Canez v. Oliver

Filing 29

ORDER Adopting 27 Findings and Recommendations, Dismissing Action With Prejudice for Failure to State a Claim Under Section 1983 re 26 , and Directing Clerk of Court to Enter Judgment; ORDER That Dismissal is Subject to 28 USC 1915(G), signed by Chief Judge Anthony W. Ishii on 8/19/12. CASE CLOSED. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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JESSE MANNY CANEZ,

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CASE NO. 1:10-cv-02065-AWI-SKO PC

Plaintiff,

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v.

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ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS, DISMISSING
ACTION WITH PREJUDICE FOR FAILURE
TO STATE A CLAIM UNDER SECTION 1983,
AND DIRECTING CLERK OF COURT TO
ENTER JUDGMENT

OLIVER, et al.,

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Defendants.
(Docs. 26 and 27)

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ORDER THAT DISMISSAL IS SUBJECT
TO 28 U.S.C. § 1915(G)

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Plaintiff Jesse Manny Canez, a prisoner proceeding pro se and in forma pauperis, filed this

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civil rights action pursuant to 42 U.S.C. § 1983 on November 8, 2010. The matter was referred to

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a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On June 21, 2012, the Magistrate Judge issued a findings and recommendations (1) screening

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Plaintiff’s amended complaint and (2) recommending that this action be dismissed for failure to state

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a claim under section 1983. 28 U.S.C. § 1915A. Plaintiff filed a timely objection on July 27, 2012.

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Pursuant to 28 U.S.C. § 636(b)(1)(C), the Court has conducted a de novo review of this case.

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Having carefully reviewed the entire file, the Court finds the Findings and Recommendations to be

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supported by the record and by proper analysis.

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With regard to Plaintiff’s conditions-of-confinement claim, the Court is mindful that

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prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally

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construed and to have any doubt resolved in their favor. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir.

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2010) (citations omitted). However, the standard is not so lenient as to “unlock the doors of

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discovery for a plaintiff armed with nothing more than conclusions.” Ashcroft v. Iqbal, 556 U.S.
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662, 678-79 (2009). The sheer possibility that a defendant has acted unlawfully does not suffice.

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Id. at 678 (quotation marks omitted). In this instance, the amended complaint does not set forth

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factual allegations sufficient to support a claim that the defendants knowingly disregarded a

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substantial risk of harm to Plaintiff’s health or safety, and therefore, Plaintiff’s claim is not viable.1

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With respect to Plaintiff’s other claims, Plaintiff’s objections offer no grounds supporting

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a determination that the Magistrate Judge erred in finding that his procedural due process claim,

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retaliation claim, equal protection claim, and access-to-the-courts claim are not viable under section

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1983. Regarding Plaintiff’s argument that he was denied “a fair and impartial investigation” because

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the staff members he was complaining about were also reviewing his grievances, no federal claim

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lies. (Doc. 28, Obj., p. 3, lns.4-6.) There is no constitutional right to a grievance procedure and

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problems or irregularities with the procedure do not support a cognizable federal due process claim.

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Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003); Mann v. Adams, 855 F.2d 639, 640 (9th Cir.

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1988).

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Accordingly, it is HEREBY ORDERED that:

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The Court adopts the findings and recommendations filed on June 21, 2012, in full;

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This action is dismissed, with prejudice, for failure to state any claims under section

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1983;

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The Clerk of the Court shall enter judgment against Plaintiff; and

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4.

This dismissal is subject to the “three-strikes” provision set forth in 28 U.S.C. §
1915(g). Silva v. Vittorio, 658 F.3d 1090, 1098-99 (9th Cir. 2011).

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IT IS SO ORDERED.

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Dated:
0m8i78

August 19, 2012
CHIEF UNITED STATES DISTRICT JUDGE

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Although Plaintiff is, or was at all relevant times, a pretrial detainee, the Eighth Amendment’s deliberate
indifference standard is applied to pretrial detainees’ substantive due process claims. Simmons v. Navajo County,
Ariz., 609 F.3d 1011, 1018 (9th Cir. 2010); Clouthier v. County of Contra Costa, 591 F.3d 1232, 1242-43 (9th Cir.
2010); Anderson v. County of Kern, 45 F.3d 1310, 1312-13 (9th Cir. 1995).

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