests. However, merely reciting the legal standards applied to this type of claim, without more, is insufficient. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The amended complaint thus fails to state a claim for the reasons previously explained with respect to the original complaint, and it must be dismissed. Because Plaintiff has failed even to attempt to amend his claims in a meaningful way, further leave to amend is not warranted. See Brown v. Fitzpatrick, 667 F. App'x 267, 2016 WL 3450394, at *1 (9th Cir. June 23, 2016)(mem.)("The district court did not abuse its discretion in dismissing [the pro se plaintiff's] amended complaint without leave to amend after providing [the plaintiff) with one opportunity to amend."); Fosselman v. Hidalgo, 599 F. App'x 310, 310 (9th Cir. 2015)("The district court did not abuse its discretion in denying [the plaintiff) further leave to amend after his f amended complaint failed to cure the deficiencies."); Zucco Partners, LLC v. Digimarc irst Corp., 552 F.3d 981, 1007 (9th Cir. 2009)("[W]here the plaintiff has previously been granted leave to amend and has subsequently failed to add the requisite particularity to its claims, `[t]he district court's discretion to deny leave to amend is particularly broad."' (alteration in original) ( quoting In re Read-Rite Corp., 335 F.3d 843, 845 (9th Cir. 2003), abrogated on other grounds as recognized by South Ferry LP, No. 2 v. Killinger, 542 F.3d 776, 783-84(9th Cir. 2008))). For these reasons, this action is DISMISSED.

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