Buchanan v. Clark et al

Filing 17

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Michael J. Seng on 11/22/2011 recommending dismissal of certain of Plaintiff's claims and defendants. Referred to Judge Lawrence J. O'Neill; Objections to F&R due by 12/15/2011. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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WHITTIER BUCHANAN,

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Plaintiff,

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CASE NO.

FINDINGS AND RECOMMENDATION FOR
DISMISSAL OF CERTAIN OF PLAINTIFF’S
CLAIMS AND DEFENDANTS

v.
G. CLARK, et al.,

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1:09-cv-02029-LJO-MJS (PC)

(ECF Nos. 15 and 16)
Defendants.

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/

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I.

INTRODUCTION

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On November 19, 2009, Plaintiff Whittier Buchanan, a state prisoner proceeding pro
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se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983.
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(Compl., ECF No. 1.) On July 21, 2011, after reviewing Plaintiff’s Complaint, the Court
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ordered Plaintiff to either file an amended complaint or notify the Court of his willingness
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to proceed only on his excessive force claims against Defendants Clark and Erickson.
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(Order, ECF No. 15.) Plaintiff has since notified the Court of his willingness to forgo an
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amended complaint and proceed with his cognizable excessive force claims. (Notice, ECF
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No. 16.) Accordingly, all claims in Plaintiff’s Complaint except for his excessive force
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claims against Defendants Clark and Erickson should now be dismissed. All of the
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Defendants named in the Complaint except for Clark and Erickson should also now be
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dismissed.
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II.

ANALYSIS

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The Court is required to screen complaints brought by prisoners seeking relief

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against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915(A)(a). The Court must dismiss a complaint or portion thereon if the prisoner has

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raised claims that are legally “frivolous or malicious,” that fail to state a claim upon which

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relief may be granted, or that seek monetary relief from a defendant who is immune from

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such relief. 28 U.S.C. § 1915(A)(b)(1),(2).

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The Court reviewed Plaintiff’s Complaint pursuant to this statute and issued a

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Screening Order on July 21, 2011. (Order, ECF No. 15.) In that Order, the Court

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identified at least fifteen causes of action and sixty-three defendants.

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The Court first addressed the broad retaliation and conspiracy claims that

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incorporated all the Complaint’s factual allegations. The numerous retaliation claims were

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all dismissed as conclusory and not supported by the facts alleged. (Id. at 7.) Plaintiff’s

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conspiracy claims were dismissed for failure to adequately allege a meeting of the minds

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by the Defendants. (Id. at 8, 9.)

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The Court then analyzed Plaintiff’s claim that he was denied access to the courts.

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Those claims were dismissed because Plaintiff did not satisfy all the claim’s elements; in

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particular, Plaintiff did not identify a claim he was prevented from bringing. (Id. at 11.) A

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related “failure to train” claim was dismissed because there was no link alleged between

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supervisory personnel and the alleged conduct that allegedly shut Plaintiff out of court.1

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(Id. at 13.)

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The Court also dismissed Plaintiff’s cruel and unusual punishment claims because

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Plaintiff did not identify any conduct that amounted to cruel and unusual punishment. (Id.)

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As to property that was allegedly confiscated by some of the Defendants, Plaintiff

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claimed violations of his Fourteenth, Fourth, and Eighth Amendment rights. The Court

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dismissed all of these claims. The Fourteenth Amendment Due Process claim was

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The sam e flaw was identified in Plaintiff’s other supervisory claim s. (Id. at 15, 22, 24, 25.)

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dismissed for failure to demonstrate compliance with California’s Tort Claims Act. (Id. at

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16, 17.) The Fourth Amendment seizure claim was dismissed because “[a]n inmate has

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no ‘reasonable expectation of privacy in his prison cell entitling him to the protection of the

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Fourth Amendment against unreasonable searches and seizures.’” (Id. at 18 (citing

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Hudson v. Palmer, 468 U.S. 517, 536 (1984).)

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Amendment claim because the deprivation of property was not sufficiently serious. (Id. at

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19.)

