Williams v. CA Dept of Corrections et al

Filing 15

ORDER signed by Circuit Judge N. Randy Smith on 12/15/09 ORDERING pltf's second amended complaint 10 is DISMISSED; pltf is granted 30 days from the date of service of this order to file a third amended complaint; the Clerk is directed to send pltf the Court's form for filing a civil rights action; and pltf's 7/10/08 request for appointment of counsel 10 is DENIED. (Carlos, K)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 CLIFFORD J. WILLIAMS, vs. CALIFORNIA DEPARTMENT OF CORRECTIONS No. 2:07-CV-02726-NRS IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

ORDER P lain tiff is a state prisoner proceeding pro se and in forma pauperis in this ac tio n filed pursuant to 42 U.S.C. § 1983. By order filed June 11, 2008, Plaintiff's co m p lain t was dismissed with leave to file an amended complaint. On July 10, 2 0 0 8 , Plaintiff filed a second amended complaint. Because Plaintiff has not am en d ed his complaint to sufficiently address the problems identified by the June 1 1 , 2008 order, the Court dismisses Plaintiff's second amended complaint without p r e ju d ic e . U n d er 28 U.S.C. § 1915A(a), the Court must screen complaints brought by p riso n ers seeking relief against a governmental entity or an officer or employee of a governmental entity. The Court will dismiss a complaint, or portion thereof, if th e prisoner has raised claims that are, among other things, legally "frivolous or m alicio u s" or fail to state a claim upon which relief may be granted. 28 U.S.C. §
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1 9 1 5 A (b )(1 )& (2 ). "[A] complaint . . . is frivolous where it lacks an arguable basis either in law o r in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). "[The Court's] inquiry is whether any of Jackson's claims has an arguable basis in law and fact." Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989), superseded by statute on other g ro u n d s as stated in Lopez v. Smith, 203 F.3d 1122, 1130­31 (9th Cir. 2000). However, because the Court is only considering Plaintiff's pleadings at this stage o f litigation, the Court's order is necessarily dictated by Rule 8 of the Federal R u les of Civil Procedure. Rule 8(a)(2) requires "a short and plain statement of the claim ," Fed. R. Civ. P. 8(a)(2), "enough to raise a right to relief above the s p e cu la tiv e level," Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In rev iew in g the Plaintiff's pleadings, the Court accepts as true the allegations in his co m p lain t and construes the pleading in the light most favorable to the Plaintiff. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). "Accordingly, a pleading must g iv e fair notice [to defendants] and state the elements of the claim plainly and s u c cin c tly ." Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1 9 8 4 ) (internal quotation marks, alterations, and citation omitted). Plaintiff has now filed a complaint and two amended complaints. Since the o u ts et, Plaintiff has alleged that his Eighth and Fourteenth Amendment rights were v io la te d when the prison staff: (1) slandered him by starting rumors that he was h o m o sex u al; (2) denied him medical care by not giving him antibiotics and "trays;" (3 ) provided him "tainted food;" (4) made "plots and staff assaults;" and (5) co m m itted sexual misconduct by starting rumors that he was "gay" or "h o m o s e x u a l." Both Plaintiff's complaint and first amended complaint were dismissed as b e in g too vague and conclusory. In the order denying Plaintiff's first amended
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co m p lain t, the Court noted "plaintiff . . . failed to adequately allege specific in s ta n c es of the claimed constitutional violations, including when they took place, h o w they took place, and specifically who was involved in them." Specifically, the C o u rt noted Plaintiff's first amended complaint failed to "give fair notice to the d efen d an ts" and should have "allege[d] facts that support the elements of the claim p lain ly and succinctly." Because Plaintiff has not addressed these concerns, the C o u rt dismisses Plaintiff's second amended complaint. As to Plaintiff's claim that he was slandered by staff's rumors that he was h o m o s e x u a l, Plaintiff makes virtually the same allegation in his second amended c o m p la in t that he did in his first. He states nothing more than that rumors were s ta rte d against him, which led to "divorce, [a]ttempted [m]urder, [and] [b]attery." Plaintiff does not state who committed the slander, how exactly the slander started o r led to the alleged abuse, or even when exactly the slander took place. Moreover, a claim of defamation will not support a § 1983 claim unless accompanied by "s o m e more tangible interests." Paul v. Davis, 424 U.S. 693, 701 (1976). Certainly, battery, divorce, and attempted murder might constitute a "more tangible in terest," however, Plaintiff has not pleaded whether he suffered those things or h o w the alleged defamation even lead to them. In sum, Plaintiff made only vague an d conclusory statements in support of this claim. As to Plaintiff's claim that he was denied medical care, he again makes v irtu ally the same claim in his second amended complaint as he did in his first. Plaintiff has provided no facts to support this claim, other than to state, in co n clu so ry fashion, that he was denied medical care and lost weight. As to Plaintiff's claim that he was provided "tainted food," Plaintiff again h as restated his claim in the first amended complaint. He has provided no facts a b o u t this claim. He has merely stated that he was given "tainted food," which led
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to weight loss. The pleading rules require more than such bare, conclusory s ta te m e n ts . As to Plaintiff's claim that the staff made plots and assaults on him, Plaintiff says nothing more than that assaults took place "to and from the shower; while in h an d cu ffs." He does not allege who made the plots, the nature of the plots, the tim in g of the plots, or anything else. In sum, Plaintiff's pleadings have not given D efen d an ts fair notice of the facts and claims being alleged against them. As to the claim that the staff committed sexual misconduct, Plaintiff has also f aile d to properly plead facts sufficient to sustain this claim. Admittedly, Plaintiff, in contrast with his first amended complaint, did provide the names of those startin g rumors against him and the dates on which they did it. However, this is still not enough. Plaintiff has provided nothing more than their names and dates. He has not alleged what they said or even how they committed "sexual m is co n d u c t." Plaintiff has alleged only that certain individuals started rumors ab o u t him that he was gay and homosexual. However, this is merely a restatement o f Plaintiff's first claim. He has not pleaded enough facts to support this claim. Nor has he pleaded a more tangible loss, sufficient to make his defamation claim a co g n izab le § 1983 claim. In sum, Plaintiff's pleadings fail to give Defendants fair notice of the claims b ein g brought against them. Finally, Plaintiff's request for appointment of counsel also fails, because th ere are no exceptional circumstances to justify the Court's appointment of one. See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). If Plaintiff chooses to file a third amended complaint, the Court refers him to its Order dated June 11, 2008. In that order, the Court provided helpful guidance o n pleading a successful § 1983 action, which Plaintiff seemingly ignored. The
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C o u r t, therefore, refers Plaintiff back to the June 11, 2008 order.

A cco rd in g ly, IT IS HEREBY ORDERED that: 1 . Plaintiff's July 10, 2008 second amended complaint is dismissed; 2 . Plaintiff is granted thirty days from the date of service of this order to file a third amended complaint that complies with the requirements o f the Civil Rights Act, the Federal Rules of Civil Procedure, and the L o cal Rules of Practice; the third amended complaint must bear the d o c k e t number assigned to this case and must be labeled "Third A m en d ed Complaint;" failure to file a third amended complaint in acco rd an ce with this order will result in a recommendation that this a ctio n be dismissed with prejudice; 3 . The Clerk of the Court is directed to send Plaintiff the Court's form fo r filing a civil rights action; and 4. Plaintiff's July 10, 2008 request for appointment of counsel is d e n ie d .

D A T E D : December 15, 2009

Honorable N. Randy Smith N in th Circuit Court of Appeals Judge

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