Bradford v. Yates et al

Filing 21

SECOND SCREENING ORDER DISMISSING Action, With Prejudice, for Failure to State a Claim 19 ; ORDER That Dismissal is Subject to 28 U.S.C. § 1915(G), signed by Magistrate Judge Sheila K. Oberto on 5/14/12: 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). (CASE CLOSED)(Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DARRELL BRADFORD,

CASE NO. 1:10-cv-02074-SKO PC

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Plaintiff,

SECOND SCREENING ORDER DISMISSING
ACTION, WITH PREJUDICE, FOR FAILURE
TO STATE A CLAIM

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v.
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JAMES A. YATES, et al.,

(Doc. 19)

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

Defendants.
/

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Second Screening Order
I.

Screening Requirement and Standard

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Plaintiff Darrell Bradford, a state 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 9, 2010. On January 4, 2012, the

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Court dismissed Plaintiff’s original and amended complaints for failure to state a claim. On

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February 23, 2012, Plaintiff filed a second amended complaint.

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

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

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§ 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous or

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malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief

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from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); 28 U.S.C. §

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1915(e)(2)(B)(ii).

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A complaint must contain “a short and plain statement of the claim showing that the pleader

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is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but
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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,

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do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937 (2009) (citing Bell Atlantic

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Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)). While a plaintiff’s allegations are

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taken as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores,

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Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).

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While prisoners proceeding pro se in civil rights actions are still entitled to have their

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pleadings liberally construed and to have any doubt resolved in their favor, the pleading standard is

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now higher, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted), and to survive

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screening, Plaintiff’s claims must be facially plausible, which requires sufficient factual detail to

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allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged,

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Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret Service, 572 F.3d 962, 969

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(9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is not sufficient, and mere

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consistency with liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678

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(quotation marks omitted); Moss, 572 F.3d at 969.

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II.

Plaintiff’s Second Amended Complaint

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A.

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Plaintiff was transferred to Pleasant Valley State Prison on December 23, 2009; while

Allegations

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being processing, Defendants Witt and Valencia called him an Islamic extremist and confiscated his

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religious property. The religious attacks and harassment continued on January 13, 2010, when

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Defendants Shannon and McGaha placed false information in Plaintiff’s central file that he was a

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member of the “so called” prison gang Ansar El Muhammad. (Doc. 19, 2nd Amend. Comp., § IV.)

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On June 5, 2010, Plaintiff’s cell was searched while he was being interviewed by Defendant

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Fellow, and his holy Quran and other religious property were damaged or destroyed.

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On June 18, 2010, Defendant Davis denied Plaintiff’s appeal, thereby condoning staff’s
conduct, and the harassment and persecution continued.

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Plaintiff alleges that ultimately, James Yates, as warden, is responsible for staff conduct and

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he is therefore liable for the violation of Plaintiff’s constitutional rights.

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B.

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Section 1983 provides a cause of action for the violation of Plaintiff’s constitutional or other

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federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 1087, 1092

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(9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); Jones v.

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Williams, 297 F.3d 930, 934 (9th Cir. 2002). To state a claim, Plaintiff must demonstrate a link

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between actions or omissions of each named defendant and the violation of his rights; there is no

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respondeat superior liability under section 1983. Iqbal, 556 U.S. at 677; Simmons v. Navajo

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County, Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218,

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1235 (9th Cir. 2009); Jones, 297 F.3d at 934.

Viability of Claims

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The Court finds that Plaintiff’s conclusory assertions of misconduct by Defendants Witt,

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Valencia, Shannon, McGaha, Fellow, Davis, and Yates fail to give rise to any viable claims for

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relief. Mere verbal harassment or abuse does not violate the Constitution, and Plaintiff’s vague

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allegations that he was called an Islamic extremist, harassed, and persecuted do not support any

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independent claims for relief. Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987); Gaut v.

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Sunn, 810 F.2d 923, 925 (9th Cir. 1987).

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Although Plaintiff alleges that his religious property was confiscated upon his arrival at

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PVSP on December 23, 2009, and his religious property was damaged or destroyed during a cell

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search on June 5, 2010, neither allegation supports a viable claim that Plaintiff’s constitutional or

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statutory religious rights were violated or that Plaintiff was discriminated against based on his

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religion. 42 U.S.C. § 2000cc-1; Alvarez v. Hill, 518 F.3d 1152, 1155-56 (9th Cir. 2009); Shakur v.

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Schriro, 514 F.3d 878, 883-91 (9th Cir. 2008).

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The allegation that Defendants Shannon and McGaha falsely documented in Plaintiff’s

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central file that he was a member of a prison gang does not give rise to a claim for relief. Sandin v.

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Connor, 515 U.S. 472, 484, 115 S.Ct. 2293 (1995); Hernandez v. Johnston, 833 F.2d 1316, 1319

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(9th Cir. 1987).

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Finally, the denial of Plaintiff’s appeal by Defendant Davis does not support a claim for

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

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(9th Cir. 1988), and Defendant Yates cannot be held liable for the actions of his subordinates under
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a theory of respondeat superior, Plaintiff’s failure to state a claim against the subordinate employees

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notwithstanding, Iqbal, 556 U.S. at 677, 129 S.Ct. at 1949; Simmons, 609 F.3d at 1020-21.

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III.

Conclusion and Order

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Plaintiff’s second amended complaint fails to state any claims upon which relief may be

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granted. Plaintiff was previously provided with detailed notice of the deficiencies, including the

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applicable legal standards, and given leave to amend. Further leave to amend is not warranted.

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Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th

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Cir. 1987).

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Based on the foregoing, it is HEREBY ORDERED that:

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This action is DISMISSED, with prejudice, for failure to state any claims; and

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2.

This dismissal is subject to the “three-strikes” provision set forth in 28 U.S.C. §

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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:
ie14hj

May 14, 2012

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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