Williams v. Lozano et al
Filing
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ORDER DENYING Motion to Appoint Counsel 22 ; ORDER DIRECTING Clerk of Court to Randomly Assign a District Judge - CASE ASSIGNED to District Judge Anthony W. Ishii and Magistrate Judge Barbara A. McAuliffe. New Case No. 1:15-cv-01250 AWI BAM (PC); FINDINGS AND RECOMMENDATIONS Regarding Dismissal for Failure to State a Cognizable Claim for Relief 23 , signed by Magistrate Judge Barbara A. McAuliffe on 1/24/2018: 14-Day Deadline. (Hellings, J)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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JOHN ERIC WILLIAMS,
also known as Michael J. Coleman,
Plaintiff,
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v.
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L. LOZANO, et al.,
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Defendants.
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1:15-cv-01250-BAM (PC)
ORDER DENYING MOTION TO
APPOINT COUNSEL
(ECF No. 22)
ORDER DIRECTING CLERK OF
COURT TO RANDOMLY ASSIGN A
DISTRICT JUDGE
FINDINGS AND RECOMMENDATIONS
REGARDING DISMISSAL FOR
FAILURE TO STATE A COGNIZABLE
CLAIM FOR RELIEF
(ECF No. 22)
FOURTEEN (14) DAY DEADLINE
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Plaintiff John Eric Williams, aka Michael J. Coleman (“Plaintiff”), is a state prisoner
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proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
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On December 1, 2017, the Court screened Plaintiff’s first amended complaint and granted him
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leave to amend only with respect to claims arising in June 2015. (ECF No. 17.) On January 18,
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2018, Plaintiff filed a motion for the appointment of counsel, along with his second amended
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complaint. (ECF Nos. 22 and 23.)
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I.
Motion to Appoint Counsel
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On January 18, 2018, Plaintiff filed an “Inmate Request for Assistance from the Court”
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form. Plaintiff claims that he has a disability under the Americans with Disabilities Act that
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makes it hard for him to read, write or understand material regarding his case. He therefore
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requests a lawyer. (ECF No. 22.)
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In addition to the form, Plaintiff also filed a motion for appointment of counsel, which
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was incorporated into his second amended complaint. (ECF No. 23 at pp. 16-20.) The motion
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and supporting exhibits appear to be a more complete copy of Plaintiff’s prior motion for the
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appointment of counsel filed on January 5, 2018, which was denied by the Court on January 11,
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2018. (ECF Nos. 18 and 19.) Plaintiff again explains that he is unable to afford counsel, he is
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mentally ill and has been placed in mental health crisis beds and mental hospitals, and his
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imprisonment limits his ability to litigate. Plaintiff states that his case presents meritorious
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claims, as shown by the Court’s screening order that allows him to proceed. Plaintiff argues that
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he might suffer retaliation from prison officials for investigating his claim. He further asserts that
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the case may be strongly disputed by defendants, and require depositions and evidence better
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accessed by counsel.
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As Plaintiff has been informed, he does not have a constitutional right to appointed
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counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on
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other grounds, 154 F.3d 952, 954 n.1 (9th Cir. 1998), and the court cannot require an attorney to
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represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. U.S. Dist. Court for the S. Dist.
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of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the court may
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request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at
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1525.
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Without a reasonable method of securing and compensating counsel, the Court will seek
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volunteer counsel only in the most serious and exceptional cases. In determining whether
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“exceptional circumstances exist, a district court must evaluate both the likelihood of success on
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the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the
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complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted).
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The Court has considered Plaintiff’s renewed motion for the appointment of counsel, but
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does not find the required exceptional circumstances. Even if it is assumed that Plaintiff is not
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well versed in the law and that he has made serious allegations which, if proved, would entitle
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him to relief, his case is not exceptional. This Court is faced with similar cases filed by prisoners
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proceeding pro se and suffering from physical and mental health conditions almost daily. These
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prisoners also must conduct legal research and prosecute claims without the assistance of
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counsel. Furthermore, as discussed below, given Plaintiff’s failure to state a claim, the Court
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cannot find any likelihood of success on the merits. Accordingly, Plaintiff’s motion to appoint
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counsel is HEREBY DENIED. The Court now turns to the screening of Plaintiff’s second
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amended complaint.
