Townsel v. Madera County Dept Probation et al

Filing 11

ORDER Adopting Findings And Recommendations (ECF No. 6 ), Thirty-Day Deadline, signed by District Judge Lawrence J. O'Neill on 7/8/2015. (First Amended Complaint due by 8/10/2015)(Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DAVID TOWNSEL,
Plaintiff,

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Case No. 1:15-cv-00763-LJO-SAB
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS

v.
(ECF No. 6)

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MADERA COUNTY DEPT PROBATION,
et al.,

THIRTY-DAY DEADLINE

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Defendants.
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Plaintiff filed the complaint in this action on May 19, 2015. (ECF No. 1.) The action
was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local
Rule 302. On July 2, 2015, this Court entered an order consolidating Townsel v. Madera County
Behavioral Health Services, No. 1:15-cv-00764-AWI-GSA, with this action. (ECF No. 4). This
Order addresses both the complaint filed in Case No. 1:15-cv-00763 LJO SAB and the complaint
filed in Case No. 1:15-cv-00764 AWI GSA.

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1. F&Rs Recommending Dismissal of Certain Claims in Original Complaint filed in
Case No. 1:15-cv-00763 LJO SAB.
On May 27, 2015, the Magistrate Judge filed Findings and Recommendations (“F&Rs”)
recommending dismissal of certain claims and providing Plaintiff with an opportunity to file an
amended complaint. The F&Rs were served on Plaintiff and contained notice that any objections
to the F&Rs were to be filed within thirty days (30) days from the date of service. The period for
filing objections has now passed and no objections have been filed.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted

2 a de novo review of the case. Having carefully reviewed the entire file, the Court finds the F&Rs
3 to be supported by the record and by proper analysis. The original complaint filed in Case No.
4 1:15-cv-00763 LJO SAB is therefore DISMISSED WITH LEAVE TO AMEND AS TO THE
5 EIGTH AMENDMENT AND DOUBLE JEOPARDY CLAIMS, BUT WITHOUT LEAVE
6 TO AMEND AS TO HIS CLAIM CONCERNING POST RELEASE SUPERVISION.
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2. Complaint filed in Case No. No. 1:15-cv-00764-AWI-GSA.
As mentioned above, on July 2, 2015, this Court entered an order consolidating Townsel

9 v. Madera County Behavioral Health Services, No. 1:15-cv-00764-AWI-GSA, with this action.
10 (ECF No. 4.) Accordingly, this Court now has jurisdiction to address the Complaint filed in Case
11 No. 1:15-cv-00764-AWI-GSA.
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Pursuant to 28 U.S.C. § 1915(e)(2), the Court must dismiss a case if at any time the Court

13 determines that the complaint fails to state a claim upon which relief may be granted. In
14 determining whether a complaint fails to state a claim, the Court uses the same pleading standard
15 used under Federal Rule of Civil Procedure 8(a). A complaint must contain “a short and plain
16 statement of the claim showing that the pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2).
17 Accordingly, the Court shall screen the complaint filed in the consolidated case.
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Plaintiff brings the action against Mark L. Duarte alleging a violation of the Eighth

19 Amendment because Mr. Duarte stated that Plaintiff had unstable psychotic markers due to not
20 being on his psychiatric medications from June through August of 2013. Townsel v. Madera
21 County Behavioral Health Services, No. 1:15-cv-00764-AWI-GSA, ECF No. 1.

Plaintiff’s

22 probation officer reported that Plaintiff had not reported to the Probation Department during this
23 same period, was not attending his mental health counseling, his whereabouts were unknown and
24 Plaintiff was a danger to the community. Plaintiff was referred for a violation of probation on
25 August 28, 2013. On November 18, 2013, Plaintiff was seen by the Madera County Department
26 of Corrections Mental Health Nurse who reported that Plaintiff requested no psychiatric
27 medication for his schizophrenia, and found that he was not suicidal and no psychotic markers
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The Eighth Amendment protects prisoners from inhumane methods of punishment and

2 from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir.
3 2006). To constitute cruel and unusual punishment in violation of the Eighth Amendment,
4 conditions must involve “the wanton and unnecessary infliction of pain.” Rhodes v. Chapman,
5 452 U.S. 337, 347 (1981). Plaintiff fails to allege any facts from which the Court can infer that
6 Mr. Duarte violated the Eighth Amendment by reporting his psychiatric findings regarding
7 Plaintiff. Plaintiff fails to state a claim against Mr. Duarte and the complaint filed originally in
8 Case No. No. 1:15-cv-00764-AWI-GSA is DISMISSED WITH LEAVE TO AMEND.
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3. Leave to Amend.
Plaintiff shall file a single amended complaint raising claims he originally raised in the

11 two separate complaints addressed above. Plaintiff is advised that his amended complaint must
12 include sufficient factual allegations against each named defendant to link the individual
13 defendant to the acts or failures to act that he asserts violated his federal rights. “[A] complaint
14 must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible
15 on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint stops short of the line
16 between probability and the possibility of relief where the facts pled are merely consistent with a
17 defendant’s liability. Id. “[W]here the well-pleaded facts do not permit the court to infer more
18 than the mere possibility of misconduct,” the complaint has not shown that the plaintiff is
19 entitled to relief. Id.
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Further, while the court is to accept all “well pleaded factual allegations” in the complaint

21 as true, Iqbal, 556 U.S. at 679, it is not bound to accept as true labels, conclusions, formulaic
22 recitations of the elements of a cause of action or legal conclusions couched as factual
23 allegations, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

In his amended

24 complaint Plaintiff must include sufficient factual content for the court to draw the reasonable
25 inference that the defendant is liable for the alleged misconduct. Iqbal, 556 U.S. at 678.
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In his amended complaint, Plaintiff shall state as briefly as possible the facts of his case,

27 describing how each defendant is involved. Plaintiff shall separate his claims, so that it is clear
28 what his claims are and who the defendants involved are. Further, for each claim, Plaintiff shall

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1 clearly and succinctly set forth the facts to state the acts or failure to act by each Defendant that
2 led to a knowing violation of Plaintiff’s federal rights.
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Accordingly, IT IS HEREBY ORDERED that:

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1.

With regard to the complaint filed in Case No. 1:15-cv-00763-LJO-SAB (ECF

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No. 1, filed May 19, 2015)

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A.

The F&Rs filed May 27, 2015 are ADOPTED IN FULL;

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B.

Plaintiff’s claim that he has been sentenced to a period of post release
supervision is DISMISSED WITHOUT LEAVE TO AMEND;

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C.

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DISMISSED WITH LEAVE TO AMEND.

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Plaintiff’s Eighth Amendment and double jeopardy claims are

2.

With regard to the Complaint filed originally in Case No. 1:15-cv-00764-AWI-

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GSA, ECF No. 1 (filed May 19, 2015), Plaintiff’s claims are DISMISSED

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WITH LEAVE TO AMEND.

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4.

Within thirty (30) days from the date of service of this order, Plaintiff shall file a

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single amended complaint addressing any claims for which leave to amend has

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been granted. Any such complaint should be filed in case no. 1:15-cv-00763-LJO-

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SAB ONLY.

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6.

Failure to file an amended complaint in compliance with this order will result in
this action being dismissed for failure to state a claim.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill

July 8, 2015

UNITED STATES DISTRICT JUDGE
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