Andy Smith v. Gonzales et al

Filing 10

FINDINGS and RECOMMENDATIONS Recommending Dismissal of Plaintiff's Action 9 for Failure to State a Claim, signed by Magistrate Judge Dennis L. Beck on 1/30/2012,referred to Judge O'Neill. Objections to F&R Due Within Twenty-One Days. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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ANDY SMITH,

CASE NO. 1:11-CV-00361-LJO-DLB PC

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FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF
PLAINTIFF’S ACTION FOR FAILURE TO
STATE A CLAIM (DOC. 9)

Plaintiff,
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v.
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T. GONZALES, III, et al.,

OBJECTIONS, IF ANY, DUE WITHIN
TWENTY-ONE DAYS

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Defendants.

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/

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Screening Order
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I.

Background

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Plaintiff Andy Smith (“Plaintiff”) is a prisoner in the custody of the California
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Department of Corrections and Rehabilitation (“CDCR”). Plaintiff is proceeding pro se and in
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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this
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action by filing his complaint on March 3, 2011. Doc. 1. The Court dismissed the complaint
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with leave to amend on September 19, 2011. Plaintiff filed a first amended complaint on
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October 12, 2011. Doc. 9.
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The Court is required to screen complaints brought by prisoners seeking relief against a
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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The
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Court must dismiss a complaint or portion thereof if it is legally “frivolous, malicious or fail to
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state a claim upon which relief may be granted” or seeks monetary relief from a defendant who is
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immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any
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portion 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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A complaint must contain “a short and plain statement of the claim showing that the

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pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not

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required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949

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

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“sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

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Id. (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal

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conclusions are not. Id.

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II.

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Summary Of First Amended Complaint
Plaintiff was previously incarcerated at California State Prison at Corcoran (“CSP-Cor”),

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where the events giving rise to this action occurred. Plaintiff names T. Gonzales III, a

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correctional sergeant, as the sole Defendant.1

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In the amended complaint, Plaintiff alleges the following: Defendant Gonzales falsely

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claimed that Plaintiff had threatened him without evidence to support the charge. As a result,

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Plaintiff was placed in “Ad-Seg” housing where he was subjected to “harsh, inhumane and

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degrading conditions” that exacerbated his mental health illness.

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Plaintiff also alleges that his personal property was withheld from him for more than two

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months. When his property was returned, most of it was missing. Plaintiff contends that

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Defendant Gonzales acted with deliberate indifference to Plaintiff’s emotional and psychological

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pain by deliberately disposing of Plaintiff’s personal property.

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Plaintiff alleges a violation of the Eighth Amendment. He requests compensatory and
punitive damages, along with injunctive relief for the return of good time credits.

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Plaintiff no longer asserts any claims against A. Baer, who was named as a defendant in the original
complaint.

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III.

Analysis

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Eighth Amendment

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The Eighth Amendment protects prisoners from inhumane methods of punishment and

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from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir.

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2006). Extreme deprivations are required to make out a conditions of confinement claim, and

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only those deprivations denying the minimal civilized measure of life’s necessities are

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sufficiently grave to form the basis of an Eighth Amendment violation. Hudson v. McMillian,

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503 U.S. 1, 9 (1992) (citations and quotations omitted). In order to state a claim for violation of

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the Eighth Amendment, Plaintiff must allege facts sufficient to support a claim that officials

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knew of and disregarded a substantial risk of serious harm to him. E.g., Farmer v. Brennan, 511

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U.S. 825, 837 (1994); Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). Mere negligence on

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the part of the official is not sufficient to establish liability, but rather, the official’s conduct must

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have been wanton. Farmer, 511 U.S. at 835; Frost, 152 F.3d at 1128.

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Here, Plaintiff fails to allege any cognizable Eighth Amendment claims. Plaintiff

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contends that Defendant Gonzales falsely claimed that Plaintiff had threatened him, which

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resulted in an administrative segregation placement. Plaintiff also contends that Defendant

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Gonzales disposed of his personal property. These contentions do not demonstrate deliberate

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indifference to a substantial risk of serious harm to Plaintiff.

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Plaintiff has attached an inmate appeal form (“CDC 602"), which details events from

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April through October 2009, along with responses to his appeal, property inventories, parts of his

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general chrono file regarding loss of privileges and an inmate work supervisors time log. These

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exhibits do not support a claim for deliberate indifference in violation of the Eighth Amendment.

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At most, the exhibits demonstrate that Defendant Gonzales yelled or screamed at Plaintiff on

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various occasions in April, May and July 2009. Doc. 9 pp. 7-8. Verbal harassment does not

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violate the Eighth Amendment. See Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996).

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The exhibits also suggest that Defendant Gonzales withheld certain boxes of Plaintiff’s
property. The boxes were located and Plaintiff was provided an opportunity to retain six (6)
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cubic feet of property. For those items missing and for which Plaintiff provided proof of

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ownership, he was to be afforded equitable reimbursement. Doc. 9 pp. 12-18. Plaintiff’s

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property claim does not constitute an extreme deprivation in violation of the Eighth Amendment.

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Hudson, 503 U.S. at 9.

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IV.

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Conclusion And Recommendation
Plaintiff fails to state a cognizable § 1983 claim against the Defendant. Plaintiff was

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previously provided leave to amend to cure the deficiencies identified herein, but was unable to

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do so. Further leave to amend will not be granted. See Lopez v. Smith, 203 F.3d 1122, 1127 (9th

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Cir. 2000) (en banc).

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Accordingly, it is HEREBY RECOMMENDED that:

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This action be dismissed for failure to state a claim upon which relief may be
granted under 42 U.S.C. § 1983; and

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2.

The Clerk of the Court be directed to close this action.

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These Findings and Recommendations will be submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-

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one (21) days after being served with these Findings and Recommendations, the parties may file

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written objections with the Court. The document should be captioned “Objections to Magistrate

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Judge’s Findings and Recommendations.” The parties are advised that failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Martinez v.

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Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:
3b142a

January 30, 2012

/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE

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