Findings and Recommendations
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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 and/or against an officer or employee of a governmental entity. 28 U.S.C. §
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1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous or
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malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary
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relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(A)(b)(1), (2); 28
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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, 678, 129 S.Ct. 1937,
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1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65
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(2007)). While a plaintiff’s allegations are taken as true, courts “are not required to indulge
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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).
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To survive screening, Plaintiff’s claims must be facially plausible, which requires
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sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable
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for the misconduct alleged. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949 (quotation marks omitted);
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Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility
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that a defendant acted unlawfully is not sufficient, and mere consistency with liability falls short
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of satisfying the plausibility standard. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949 (quotation marks
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omitted); Moss, 572 F.3d at 969. Courts are required to liberally construe pro se prisoner
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complaints. Estelle v. Gamble, 429 U.S. 97, 106, 97 S. Ct. 285, 292 (1976).
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III.
Plaintiff’s Factual Allegations
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Plaintiff is currently housed at California State Prison, Lancaster, in Lancaster,
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California. The events in the amended complaint are alleged to have occurred while Plaintiff
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was housed at Wasco State Prison. Plaintiff names the following Defendants: (1) Department of
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Corrections; (2) Holland, Mental Health Clinician at Wasco State Prison; and (3) unidentified
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defendants “[t]o be named at or with Discovery.” (ECF No. 23 at p. 2.)
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In his amended complaint, which totals 100 pages inclusive of exhibits, Plaintiff alleges
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as follows: The names of the prison staff that had an active part in violating his civil rights are
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documented on a 602 that an appeals coordinator might have at Wasco State Prison. Defendant
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Holland was Plaintiff’s clinician at that time and Plaintiff gave him most of that information.
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When Plaintiff went to the Correctional Officers and Program Office, the Sergeant and
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Correctional Officer that Plaintiff talked to on the day he was moved from 3 to 4 building instead
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of Ad-Seg will be easy to identify because the shift will be documented in the computer.
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Plaintiff alleges that prison staff ignored his pleas for safety and he did everything the prison
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asked him to say and do to receive protection, but his pleas were ignored. Plaintiff alleges that
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he was placed in a more dangerous situation instead of being placed in Ad-Seg and he suffered
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every day mentally and emotionally until he was finally assaulted and hospitalized.
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After Plaintiff received a threatening note and was approached and threatened, he was
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moved to the building next door instead of being placed in Ad-Seg. Unknown persons wanted
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Plaintiff even more because their house was searched, so they knew that Plaintiff told on them.
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That was the reason Plaintiff was threatened in the first place.
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When Plaintiff was moved from 3 to 4 building, one of Plaintiff’s enemies followed him
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to 4 building. Finally, with the help from a clinician, Plaintiff was moved to 2 building on the
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same yard instead of Ad-Seg. These kinds of moves continued after Plaintiff was supposed to be
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moved off of the yard after the first threat. Plaintiff alleges that, two months prior, he was
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stabbed and assaulted. During the entire time, Plaintiff was a mental patient and had just come
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out of a crisis bed. It was obvious that he was moved for safety issues because he was a mental
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health patient in a mental health building and was moved to a non-mental health building.
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Plaintiff alleges that he filed emergency 602s with the staff names of who he told about
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the threat and the Sergeant that had pulled Plaintiff into his office. Plaintiff gave the Sergeant
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the threatening note and the names of the inmates threatening him. Plaintiff asserts that he was
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supposed to be placed in protected custody, but was instead placed in another building on the
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same yard. Plaintiff also went to Defendant Holland and they tried every way possible to get
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Plaintiff into protected custody before he was assaulted. Plaintiff also told the unit classification
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and Idtt committee.
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Plaintiff further alleges that one threat came from an incident that had just happened at
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the Fresno County Jail. Plaintiff told the Sergeant and Correctional Officer about the threat. The
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Sergeant and the Correctional Officer interviewed Plaintiff and would have to move him from a
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mental health building to a non-mental health building. Plaintiff asserts that he and Inmate Wade
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were separated as cellies the Fresno County Jail because of an argument or fight.
