Lopez v. Berkebile et al

Filing 9

FINDINGS and RECOMMENDATIONS Regarding Dismissal of Claims Against Staff at USP Big Sandy and USP Hazelton Without Prejudice for Improper Venue and Dismissal of Action With Prejudice for Failure to State a Claim, signed by Magistrate Judge Barbara A. McAuliffe on 1/27/15, referred to Judge O'Neill. Objections to F&R Due Within Thirty Days. (Marrujo, C)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 9 GILFREDO LOPEZ, 10 11 12 Plaintiff, v. D. BERKBILE, et al., 13 Defendants. 14 15 ) ) ) ) ) ) ) ) ) ) ) ) ) 1:14-cv-01003-LJO-BAM (PC) FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF CLAIMS AGAINST STAFF AT USP BIG SANDY AND USP HAZELTON WITHOUT PREJUDICE FOR IMPROPER VENUE AND DISMISSAL OF ACTION WITH PREJUDICE FOR FAILURE TO STATE A CLAIM THIRTY-DAY DEADLINE 16 Findings and Recommendations 17 I. 18 Dismissal of Claims Against Staff at USP Big Sandy and USP Hazelton Plaintiff Gilfredo Lopez (“Plaintiff”) is a federal prisoner proceeding pro se and in forma 19 pauperis in this civil action pursuant to Bivens v. Six Unknown Named Agents of Federal 20 Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999 (1971). Plaintiff initiated this action on June 21 16, 2014. (ECF No. 1.) 22 23 24 The bulk of Plaintiff’s complaint concerns allegations against staff at United States Penitentiary Big Sandy (“USP Big Sandy”) in Eastern Kentucky and United States Penitentiary Hazelton (“USP Hazelton”) in West Virginia. Venue for Plaintiff’s claims against staff at USP 25 Big Sandy is proper in the United States District Court for the Eastern District of Kentucky, and 26 venue for Plaintiff’s claims against staff at USP Hazelton is proper in the United States District 27 Court for the Northern District of West Virginia. See Costlow v. Weeks, 790 F.2d 1486, 1488 28 1 1 (9th Cir. 1986) (court may raise defective venue sua sponte); Fed. R. Civ. P. 21 (court may, on 2 its own, sever any claim against a party). These claims are not related to Plaintiff’s claims 3 arising out of events at United States Penitentiary Atwater (“USP Atwater”) in Atwater, 4 California.1 George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (citing Fed. R. Civ. P. 18(a)). 5 Accordingly, it is recommended that Plaintiff’s claims against staff at USP Big Sandy and USP 6 Hazelton are dismissed, without prejudice, for improper venue. 7 II. 8 A. Screening Requirement 9 The Court is required to screen complaints brought by prisoners seeking relief against a Claims against Staff at USP Atwater 10 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. § 11 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous or 12 malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary 13 relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); 28 14 U.S.C. § 1915(e)(2)(B)(ii). 15 A complaint must contain “a short and plain statement of the claim showing that the 16 pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 17 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 18 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 19 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 20 (2007)). While a plaintiff’s allegations are taken as true, courts “are not required to indulge 21 unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) 22 (internal quotation marks and citation omitted). 23 24 While prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, the pleading standard 25 1 26 27 28 AUnrelated claims against different defendants belong in different suits, not only to prevent the sort of morass [a multiple claim, multiple defendant] suit produce[s], but also to ensure that prisoners pay the required filing fees-for the Prison Litigation Reform Act limits to 3 the number of frivolous suits or appeals that any prisoner may file without prepayment of the required fees. 28 U.S.C. ' 1915(g).@ George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (citing Fed. R. Civ. P. 18(a)). 2 1 is now higher, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted), and to 2 survive screening, Plaintiff’s claims must be facially plausible, which requires sufficient factual 3 detail to allow the Court to reasonably infer that each named defendant is liable for the 4 misconduct alleged, Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks omitted); Moss v. 5 United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a 6 defendant acted unlawfully is not sufficient, and mere consistency with liability falls short of 7 satisfying the plausibility standard. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks 8 omitted); Moss, 572 F.3d at 969. 9 Bivens actions and actions under 42 U.S.C. § 1983 “are identical save for the 10 replacement of a state actor under § 1983 by a federal actor under Bivens.” Van Strum v. Lawn, 11 940 F.2d 406, 409 (9th Cir.1991). Under Bivens, a plaintiff may sue a federal officer in his or 12 her individual capacity for damages for violating the plaintiff’s constitutional rights. See Bivens, 13 403 U.S. at 397. To state a claim a plaintiff must allege: (1) that a right secured by the 14 Constitution of the United States was violated, and (2) that the alleged violation was committed 15 by a federal actor. 