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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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NATHAN SMITH,

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CASE NO.
Plaintiff,

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1:10-cv-01554-AWI-MJS (PC)

ORDER RECOMMENDING
WITH PREJUDICE

DISMISSAL

v.
(ECF No. 40)

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H. A. RIOS, JR., et al.,
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PLAINTIFF’S OBJECTIONS, IF ANY, DUE
IN THIRTY (30) DAYS

Defendants.

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/

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SCREENING ORDER

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I.

PROCEDURAL HISTORY

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Plaintiff Nathan Smith, a federal prisoner proceeding pro se and in forma pauperis,

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filed this civil action on August 9, 2010, pursuant to Bivens v. Six Unknown Named Agents

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of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), which provides a remedy for the

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violation of civil rights by federal actors. (ECF No. 1.) On March 28, 2011, Plaintiff filed

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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.

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1) was screened and dismissed on December 2, 2011, with leave to amend, for failure to

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state a cognizable claim. (ECF No. 37.) Plaintiff’s First Amended Complaint (ECF No. 40)

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is now before the Court for screening.

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II.

SCREENING REQUIREMENT

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

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raised claims that are legally “frivolous, malicious,” or 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. § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion

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thereof, that may have been paid, the court shall dismiss the case at any time if the court

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determines that . . . the action or appeal . . . fails to state a claim upon which relief may be

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granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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III.

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SUMMARY OF FIRST AMENDED COMPLAINT
H.A. Rios, Jr., Warden, United States Penitentiary, Atwater (“Atwater”) is the sole

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Defendant in this action. Plaintiff alleges the following:

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On June 22, 2010, a letter complying with every prerequisite necessary to be treated

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as legal mail arrived at Atwater. The letter was processed through the regular mail system

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and was “mistakenly delivered to the wrong [inmate].” (Compl. at 1, 2.) The letter

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discussed a sexual assault. The fact that Plaintiff had been involved in a sexual assault

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became known throughout the inmate population and, as a result, “Plaintiff suffered

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threats, embarrassment, lost sense of well-being, taunting, forced solitary confinement

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and a host of other fallout that eventually resulted in a broken right thumb.” (Id. at 2.)

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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,

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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

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will not admit that his staff was wrong.” (Id. at 3.)

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IV.

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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

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not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by

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mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949

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(2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set

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forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its

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face.’” Id. Facial plausibility demands more than the mere possibility that a defendant

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committed misconduct and, while factual allegations are accepted as true, legal

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conclusions are not. Id. at 1949-50.

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Warden Rios remains the only Defendant named in this action. Aside from being

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listed in the caption of the amended complaint, Plaintiff only names Rios once. Plaintiff

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alleges that the Warden was aware of the mail error and refused to admit his staff was

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wrong. (Compl. at 3.) The Court’s previous screening order instructed Plaintiff that in

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order to sate a cognizable claim he must allege facts showing how the individually named

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defendants caused or personally participated in causing the constitutional harm alleged in
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the amended complaint. Arnold v. IBM, 637 F.2d 1350, 1355 (9th Cir. 1981): see also
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Samuel v. Michaud, 980 F.Supp. 1381, 1396 (D. Idaho March 7, 1996) (“A person deprives

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another of a constitutional right, within the meaning of Bivens, if he does an affirmative act,

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participates in another's affirmative acts, or omits to perform an act which he is legally

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required to do that causes the deprivation complained of”) (citing Leer v. Murphy, 844 F.2d
628, 633 (9th Cir. 1988).

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The sole allegation that Warden Rios “witnessed the [mail] error” is conclusory and

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insufficient to state a cognizable claim. The only reasonable conclusion the Court can

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come to is that Defendant is sued solely because of his position as Warden of the prison

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where Plaintiff was wronged. Plaintiff was previously instructed that a defendant cannot

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be held liable solely on the basis of supervisory responsibility or position. Monell v. New

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York City Dept. of Social Services, 436 U.S. 658, 694 n. 58 (1978); see also Padway v.

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Palches, 665 F.2d 965, 968 (9th Cir. 1982); Terrell v. Brewer, 935 F.2d 1015, 1018 (9th

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Cir. 1990) (respondeat superior theory of liability inapplicable to Bivens actions).

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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

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opportunity to amend. Because Plaintiff appears unable to correct the shortfalls in his
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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).

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The allegation that Plaintiff was placed in full restraints and broke a joint while

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experiencing a seizure has been added to the pleading inappropriately. Plaintiff was told

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that he was given leave to amend for the purpose of correcting deficiencies identified in

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the screening order and not for the purposes of adding new claims. George v. Smith, 507
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F.3d 605, 607 (7th Cir. 2007).
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IV.

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CONCLUSION AND RECOMMENDATION
Plaintiff’s First Amended Complaint does not state a cognizable claim against the

named Defendants.

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Accordingly, it is HEREBY RECOMMENDED that:

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1.

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This action be dismissed with prejudice for failure to state a claim pursuant

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to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388

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(1971).

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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. §

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636(b)(l).

Within thirty (30) days after being served with these Findings and

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

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

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Plaintiff is advised that failure to file objections within the specified time may waive the right

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to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.

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Dated:

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ci4d6

February 12, 2012

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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