Smith v. Rios Jr., et al

Filing 41

FINDINGS and RECOMMENDATIONS recommending that this Action be DISMISSED With Prejudice for Failure to State a Claim re 40 First Amended Prisoner Civil Rights Complaint, signed by Magistrate Judge Michael J. Seng on 2/12/2012. Referred to Judge Ishii. Objections to F&R due within thirty (30) days. (Jessen, A)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 NATHAN SMITH, 11 CASE NO. Plaintiff, 12 1:10-cv-01554-AWI-MJS (PC) ORDER RECOMMENDING WITH PREJUDICE DISMISSAL v. (ECF No. 40) 13 H. A. RIOS, JR., et al., 14 PLAINTIFF’S OBJECTIONS, IF ANY, DUE IN THIRTY (30) DAYS Defendants. 15 / 16 17 SCREENING ORDER 18 19 I. PROCEDURAL HISTORY 20 Plaintiff Nathan Smith, a federal prisoner proceeding pro se and in forma pauperis, 21 filed this civil action on August 9, 2010, pursuant to Bivens v. Six Unknown Named Agents 22 of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), which provides a remedy for the 23 violation of civil rights by federal actors. (ECF No. 1.) On March 28, 2011, Plaintiff filed 24 25 26 a Motion to Voluntarily Dismiss Eric H. Holder, Jr. as a defendant in this action. (ECF No. 33.) The Court granted Plaintiff’s motion. (ECF No. 34.) Plaintiff’s Complaint (ECF No. 27 1 1 1) was screened and dismissed on December 2, 2011, with leave to amend, for failure to 2 state a cognizable claim. (ECF No. 37.) Plaintiff’s First Amended Complaint (ECF No. 40) 3 is now before the Court for screening. 4 5 II. SCREENING REQUIREMENT 6 The Court is required to screen complaints brought by prisoners seeking relief 7 against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 8 § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has 9 raised claims that are legally “frivolous, malicious,” or that fail to state a claim upon which 10 relief may be granted, or that seek monetary relief from a defendant who is immune from 11 12 such relief. 28 U.S.C. § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion 13 thereof, that may have been paid, the court shall dismiss the case at any time if the court 14 determines that . . . the action or appeal . . . fails to state a claim upon which relief may be 15 granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 16 III. 17 SUMMARY OF FIRST AMENDED COMPLAINT H.A. Rios, Jr., Warden, United States Penitentiary, Atwater (“Atwater”) is the sole 18 19 Defendant in this action. Plaintiff alleges the following: 20 On June 22, 2010, a letter complying with every prerequisite necessary to be treated 21 as legal mail arrived at Atwater. The letter was processed through the regular mail system 22 and was “mistakenly delivered to the wrong [inmate].” (Compl. at 1, 2.) The letter 23 discussed a sexual assault. The fact that Plaintiff had been involved in a sexual assault 24 became known throughout the inmate population and, as a result, “Plaintiff suffered 25 26 threats, embarrassment, lost sense of well-being, taunting, forced solitary confinement 27 2 1 and a host of other fallout that eventually resulted in a broken right thumb.” (Id. at 2.) 2 3 Warden Tamyra Jarvis authorized Plaintiff to be placed in full restraints for ten days because Plaintiff refused a cellmate. Plaintiff had an epileptic seizure on December 15, 4 5 2011, while he was in restraints and broke his “right cmc joint.” (Id.) “Warden H.A. Rios, Jr. has overseen and witnessed the entirety of this error and still 6 7 will not admit that his staff was wrong.” (Id. at 3.) 8 IV. 9 10 ANALYSIS A complaint 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). Detailed factual allegations are 11 12 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by 13 mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 14 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set 15 forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its 16 face.’” Id. Facial plausibility demands more than the mere possibility that a defendant 17 committed misconduct and, while factual allegations are accepted as true, legal 18 19 conclusions are not. Id. at 1949-50. 20 Warden Rios remains the only Defendant named in this action. Aside from being 21 listed in the caption of the amended complaint, Plaintiff only names Rios once. Plaintiff 22 alleges that the Warden was aware of the mail error and refused to admit his staff was 23 wrong. (Compl. at 3.) The Court’s previous screening order instructed Plaintiff that in 24 order to sate a cognizable claim he must allege facts showing how the individually named 25 defendants caused or personally participated in causing the constitutional harm alleged in 26 27 the amended complaint. Arnold v. IBM, 637 F.2d 1350, 1355 (9th Cir. 1981): see also 3 1 Samuel v. Michaud, 980 F.Supp. 1381, 1396 (D. Idaho March 7, 1996) (“A person deprives 2 another of a constitutional right, within the meaning of Bivens, if he does an affirmative act, 3 participates in another's affirmative acts, or omits to perform an act which he is legally 4 5 6 required to do that causes the deprivation complained of”) (citing Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988). 7 The sole allegation that Warden Rios “witnessed the [mail] error” is conclusory and 8 insufficient to state a cognizable claim. The only reasonable conclusion the Court can 9 come to is that Defendant is sued solely because of his position as Warden of the prison 10 where Plaintiff was wronged. Plaintiff was previously instructed that a defendant cannot 11 12 be held liable solely on the basis of supervisory responsibility or position. Monell v. New 13 York City Dept. of Social Services, 436 U.S. 658, 694 n. 58 (1978); see also Padway v. 14 Palches, 665 F.2d 965, 968 (9th Cir. 1982); Terrell v. Brewer, 935 F.2d 1015, 1018 (9th 15 Cir. 1990) (respondeat superior theory of liability inapplicable to Bivens actions). 16 17 Plaintiff has failed to link the alleged violations with any individual. The Court previously notified Plaintiff of the deficiency in his pleadings and provided him with an 18 opportunity to amend. Because Plaintiff appears unable to correct the shortfalls in his 19 20 21 claim, dismissal without leave to amend is appropriate. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). 22 The allegation that Plaintiff was placed in full restraints and broke a joint while 23 experiencing a seizure has been added to the pleading inappropriately. Plaintiff was told 24 that he was given leave to amend for the purpose of correcting deficiencies identified in 25 the screening order and not for the purposes of adding new claims. George v. Smith, 507 26 27 F.3d 605, 607 (7th Cir. 2007). 4 1 IV. 2 3 CONCLUSION AND RECOMMENDATION Plaintiff’s First Amended Complaint does not state a cognizable claim against the named Defendants. 4 Accordingly, it is HEREBY RECOMMENDED that: 5 1. 6 This action be dismissed with prejudice for failure to state a claim pursuant 7 to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 8 (1971). 9 10 These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 11 12 636(b)(l). Within thirty (30) days after being served with these Findings and 13 Recommendations, Plaintiff may file written objections with the Court. The document 14 should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” 15 Plaintiff is advised that failure to file objections within the specified time may waive the right 16 to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 17 18 19 IT IS SO ORDERED. 20 Dated: 21 ci4d6 February 12, 2012 /s/ Michael J. Seng UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 5

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