16 B. Plaintiff’s Claims 17 Plaintiff names the following staff at USP Atwater as defendants: (1) Warden Paul 18 Copenhaver; (2) the Executive Staff; (3) Administrative Remedy Coordinator K. Rodriguez; (4) 19 Unit Manager Gardea; (5) Case Manager Coles; (6) Counselor Scott; (7) Counselor Lyons; and 20 (10) other unknown staff. 21 Plaintiff alleges that he was transferred to USP Atwater in October 2012. At that time, he 22 spoke to Counselor Scott regarding his numerous filings at USP Hazelton. Counselor Scott 23 informed Plaintiff that those filings were never processed because Counselor Scott did not see 24 anything in Plaintiff’s file. As a result, Plaintiff filed an inmate request to staff directed to Ms. 25 K. Rodriguez, the Administrative Remedy Coordinator at USP Atwater. Plaintiff asked Ms. 26 Rodriguez about the status of two BP-8s that he has submitted while at USP Hazelton regarding 27 allegations of being assaulted. Plaintiff informed Ms. Rodriguez that he had been transferred 28 from USP Hazelton before he received any response regarding his filings. Plaintiff also 3 1 informed Ms. Rodriguez that he wished to continue exhausting his administrative remedies 2 regarding his outside assault. Plaintiff asked Ms. Rodriguez if she could find out if Counselor 3 Vankirk or Unit Manager Sweeney processed the two BP-8s he filed at USP Hazelton. Plaintiff 4 also inquired about a BP-9 that he had submitted to Warden Terry O’Brien while at USP 5 Hazelton. 6 Ms. Rodriguez informed Plaintiff that BP-8s are not tracked by the administrative remedy 7 coordinator because they are informal resolutions. Ms. Rodriguez also informed Plaintiff that 8 BP-9s and above are tracked and that she did not see any record of any BP-9s submitted while 9 Plaintiff was held at USP Hazelton. 10 Plaintiff repeatedly sent inmates requests to Ms. Rodriguez concerning his administrative 11 remedy filings while at USP Hazelton. Ms. Rodriguez has responded that she contacted USP 12 Hazelton, spoke with staff and Plaintiff’s filings were nowhere in the record. 13 On April 5, 2013, Plaintiff submitted a BP-8 to Counselor Lyons at USP Atwater 14 regarding his two BP-8s and the BP-9 he filed while at USP Hazelton. Counselor Lyons 15 informed Plaintiff that his filings at USP Hazelton were never logged or answered. Counselor 16 Lyons also informed Plaintiff that staff at USP Hazelton were responsible for the filings if they 17 were not logged in or answered prior to Plaintiff’s transfer. 18 Plaintiff complains that USP Atwater is telling him that they are not responsible for his 19 alleged assault or filings at USP Hazelton. Warden Copenhaver at USP Atwater told Plaintiff to 20 continue to file his administrative remedies by going through the proper chain of command. 21 Plaintiff’s claims against staff at USP Atwater concern the processing or tracking of his 22 inmate complaints at USP Hazelton. However, the Ninth Circuit Court of Appeals has held that 23 inmates have “no legitimate claim of entitlement to a grievance procedure.” Mann v. Adams, 855 24 F.2d 639 (9th Cir.1988) (internal citations omitted). As a result, Plaintiff cannot state a claim 25 regarding the handling or processing of an administrative grievance. See, e.g., Kiderlen v. Kane, 26 2013 WL 1680467, at *8 (E.D. Cal. Apr. 17, 2013). These deficiencies in Plaintiff’s claims 27 against staff at USP Atwater are not curable through amendment. Akhtar v. Mesa, 698 F.3d 28 4 1 1202, 1212-13 (9th Cir. 2012); Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). 2 Accordingly, the Court will recommend that these claims be dismissed without leave to amend. 3 III. 4 For the reasons stated, it is HEREBY RECOMMENDED that: 5 1. Plaintiff’s claims against staff at USP Big Sandy and USP Hazelton be dismissed, 6 7 Conclusion and Recommendation without prejudice, based on improper venue; 2. This action be dismissed, with prejudice, for failure to state a claim upon which relief 8 may be granted against Warden Paul Copenhaver, the Executive Staff, 9 Administrative Remedy Coordinator K. Rodriguez, Unit Manager Gardea, Case 10 Manager Coles, Counselor Scott, Counselor Lyons, and other unknown staff at USP 11 Atwater. 12 These Findings and Recommendations will be submitted to the United States District 13 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 14 fourteen (14) days after being served with these Findings and Recommendations, Plaintiff may 15 file written objections with the Court. The document should be captioned “Objections to 16 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 17 objections within the specified time may result in the waiver of the “right to challenge the 18 magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839, (9th Cir. 19 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 20 IT IS SO ORDERED. 21 Dated: /s/ Barbara January 27, 2015 22 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 5

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