Bettencourt v. Parks et al

Filing 35

FINDINGS and RECOMMENDATIONS Regarding Dismissal of Complaint for Failure to State a Claim, signed by Magistrate Judge Barbara A. McAuliffe on 9/19/17. Referred to Judge Drozd. Objections to F&R Due Within Fourteen Days. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GARY RAY BETTENCOURT,

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Plaintiff,

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v.
L. PARKER, et al.,

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Case No. 1:16-cv-00150-DAD-BAM (PC)
FINDINGS AND RECOMMENDATIONS
REGARDING DISMISSAL OF COMPLAINT
FOR FAILURE TO STATE A CLAIM
FOURTEEN (14) DAY DEADLINE

Defendants.

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I.

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Plaintiff Gary Ray Bettencourt (“Plaintiff”) is a state prisoner proceeding pro se and in

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Background

forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
On December 1, 2016, the Court dismissed Plaintiff’s complaint with leave to amend

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within thirty days. (ECF No. 22.) Thereafter, Plaintiff filed various motions and objections

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related to the prior screening order and status of the case. (ECF Nos. 23–25, 27.) On June 22,

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2017, before the Court ruled on Plaintiff’s motions, Plaintiff filed a motion to amend and a

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motion requesting service of summons. (ECF No. 26.)
On August 4, 2017, the Court issued an order granting Plaintiff’s motion to amend the

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complaint, and denying as moot the remaining motions. (ECF No. 28.) Plaintiff was ordered to

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file an amended complaint within thirty (30) days of the date of service of that order. (Id. at 4.)

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On August 14, 2017, Plaintiff filed a civil cover sheet, motion to proceed in forma

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pauperis, and petition for extraordinary writ. (ECF Nos. 29–31.) As it appeared that Plaintiff

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intended to file those documents with the Ninth Circuit, the Court issued an order disregarding

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the petition and civil cover sheet, and denying the motion to proceed in forma pauperis as moot.

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(ECF No. 34.)

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Currently before the Court for screening is Plaintiff’s first amended complaint, filed
September 5, 2017. (ECF No. 33.)

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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

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or 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. § 1915A(b)(1), (2); 28 U.S.C.

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§ 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 (2009) (citing Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken

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as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores,

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Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).

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

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liberally construed and to have any doubt resolved in their favor. Hebbe v. Pliler, 627 F.3d 338,

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342 (9th Cir. 2010) (citations omitted). To survive screening, Plaintiff’s claims must be facially

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plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each

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named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at 678 (quotation marks

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omitted); Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that

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a defendant acted unlawfully is not sufficient, and mere consistency with liability falls short of
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satisfying the plausibility standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572

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F.3d at 969.

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Further, under § 1983, Plaintiff must demonstrate that each defendant personally

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participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2009).

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The Ninth Circuit has held that “a person ‘subjects’ another to the deprivation of a constitutional

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right, within the meaning of section 1983, if he does an affirmative act, participates in another’s

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affirmative acts, or omits to perform an act which he is legally required to do that causes the

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deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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III.

Plaintiff’s First Amended Complaint

Plaintiff has filed a document titled “First Amended Prisoner Civil Rights Complaint,”

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which is simply an amended complaint form that refers to attached copies of Plaintiff’s original

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complaint and petition for extraordinary writ. (ECF No. 33.) Plaintiff requests that the Court

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accept his filing, as the “amended” complaint states the same claims as stated in the original

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complaint. (Id. at 3.)

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In its December 1, 2016 order, the Court clearly notified Plaintiff that his original

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complaint failed to state a cognizable claim against any of the Defendants. The Court further

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provided the legal standards for alleging a denial of medical care claim under the Eighth

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Amendment, and granted Plaintiff an opportunity to amend. (ECF No. 22.)

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Plaintiff has not complied with the Court’s order to cure the identified deficiencies in the

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original complaint. Even if the Court were to accept Plaintiff’s filing as a true first amended

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complaint, the same reasons the original complaint was dismissed would apply to the “amended”

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complaint.

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Accordingly, Plaintiff’s first amended complaint, like his original complaint, must be

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dismissed in its entirety for failing to state a claim upon which relief can be granted. Moreover,

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because Plaintiff has already been provided an opportunity to amend his claims to no avail, the

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Court finds further leave to amend would be futile. See Gonzalez v. Planned Parenthood, 759

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F.3d 1112, 1116 (9th Cir. 2014) (“Futility of amendment can, by itself, justify the denial of a

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motion for leave to amend.”) (quoting Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995)).
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To the extent Plaintiff seeks reconsideration of the Court’s December 1, 2016 screening

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order, that request should be denied. Plaintiff has presented no grounds for relief other than to

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argue that the amended complaint states the same claims as the original complaint. Moreover, the

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Plaintiff has already sought and been granted leave to amend since the screening order was

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issued, mooting any objections to that order.

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IV.

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For the above reasons, Plaintiff’s amended complaint fails state a claim upon which relief

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may be granted under § 1983. Despite being provided with the relevant legal standards, Plaintiff

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has been unable to the cure the deficiencies in his complaint and further leave to amend is not

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Conclusion and Recommendations

warranted. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).
Accordingly, it is HEREBY RECOMMENDED that this action be dismissed for failure to
state a cognizable claim upon which relief may be granted under § 1983.
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 fourteen

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(14) 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 result in the waiver of the “right to challenge the magistrate’s factual

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findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v.

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Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

/s/ Barbara

September 19, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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