The Court dismissed the Eighth

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The Court then found a cognizable excessive force claim against Defendants Clark

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and Erickson. The facts alleged supported the conclusion that Defendants Clark and

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Erickson applied force maliciously and sadistically to cause harm. (Id. at 21.) Similar

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excessive force claims against other Defendants were dismissed because those claims did

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not adequately allege malicious and sadistic applications of force. (Id.)

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Plaintiff’s two medical claims were dismissed because the first claim did not allege

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deliberate indifference and the second claim was a purely conclusory allegation. (Id. at 23,

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24.)

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The failure to protect claims were also found to be conclusory and were thereby
dismissed. (Id. at 26.)

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The Court then addressed more specific retaliation claims. Those claims were

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dismissed for failure to allege that the protected conduct motivated the adverse action. (Id.

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at 27.)

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Plaintiff was instructed that in order to state a cause of action based on violations

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of California Code Sections, he must first demonstrate compliance with the California Tort

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Claims Act. (Id. at 28.) Plaintiff’s notice of his willingness to proceed on his cognizable

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claims made no mention of his efforts to comply with the California Tort Claims Act.

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Therefore, the Court will not exercise supplemental jurisdiction over Plaintiff’s state law

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claims.

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The Court gave Plaintiff the option to proceed only against Defendants Clark and

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Erickson on his excessive force claim or to file an amended complaint. Plaintiff has notified
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the Court that he wishes to proceed only on his excessive force claim against Defendants

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Clark and Erickson. (Notice, ECF No. 16.) Accordingly, Plaintiff’s other claims and all

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other Defendants should now be dismissed.

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III.

CONCLUSION

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Based on the foregoing, it is HEREBY RECOMMENDED that:

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1.

Plaintiff’s repeated retaliation claims be DISMISSED without prejudice;

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2.

Plaintiff’s conspiracy claim be DISMISSED without prejudice;

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3.

Plaintiff’s access to the courts claim be DISMISSED without prejudice;

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4.

Plaintiff’s cruel and unusual punishment claim be DISMISSED without

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prejudice;
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Plaintiff’s Due Process and Fourth Amendment claims be DISMISSED
without prejudice;

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Plaintiff’s inadequate medical care claims be DISMISSED without prejudice;

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Plaintiff’s Eighth Amendment failure to protect claim be DISMISSED without

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prejudice;

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Plaintiff’s various state law claims be DISMISSED without prejudice;

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The following Defendants be DISMISSED from this action: Matthew Cate,

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Hidy Lackner, James A. Yates, M. C. Davis, J. Mattingly, R. H. Trimble, M.

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E. Spearman, J. Ahlin, P. D. Brazelton, R. Shannon, A. Walker, Castro,

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Wheat, D. Daniel, J. Garrison, Larita, D. J. Hatten, R. Cazares, Lowry,

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Cooper, C. Dukes, J. Moreno, Delgado, Hernandez (A), Hernandez (B),

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Dutra, Brumhill, Holiday, M. Wilson, C. Nevarez, D. Huckabay, Lantz,

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McBryde, Sobbe, W. Oxborrow, D. Reeves, R. Carter, K. D. Geringer, J. D.

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Bennett, N. Greene, R. Ladd, J. L. Brown, M. Perry, A. Pineda, J. C. Smith,

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C. Huckabay, M. Flores, K. Marshall, C. Tingey, N. E. Villa, C. Lopez, G.

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Duran, J. A. Herrera, H. Martinez, N. Grannis, A. Nesbit, Kevorkian, R.

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Hansen,

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Compensation and Government Claims Board; and

Marcia

Mason-Wilson,

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J.

Clark,

and

California

Victims

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Plaintiff be permitted to proceed on his Eighth Amendment claim that
Defendants Clark and Erickson used excessive force.

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These Findings and Recommendations will be submitted to the United States

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District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. §

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636(b)(l).

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Recommendations, the parties may file written objections with the Court. The document

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should be captioned “Objections to Magistrate Judge’s Findings and Recommendation.”

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The parties are advised that failure to file objections within the specified time may waive

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the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir.

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Within twenty (20) days after being served with these Findings and

1991).

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IT IS SO ORDERED.

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Dated:
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November 22, 2011

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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