(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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 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 17 18 19 Plaintiff is a state prisoner proceeding without counsel in this civil rights action under 42 20 U.S.C. § 1983. On March 2, 2020, the court screened plaintiff’s first amended complaint and 21 found that he failed to state a claim. ECF No.16. Plaintiff filed a second amended complaint on 22 March 18, 2020. ECF No. 17. Plaintiff’s second amended complaint, like his first amended 23 complaint, fails to state a claim. 24 Section 1983 allows a private citizen to sue for the deprivation of a right secured by 25 federal law. See 42 U.S.C. § 1983; Manuel v. City of Joliet, Ill., 137 S. Ct. 911, 916 (2017). To 26 state a claim under 42 U.S.C. § 1983, a plaintiff must (1) allege the deprivation of a right secured 27 by the U.S. Constitution and laws of the United States, and (2) show that the alleged deprivation 28 1 1 was committed by a person acting under color of state law. See West v. Atkins, 487 U.S. 42, 48 2 (1988). A person deprives another of a constitutional right, “within the meaning of § 1983, ‘if he 3 does an affirmative act, participates in another’s affirmative act, or omits to perform an act which 4 he is legally required to do that causes the deprivation of which complaint is made.’” 5 Preschooler II v. Clark Cty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting 6 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). 7 In his second amended complaint, plaintiff again makes scant, conclusory allegations 8 without factual support. See ECF No. 17. Plaintiff has not stated a claim against any defendant. 9 He claims that his supervisor, Defendant Morales, “recklessly” dropped a drawer on her own foot 10 and plaintiff’s leg. Plaintiff also claims that he should have an MRI of his leg, instead of the 11 other treatment that he has received from doctors, including an x-ray and physical therapy. 12 Plaintiff fails to provide facts supporting deliberate indifference against any defendant, including 13 information about how the course of treatment he received was “medically unacceptable under 14 the circumstances and [chosen] in conscious disregard of an excessive risk to plaintiff’s health.” 15 Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012), overruled in part on other grounds by 16 Peralta v. Dillard, 744 F.3d 1076, 1082-83 (9th Cir. 2014). Plaintiff has previously been given 17 leave to amend and detailed instructions on the legal standard. ECF No. 16. Plaintiff’s 18 allegations still do not state a claim under § 1983. Thus, further leave to amend would be futile. 19 Order 20 The clerk of court is directed to assign this case to a district judge, who will preside over 21 this case. I will remain as the magistrate judge assigned to the case. 22 Recommendations 23 I recommend that the case be dismissed for plaintiff’s failure to state a claim. I submit 24 these findings and recommendations to the U.S. district judge presiding over the case under 28 25 U.S.C. § 636(b)(1)(B) and Local Rule 304. Within thirty days of the service of the findings and 26 recommendations, the parties may file written objections to the findings and recommendations 27 with the court and serve a copy on all parties. The document containing the objections must be 28 2 1 captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The presiding 2 district judge will then review the findings and recommendations under 28 U.S.C. § 636(b)(1)(C). 3 4 IT IS SO ORDERED. 5 Dated: September 4, 2020 6 UNITED STATES MAGISTRATE JUDGE 7 8 No. 204. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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