Battiste v. Velasquez

Filing 9

ORDER signed by Magistrate Judge Dale A. Drozd on 12/05/11 ordering this action is dismissed for plaintiff's failure to state a cognizable claim. CASE CLOSED. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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EDWARD ANTONIO BATTISTE,

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Plaintiff,

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vs.

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No. CIV S-10-2032 DAD P

B. VELASQUEZ,

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Defendant.

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ORDER
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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil

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rights action pursuant to 42 U.S.C. § 1983. Plaintiff has consented to Magistrate Judge

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jurisdiction over this action for all purposes pursuant to 28 U.S.C. § 636(c). See Doc. No. 4.

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Before the court is plaintiff’s amended complaint.

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In his amended complaint, plaintiff alleges that defendant correctional officer

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Velasquez made false statements about being assaulted by plaintiff which resulted in plaintiff

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being placed in administrative segregation. (Doc. No. 8 at 3.) Defendant Velasquez is a

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correctional officer at Deuel Vocational Institution and is the sole defendant named in this action.

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Plaintiff contends that due to the “foul conditions” while confined in administrative segregation,

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he suffered mentally and physically for a period of four months. (Id. at 3-4.) Plaintiff seeks two

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million dollars in damages for “the lasting effects of what the officers [sic] lie’s [sic] led to[.]”

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(Id. at 3.)

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In the court’s order dismissing plaintiff’s original complaint and granting him

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leave to amend, plaintiff was advised of the court’s screening requirement. (Doc. No. 5 at 2-3.)

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This included warning that the court was required to dismiss a complaint if the plaintiff has failed

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to state a claim upon which relief may be granted. (Id. at 2.) Plaintiff was informed that a civil

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rights action does not provide him an opportunity to re-try his prison disciplinary hearing or to

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show that the disciplinary charges brought against him were in fact false. (Id. at 4.) Because

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plaintiff alleged in his complaint that he lost good time credits as a result of his disciplinary

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conviction, he was advised that under the decision in Edwards v. Balisok, 520 U.S. 641 (1997), a

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civil rights claim that would imply the invalidity of his prison disciplinary action was barred

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unless that disciplinary conviction had been reversed, expunged or invalidated. (Id.) Lastly,

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plaintiff was provided with the legal standards governing an Eighth Amendment claim and was

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informed that as to his claim that defendant Velasquez subjected him to cruel and unusual

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punishment, he would be required to provide additional factual allegations showing the

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defendant’s involvement in plaintiff’s placement and retention in administrative segregation.

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Upon review of the amended complaint, the court finds that plaintiff has again

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failed to set forth sufficient factual allegations showing defendant Velasquez’s involvement in

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the alleged violation of plaintiff’s constitutional rights. The Civil Rights Act under which this

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action was filed provides as follows:

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Every person who, under color of [state law] . . . subjects, or causes
to be subjected, any citizen of the United States . . . to the
deprivation of any rights, privileges, or immunities secured by the
Constitution . . . shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for redress.

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42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the

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actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See

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Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362
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(1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the

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meaning of § 1983, if he does an affirmative act, participates in another’s affirmative acts or

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omits to perform an act which he is legally required to do that causes the deprivation of which

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

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Here, there are no allegations in plaintiff’s amended complaint of any

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involvement by defendant Velasquez in plaintiff’s placement in administrative segregation.

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There is also no allegation that defendant was on the classification committee that ordered

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plaintiff’s placement in administrative segregation or that defendant Velasquez possessed the

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authority to decide where plaintiff would be housed. In addition, the amended complaint fails to

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state a cognizable Eighth Amendment claim because there are no allegations that defendant

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Velasquez acted with deliberate indifference to plaintiff’s health or well being with respect to the

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conditions of plaintiff’s confinement. See Farmer v. Brennan, 511 U.S. 825, 832 (1994).

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The court has carefully considered whether plaintiff could file a second amended

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complaint that states a cognizable federal claim that would not be subject to dismissal. “Valid

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reasons for denying leave to amend include undue delay, bad faith, prejudice, and futility.”

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California Architectural Bldg. Prod. v. Franciscan Ceramics, 818 F.2d 1466, 1472 (9th Cir.

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1988). See also Klamath-Lake Pharm. Ass’n v. Klamath Med. Serv. Bureau, 701 F.2d 1276,

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1293 (9th Cir. 1983) (holding that, while leave to amend shall be freely given, the court does not

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have to allow futile amendments). It appears that granting further leave to amend would be futile

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in this instance given the nature of plaintiff’s complaint, the defects noted above and plaintiff’s

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inability to cure those defects in his amended complaint after previously being granted leave to

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amend.

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Accordingly, IT IS HEREBY ORDERED that this action is dismissed for

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plaintiff’s failure to state a cognizable claim. See 28 U.S.C. § 1915A(b)(1) & (2).

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DATED: December 5, 2011.

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DAD:4
bat2032.fsc

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