Evans v. Gonzalez et al

Filing 31

ORDER DISMISSING ACTION for Failure to State a Claim 29 ; DISMISSAL Counts as 28 USC 1915(G) STRIKE, signed by Magistrate Judge Dennis L. Beck on 8/12/11. CASE CLOSED. All Pending Motions Denied as Moot. (Gonzalez, R)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 ANTHONY RAY EVANS, 10 CASE NO. 1:10-CV-01680-DLB PC Plaintiff, 11 ORDER DISMISSING ACTION FOR FAILURE TO STATE A CLAIM v. (DOC. 29) 12 GONZALEZ, et al., 13 DISMISSAL COUNTS AS 28 U.S.C. § 1915(G) STRIKE Defendants. 14 / 15 16 17 18 Screening Order I. Background Plaintiff Anthony Ray Evans (“Plaintiff”) is a prisoner in the custody of the California 19 Department of Corrections and Rehabilitation (“CDCR”). Plaintiff is proceeding pro se and in 20 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this 21 action by filing his complaint on September 2, 2010 in the Central District of California. On 22 September 16, 2010, this case was transferred to the Eastern District of California. Doc. 4. On 23 April 25, 2011, the Court dismissed Plaintiff’s complaint for failure to state a claim, with leave to 24 amend. Doc. 17. On July 8, 2011, the Court issued an order to show cause why this action 25 should not be dismissed for failure to obey a court order and failure to state a claim. Doc. 28. 26 On July 29, 2011, Plaintiff filed his response. Doc. 29. In the interest of justice, the Court 27 construes Plaintiff’s response as a first amended complaint. 28 The Court is required to screen complaints brought by prisoners seeking relief against a 1 1 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 2 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 3 legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or 4 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 5 § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion thereof, that may have been 6 paid, the court shall dismiss the case at any time if the court determines that . . . the action or 7 appeal . . . fails to state a claim upon which relief may be granted.” 28 U.S.C. § 8 1915(e)(2)(B)(ii). 9 A complaint must contain “a short and plain statement of the claim showing that the 10 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 11 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 12 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing 13 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual 14 matter, accepted as true, to ‘state a claim that is plausible on its face.’” Id. (quoting Twombly, 15 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id. 16 II. 17 Summary Of First Amended Complaint And Analysis Plaintiff is incarcerated at California Correctional Institution (“CCI”) in Tehachapi, 18 California, where the events giving rise to this action occurred. Plaintiff names as Defendants 19 prison officials at CCI.1 20 Plaintiff alleges that he has a documented history of violence towards other cell mates. 21 Plaintiff contends that prison officials on May 13, 2010, had actual knowledge of Plaintiff’s 22 history and were deliberately indifferent to Plaintiff’s statements of violence towards potential 23 cell mates. Plaintiff contends that he was placed in a cell with another inmate and violence 24 transpired. 25 Plaintiff makes no requests for relief. Pursuant to Federal Rule of Civil Procedure 26 27 28 1 The Court presumes that Plaintiff refers to prison officials previously named in his original complaint. Plaintiff was informed by the Court that pursuant to Local Rule 220, amended pleadings are to be complete, without reference to any prior pleadings. 2 1 8(a)(3), Plaintiff is required to make a demand for the relief sought. Plaintiff thus fails to comply 2 with the Federal Rules of Civil Procedure. 3 Additionally, Plaintiff fails to state a claim. The Eighth Amendment protects prisoners 4 from inhumane methods of punishment and from inhumane conditions of confinement. Morgan 5 v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). Extreme deprivations are required to make 6 out a conditions of confinement claim, and only those deprivations denying the minimal civilized 7 measure of life’s necessities are sufficiently grave to form the basis of an Eighth Amendment 8 violation. Hudson v. McMillian, 503 U.S. 1, 9 (1992) (citations and quotations omitted). Prison 9 officials have a duty to take reasonable steps to protect inmates from physical abuse. Hoptowit v. 10 Ray, 682 F.2d 1237, 1250 (9th Cir. 1982). In order to state a claim for violation of the Eighth 11 Amendment, Plaintiff must allege facts sufficient to support a claim that officials knew of and 12 disregarded a substantial risk of serious harm to him. E.g., Farmer v. Brennan, 511 U.S. 825, 13 837 (1994); Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). Mere negligence on the part of 14 the official is not sufficient to establish liability, but rather, the official’s conduct must have been 15 wanton. Farmer, 511 U.S. at 835; Frost, 152 F.3d at 1128. 16 Plaintiff fails to state a claim for failure to protect Plaintiff from being housed with 17 another inmate. Plaintiff fails to allege facts which indicate that any prison officials knew of and 18 disregarded an excessive risk of serious harm to Plaintiff’s safety. The risk of serious harm 19 appears to occur to Plaintiff’s proposed cell mates, not to Plaintiff. 20 Plaintiff fails to link any Defendants to an alleged act or omission that violates his 21 constitutional rights. To state a claim under § 1983, a plaintiff must allege that (1) the defendant 22 acted under color of state law and (2) the defendant deprived him of rights secured by the 23 Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 24 2006). 25 The Court finds that Plaintiff will be unable to cure the deficiencies identified. Further 26 leave to amend will not be granted. See Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en 27 banc). 28 /// 3 1 2 3 4 III. Conclusion And Order Plaintiff fails to state any claims against any Defendants. Further leave to amend will not be granted. Based on the foregoing, it is HEREBY ORDERED that: 1. 5 This action is DISMISSED for failure to state a claim upon which relief may be granted under 42 U.S.C. § 1983; 6 2. All pending motions are DENIED as moot; and 7 3. This dismissal counts as a strike pursuant to 28 U.S.C. § 1915(g). 8 9 10 IT IS SO ORDERED. Dated: August 12, 2011 /s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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