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Plaintiff forwards claims for the violation of his Eighth and Fourteenth Amendment
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rights. As relief, he seeks an out of state transfer and parole, mental health with job placement,
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placement in a long-term DSH program until he is transferred out of state, appointment of
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counsel, compensatory and punitive damages and a single cell.
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III.
Discussion
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A.
Federal Rule of Civil Procedure 8
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Pursuant to Federal Rule of Civil Procedure 8, a complaint must contain “a short and
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plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a).
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As noted above, detailed factual allegations are not required, but “[t]hreadbare recitals of the
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elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal,
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556 U.S. at 678 (citation omitted). Plaintiff must set forth “sufficient factual matter, accepted as
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true, to ‘state a claim to relief that is plausible on its face.’ ” Iqbal, 556 U.S. at 678 (quoting
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Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are
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not. Id.; see also Twombly, 550 U.S. at 556–557; Moss, 572 F.3d at 969.
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As with Plaintiff’s prior complaints, Plaintiff’s second amended complaint is neither
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short nor plain. It is difficult to read and understand, lacking dates, names and other necessary
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factual information, including what happened, when it happened and who was involved. The
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Court will not expend its otherwise taxed resources to sort through the nearly 80 pages of
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exhibits attached to the amended complaint, the majority of which are unrelated to the
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allegations in this action, in order to find a colorable claim for relief. Despite being provided
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with the relevant pleading standard and a final opportunity to amend his complaint, Plaintiff has
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been unable to cure this deficiency.
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B.
California Department of Corrections and Rehabilitation
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Plaintiff seeks to bring claims against the California Department of Corrections and
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Rehabilitation (“CDCR”). However, the CDCR is not a proper party to this action.
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Eleventh Amendment prohibits federal courts from hearing a Section 1983 lawsuit in which
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damages or injunctive relief is sought against state agencies (such as the CDCR) and individual
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prisons, absent “a waiver by the state or a valid congressional override . . . .” Dittman v.
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California, 191 F.3d 1020, 1025 (9th Cir. 1999). “The Eleventh Amendment bars suits which
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seek either damages or injunctive relief against a state, ‘an arm of the state,’ its instrumentalities,
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or its agencies.” See Fireman’s Fund Ins. Co. v. City of Lodi, Cal., 302 F.3d 928, 957 n. 28 (9th
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Cir. 2002) (internal quotation and citations omitted), cert. denied, 538 U.S. 961 (2003). “The
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State of California has not waived its Eleventh Amendment immunity with respect to claims
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brought under § 1983 in federal court . . . .” Dittman, 191 F.3d at 1025–26 (citing Atascadero
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State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985)); see also Brown v. Cal. Dep’t. of Corr., 554
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F.3d 747, 752 (9th Cir. 2009).
The
Eighth Amendment – Deliberate Indifference to Safety & Failure to Protect
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C.
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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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2005). Prison officials must provide prisoners with medical care and personal safety and must
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take reasonable measures to guarantee the safety of the inmates. Farmer v. Brennan, 511 U.S.
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825, 832-33 (11994) (internal citations and quotations omitted). In a “failure-to-protect” Eighth
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Amendment violation claim, an inmate must show that a prison official’s act or omission (1) is
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objectively, sufficiently serious, and (2) the official is deliberately indifferent to inmate’s health
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or safety. Id. at 834; Hearns v. Terhune, 413 F.3d 1036, 1040-41 (9th Cir. 2005). The failure of
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prison officials to protect inmates from attacks by other inmates may rise to the level of an
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Eighth Amendment violation where prison officials know of and disregard a substantial risk of
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serious harm to the plaintiff. E.g., Farmer, 522 U.S. at 847; Hearns, 413 F.3d at 1040.
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Plaintiff’s second amended complaint fails to state a cognizable failure to protect claim.
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Plaintiff’s allegations are too vague and conclusory to state a claim. Even without properly
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naming the defendants, the amended complaint omits critical factual information regarding what
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happened and how prison officials reportedly failed to protect him from some unspecified attack.
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More importantly, it appears from Plaintiff’s allegations that prison officials repeatedly moved
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him to different buildings in response to his expressed concerns. Despite being provided with
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the relevant legal standard, Plaintiff has been unable to cure the deficiencies in this claim.
