Dews v. Brown et al

Filing 26

FINDINGS and RECOMMENDATIONS Recommending Dismissal of Action, with Prejudice, for Failure to State a Claim Upon Which Relief May be Granted 22 , signed by Magistrate Judge Sheila K. Oberto on 3/12/13. Referred to Judge Ishii; 30-Day Objection Deadline. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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CLARENCE LEON DEWS,

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Plaintiff,

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CASE NO. 1:12-cv-00278-AWI-SKO PC
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF ACTION,
WITH PREJUDICE, FOR FAILURE TO
STATE A CLAIM UPON WHICH RELIEF
MAY BE GRANTED

v.
EDMUND G. BROWN, et al.,

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Defendants.

(Doc. 22)

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THIRTY-DAY OBJECTION DEADLINE
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Findings and Recommendations Following Second Screening
I.

Procedural History

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Plaintiff Clarence Leon Dews, a state prisoner proceeding pro se and in forma pauperis, filed

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this civil rights action pursuant to 42 U.S.C. § 1983 on February 21, 2012. On March 28, 2012,

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Plaintiff filed an amended complaint as a matter of right, Fed. R. Civ. P. 15(a), and on November

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19, 2012, the Court dismissed the amended complaint, with leave to amend, for failure to state any

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claims, 28 U.S.C. § 1915A. Plaintiff filed a second amended complaint on December 7, 2012. For

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the reasons which follow, the Court finds that the second amended complaint fails to state any claims

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and it recommends dismissal of this action, with prejudice.

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II.

Screening Requirement and Standard

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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 an 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 the prisoner has raised claims that are legally

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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).
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“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall

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dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a

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claim upon which relief may be 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 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)), and courts “are not required to

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indulge unwarranted inferences,” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009)

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(internal quotation marks and citation omitted). While factual allegations are accepted as true, legal

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conclusions are not. Iqbal, 556 U.S. at 678.

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Prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings

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liberally construed and to have any doubt resolved in their favor, Wilhelm v. Rotman, 680 F.3d

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1113, 1121-23 (9th Cir. 2012); Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010), but Plaintiff’s

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claims must be facially plausible to survive screening, 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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III.

Discussion

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A.

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Plaintiff, who is currently incarcerated at Kern Valley State Prison in Delano, California,

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brings this action against Warden Maurice Junious; Correctional Counselors F. Uriaz, D. Silva, A.

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Hurtado, B. Spriester, E. Moreno, and J. Faure; and Classification Services Representative D. Garcia

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for violating his rights while he was at North Kern State Prison, which is also located in Delano,

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California.

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Allegations

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Plaintiff’s allegations are vague and disjointed, but his myriad of legal claims appear to arise

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out of his transfer to a different institution despite his need for surgery. Plaintiff alleges that he is

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totally disabled, and his classification designation was changed from “high risk medical” to “totally

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disabled” on October 12, 2011. (Doc. 22, 2nd Amend. Comp., p. 3.) Plaintiff alleges very generally

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that he was deprived of medical and mental health care, and he was deprived of necessary shoulder

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surgery by virtue of his transfer out of North Kern State Prison.1 (Id., p. 4.) Plaintiff alleges that he

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had injuries to his right shoulder, right arm, and back; his injuries were visible, including large

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amounts of pooled blood on his right side from internal bleeding; and he needed immediate surgery.

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(Id.)

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B.

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The Eighth Amendment protects prisoners from inhumane methods of punishment and from

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inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006).

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Extreme deprivations are required to make out a conditions of confinement claim, and only those

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deprivations denying the minimal civilized measure of life’s necessities are sufficiently grave to form

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the basis of an Eighth Amendment violation. Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995

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(1992) (citations and quotations omitted). In order to state a claim for violation of the Eighth

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Amendment, the plaintiff must allege facts sufficient to support a claim that prison officials knew

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

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U.S. 825, 847, 114 S.Ct. 1970 (1994); Thomas v. Ponder, 611 F.3d 1144, 1151-52 (9th Cir. 2010);

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Foster v. Runnels, 554 F.3d 807, 812-14 (9th Cir. 2009); Frost v. Agnos, 152 F.3d 1124, 1128 (9th

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Cir. 1998).

Eighth Amendment

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Plaintiff fails to state a claim under the Eighth Amendment arising out of the denial of

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medical or mental health care, or on any other ground. Plaintiff’s second amended complaint is

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devoid of any facts which would support a claim that prison officials knowingly disregarded a

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substantial risk of harm to his health or safety. Farmer, 511 U.S. at 837.

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The Court takes judicial notice of the facts that North Kern State Prison is a reception center and that
Plaintiff was transferred to Kern Valley State Prison, which is in the same city.

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C.

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Although Plaintiff alleges his right to equal protection was violated, his second amended

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complaint contains no facts which suggest he was treated differently than other similarly situated

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inmates or otherwise intentionally discriminated against. E.g., Village of Willowbrook v. Olech, 528

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U.S. 562, 564, 120 S.Ct. 1073 (2000); City of Cleburne v. Cleburne Living Center, Inc., 473 U.S.

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432, 439, 105 S.Ct. 3249 (1985); Hartmann v. California Dep’t of Corr. & Rehab., __ F.3d __, __,

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No. 11-16008, 2013 WL 600215, at *6 (9th Cir. Feb. 19, 2013); Shakur v. Schriro, 514 F.3d 878,

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891 (9th Cir. 2008); Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003).

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D.

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Equal Protection

Due Process

Plaintiff also alleges unspecified, unsupported violations of due process.

However,

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Plaintiff’s second amended complaint sets forth no facts supporting a claim that he was deprived of

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a protected liberty or property interest without the procedural protections he was due under federal

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law. Wilkinson v. Austin, 545 U.S. 209, 221, 125 S.Ct. 2384 (2005); Wolff v. McDonnell, 418 U.S.

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539, 556, 94 S.Ct. 2963 (1974). To the extent Plaintiff’s claim is based on his transfer out of North

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Kern State Prison, Plaintiff is not entitled to be incarcerated at a particular institution. Wilkinson,

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545 U.S. at 221-22.

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E.

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Plaintiff alleges the existence of unspecified conspiracies. However, Plaintiff has not shown

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the existence of an agreement or a meeting of the minds to violate his constitutional rights or an

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actual deprivation of any constitutional rights. Avalos v. Baca, 596 F.3d 583, 592 (9th Cir. 2010);

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Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2001).

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IV.

Conspiracy

Conclusion and Recommendation

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Plaintiff’s second amended complaint fails to state any claims for relief under the Eighth

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Amendment, under the Equal Protection and Due Process Clauses of the Fourteenth Amendment,

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or under any other constitutional amendment or other federal law. Plaintiff was previously notified

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of the deficiencies in his claims and given to leave to amend, but his second amended complaint

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remains deficient and the Court does not recommend that further leave to amend be granted. Akhtar

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v. Mesa, 698 F.3d 1202, 1212-13 (9th Cir. 2012); Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir.
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2000); Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Accordingly, the Court HEREBY

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RECOMMENDS that this action be dismissed, with prejudice, for failure to state a claim upon

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which relief may be granted.

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

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30)

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days after being served with these Findings and Recommendations, Plaintiff may file written

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objections with the Court. The document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendations.” Plaintiff is advised that failure to file objections within the

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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d

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1153 (9th Cir. 1991).

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IT IS SO ORDERED.

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Dated:
ie14hj

March 12, 2013

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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