(PC) Bowden v. California Department of Corrections et al

Filing 20

ORDER DIRECTING Clerk of Court to Assign Case to District Judge; SCREENING ORDER; FINDINGS and RECOMMENDATIONS that Case be Dismissed for Failure to State a Claim re 17 Amended Prisoner Civil Rights Complaint, signed by Magistrate Judge Jeremy D. Peterson on 9/4/2020. Referred to Judge Ishii; Objections to F&R due within 30 days. (Rivera, O)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Case No. 1:19-cv-01769-JDP

SHANE MONROE BOWDEN,

SCREENING ORDER

Plaintiff,

ECF No. 10

v.

FINDINGS AND RECOMMENDATIONS
THAT CASE BE DISMISSED FOR FAILURE
TO STATE A CLAIM

CALIFORNIA DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.

OBJECTIONS DUE IN THIRTY DAYS
ORDER DIRECTING CLERK OF COURT TO
ASSIGN CASE TO DISTRICT JUDGE

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Plaintiff is a state prisoner proceeding without counsel in this civil rights action under 42

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U.S.C. § 1983. On March 2, 2020, the court screened plaintiff’s first amended complaint and

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found that he failed to state a claim. ECF No.16. Plaintiff filed a second amended complaint on

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March 18, 2020. ECF No. 17. Plaintiff’s second amended complaint, like his first amended

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complaint, fails to state a claim.

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Section 1983 allows a private citizen to sue for the deprivation of a right secured by

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federal law. See 42 U.S.C. § 1983; Manuel v. City of Joliet, Ill., 137 S. Ct. 911, 916 (2017). To

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state a claim under 42 U.S.C. § 1983, a plaintiff must (1) allege the deprivation of a right secured

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by the U.S. Constitution and laws of the United States, and (2) show that the alleged deprivation

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was committed by a person acting under color of state law. See West v. Atkins, 487 U.S. 42, 48

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(1988). A person deprives another of a constitutional right, “within the meaning of § 1983, ‘if he

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does an affirmative act, participates in another’s affirmative act, or omits to perform an act which

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he is legally required to do that causes the deprivation of which complaint is made.’”

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Preschooler II v. Clark Cty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting

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Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)).

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In his second amended complaint, plaintiff again makes scant, conclusory allegations

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without factual support. See ECF No. 17. Plaintiff has not stated a claim against any defendant.

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He claims that his supervisor, Defendant Morales, “recklessly” dropped a drawer on her own foot

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and plaintiff’s leg. Plaintiff also claims that he should have an MRI of his leg, instead of the

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other treatment that he has received from doctors, including an x-ray and physical therapy.

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Plaintiff fails to provide facts supporting deliberate indifference against any defendant, including

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information about how the course of treatment he received was “medically unacceptable under

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the circumstances and [chosen] in conscious disregard of an excessive risk to plaintiff’s health.”

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Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012), overruled in part on other grounds by

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Peralta v. Dillard, 744 F.3d 1076, 1082-83 (9th Cir. 2014). Plaintiff has previously been given

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leave to amend and detailed instructions on the legal standard. ECF No. 16. Plaintiff’s

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allegations still do not state a claim under § 1983. Thus, further leave to amend would be futile.

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Order

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The clerk of court is directed to assign this case to a district judge, who will preside over

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this case. I will remain as the magistrate judge assigned to the case.

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Recommendations

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I recommend that the case be dismissed for plaintiff’s failure to state a claim. I submit

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these findings and recommendations to the U.S. district judge presiding over the case under 28

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U.S.C. § 636(b)(1)(B) and Local Rule 304. Within thirty days of the service of the findings and

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recommendations, the parties may file written objections to the findings and recommendations

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with the court and serve a copy on all parties. The document containing the objections must be

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captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The presiding

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district judge will then review the findings and recommendations under 28 U.S.C. § 636(b)(1)(C).

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IT IS SO ORDERED.

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Dated:

September 4, 2020

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UNITED STATES MAGISTRATE JUDGE

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No. 204.

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