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D. Fourteenth Amendment – Equal Protection
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The Equal Protection Clause requires that persons who are similarly situated be treated
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alike. City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 439 (1985); Shakur v.
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Schriro, 514 F.3d 878, 891 (9th Cir. 2008). An equal protection claim may be established by
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showing that Defendants intentionally discriminated against Plaintiff based on his membership in
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a protected class, Comm. Concerning Cmty. Improvement v. City of Modesto, 583 F.3d 690,
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702–03 (9th Cir. 2009); Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003), Lee v. City of
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Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001), or that similarly situated individuals were
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intentionally treated differently, Engquist v. Oregon Dep’t of Agric., 553 U.S. 591, 601–02
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(2008); Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); Lazy Y Ranch Ltd. v. Behrens,
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546 F.3d 580, 592 (9th Cir. 2008); N. Pacifica LLC v. City of Pacifica, 526 F.3d 478, 486 (9th
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Cir. 2008).
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Plaintiff fails to sufficiently allege facts demonstrating that he is a member of a protected
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class or that he was intentionally treated differently from other similarly situated inmates. Given
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the nature of the underlying action, it does not appear that Plaintiff could state a colorable Equal
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Protection claim even if additional leave to amend were granted.
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E. Fourteenth Amendment – Due Process
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Plaintiff makes several allegations about his 602 appeal process and no timely responses,
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which the Court presumes is the basis of Plaintiff’s due process claim. However, to the extent
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Plaintiff seeks to allege a claim for failure to process his grievances, he may not do so. Prison
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officials are not required under federal law to process inmate grievances in a specific way or to
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respond to them in a favorable manner. Prisoners do not have a “separate constitutional
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entitlement to a specific prison grievance procedure.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th
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Cir. 2003) (citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988)). Even the non-existence
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of, or the failure of prison officials to properly implement, an administrative appeals process
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within the prison system does not raise constitutional concerns. Mann, 855 F.2d at 640; see also
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Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993). At all times plaintiff retained the option
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of commencing a civil action on a specific substantive claim that he had attempted to exhaust
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through the prison’s grievance system but for which he contends administrative remedies were
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effectively unavailable. Sapp v. Kimbrell, 623 F.3d 813, 822-23 (9th Cir. 2010) (administrative
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remedies plainly unavailable if grievance was screened out for improper reasons).
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F. Injunctive Relief
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Plaintiff is no longer housed at Wasco State Prison, where he alleges the incident
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occurred. Therefore, any injunctive relief he seeks against officials at Wasco is moot. See
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Andrews v. Cervantes, 493 F.3d 1047, 1053 n.5 (9th Cir. 2007) (prisoner’s claims for injunctive
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relief generally become moot upon transfer) (citing Johnson v. Moore, 948 F.2d 517, 519 (9th
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Cir. 1991) (per curiam) (holding claims for injunctive relief “relating to [a prison’s] policies are
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moot” when the prisoner has been moved and “he has demonstrated no reasonable expectation of
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returning to [the prison]”)).
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IV.
Conclusion and Recommendation
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Plaintiff’s complaint fails to comply with Federal Rule of Civil Procedure 8 and fails to
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state a cognizable claim for relief. Despite multiple opportunities to amend, Plaintiff has been
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unable to cure the deficiencies in his complaint, and further leave to amend is not warranted.
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Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).
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Accordingly, the Court HEREBY ORDERS the Clerk of the Court to randomly assign a
district judge to this action.
Further, the Court HEREBY RECOMMENDS that this action be dismissed for failure to
state a claim upon which relief may be granted.
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These Findings and Recommendation 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
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fourteen (14) days after being served with these Findings and Recommendation, Plaintiff may
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file written objections with the Court. The document should be captioned “Objections to
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Magistrate Judge’s Findings and Recommendation.” Plaintiff is advised that failure to file
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objections within the specified time may result in the waiver of the “right to challenge the
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magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir.
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2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.
Dated:
/s/ Barbara
January 24, 2018
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A. McAuliffe
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UNITED STATES MAGISTRATE JUDGE
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