Perez v. Junious

Filing 19

FINDINGS And RECOMMENDATION To Dismiss Action For Failure To State A Claim (Doc. 18 ), 30-Day Deadline, signed by Magistrate Judge Jennifer L. Thurston on 3/31/2015. F&R's referred to Judge Anthony W. Ishii; Objections to F&R due by 5/4/2015. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RAYMOND PEREZ,
Plaintiff,

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Case No. 1:14-cv-00458-JLT (PC)
FINDINGS AND RECOMMENDATION
TO DISMISS ACTION FOR FAILURE
TO STATE A CLAIM

v.
JUNIOUS,

(Doc. 18)
Defendant.

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30-DAY DEADLINE

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I. Findings

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Plaintiff, Raymond Perez, is a state prisoner proceeding pro se and in forma pauperis in

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this in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on March

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31, 2014. (Doc. 1.) The Complaint was screened and dismissed with leave to amend for failure

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to state a claim. (Doc. 8.) Plaintiff's First Amended Complaint ("1stAC") was also screened and

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dismissed with leave to amend for failure to state a claim. (Docs. 15, 17.) Plaintiff's Second

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Amended Complaint ("2ndAC") is now before the Court for screening. (Doc. 18.)

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Despite having twice been given the pleading requirements and legal standards for the

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claims he appears to be attempting to state and being told that the 1stAC did not state any

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cognizable claims, Plaintiff duplicated both his delineated claims and factual allegations from the

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1stAC in the 2ndAC. Thus, the 2ndAC does not state a cognizable claim and this action should

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be dismissed.

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As stated in the prior screening orders, the Court is required to screen complaints brought

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by prisoners seeking relief against a governmental entity or officer or employee of a

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governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion

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thereof if the prisoner has raised claims that are legally frivolous, malicious, fail to state a claim

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upon which relief may be granted, or that seek monetary relief from a defendant who is immune

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from such relief. 28 U.S.C. § 1915A(b)(1),(2); 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).

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In the 2ndAC, Plaintiff complains of acts that occurred while he was an inmate at North

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Kern State Prison ("NKSP") in Delano, California. The only substantive difference between the

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1stAC and the 2ndAC is that Plaintiff now names Correctional Officer B. Gentry as the only

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Defendant in this action -- instead of the nine individuals he named in the 1stAC. Plaintiff still

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seeks monetary relief and wants the defendant to be reprimanded.

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In the 2ndAC, Plaintiff again delineates his claims as: (1) "Civil right violated pursuant to

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42 U.S.C. §1983 denied due process, violated 42 U.S.C.A. § 1997C(a) access to court under color

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of state law denied adequate medical care" (Doc. 15, 1stAC, p. 3; Doc. 18, 2ndAC, p. 3) and (2)

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"Eighth Amendment protection from physical brutality right to safe condition Rhodes v.

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Chapman 452 U.S. 337 346 (1981), Estelle v. Gamble 429 U.S. 97 (1976)" (Doc. 15, 1stAc, p. 4;

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Doc. 18, 2ndAC, p. 4).
Further, Plaintiff's allegations in the 2ndAC also replicate the allegations stated in the

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1stAC. In his first claim, Plaintiff again alleges:1
On January 26, 20112 I was clearly protecting myself while doing so I
became a victim of physical brutality denied decent condition also denied
Eighth Amendment protection censorship of mail beaten on head causing
real significant illness and disability medical condition a severe limitation
of function or ability to preform daily activities of life that may cause
premature death. Now I need eye glasses always having head aces
always needing medication trying to control pain black out falling out
trying to get Olsen review of medical record but deny of them.

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These are all of Plaintiff's allegations as to both of his claims which are replicated verbatim sans any effort to make
corrections. (See Doc. 15, 1stAC, pp. 3-4; Doc. 18, 2ndAC, pp. 3-4.)
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Plaintiff lists this date in the 2ndAC. In the 1stAC, Plaintiff began this claim by stating "On the above date . . . ."
(See Doc. 15, 1stAC, p. 3; Doc. 18, 2ndAC, p. 3.) This is the only difference between the 1stAC and the 2ndAC.

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In his second claim, Plaintiff again alleges:
Palmer v. Johnson 193 F.3d 346 (5th Cir. 1999) C/O B. Gentry did in fact
pepper spray and struck me three times head thigh area and elbow I was
knocked unconscious can't remember much more until C/O grab me
placing hand cuff(s) on me without any medical attention since incident
been having multiple medical problem due to daily chronic care
headaches which told I will have to deal with rest of my life.

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As discussed in the prior screening order, these allegations fail to state any cognizable

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claims. While Plaintiff was given leave to amend to attempt to correct the deficiencies in his

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pleading so as to state a cognizable claim, the required pleading standards, and the applicable

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legal standards for his delineated claims, Plaintiff made absolutely no effort to rectify his pleading

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errors and merely copied his prior allegations and claims. Thus, it appears that Plaintiff is unable

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to state cognizable claims. Given his lack of effort to rectify his pleading, leave to amend would

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be futile and need not be granted again. See California Architectural Bldg. Prod. v. Franciscan

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Ceramics, 818 F.2d 1466, 1472 (9th Cir. 1988) ("Valid reasons for denying leave to amend

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include undue delay, bad faith, prejudice, and futility."); see also Klamath-Lake Pharm. Ass’n v.

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Klamath Med. Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that while leave to

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amend shall be freely given, the court does not have to allow futile amendments).

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II. Recommendation

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The 2ndAC is, for all intents and purposes a duplicate of the 1stAC and fails to state a

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cognizable claim. Given Plaintiff's persistence in attempting to state causes of action on

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allegations that he as previously been advised are deficient, it appears futile to allow further

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amendment.

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Accordingly, it is HEREBY RECOMMENDED that this entire action be dismissed
without prejudice.
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 Title 28 U.S.C. ' 636(b)(l). Within 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 AObjections 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 result in the waiver of rights on appeal. Wilkerson v. Wheeler, __ F.3d __, __,

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No. 11-17911, 2014 WL 6435497, at *3 (9th Cir. Nov. 18, 2014) (citing Baxter v. Sullivan, 923

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F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

March 31, 2015

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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