Watts v. Flory et al

Filing 33

ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 1/25/2013 ORDERING that service is appropriate for Tim V. Virga and Macomber; the Clerk to send plaintiff forms for service to be completed and returned withi n 30 days, along with the Notice of Submission; and RECOMMENDING that this action be dismissed with prejudice as to defendants Flory, Mini, Rios, Johnson, Masuret, Baker, Guches and Leiber; and the Clerk amend the docket to reflect that this action proceeds against defendants Virga and Macomber only. Referred to Judge Garland E. Burrell, Jr.; Objections to due within 14 days.(Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TIMOTHY WATTS,

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Plaintiff,

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vs.

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No. 2:10-cv-2688 GEB CKD P

S. FLORY, et al.,

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Defendants.

ORDER &

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FINDINGS AND RECOMMENDATIONS

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Plaintiff is a state prisoner proceeding pro se who seeks relief pursuant to 42

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U.S.C. § 1983. Before the court is plaintiff’s Second Amended Complaint (SAC) filed October

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15, 2012. (Dkt. No. 32.)

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The court is required to screen complaints brought by prisoners seeking relief

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against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised

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claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be

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granted, or that seek monetary relief from a defendant who is immune from such relief. 28

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U.S.C. § 1915A(b)(1),(2).

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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28

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(9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

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490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

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pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

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Cir. 1989); Franklin, 745 F.2d at 1227.

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A complaint must contain more than a “formulaic recitation of the elements of a

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cause of action;” it must contain factual allegations sufficient to “raise a right to relief above the

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speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965 (2007).

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“The pleading must contain something more...than...a statement of facts that merely creates a

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suspicion [of] a legally cognizable right of action.” Id., quoting 5 C. Wright & A. Miller, Federal

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Practice and Procedure 1216, pp. 235-235 (3d ed. 2004). “[A] complaint must contain sufficient

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factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft

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v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127

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S.Ct. 1955). “A claim has facial plausibility when the plaintiff pleads factual content

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that allows the court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” Id.

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In reviewing a complaint under this standard, the court must accept as true the

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allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S.

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738, 740, 96 S.Ct. 1848 (1976), construe the pleading in the light most favorable to the plaintiff,

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and resolve all doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

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Fed. R. Civ. P. 8 sets forth general rules of notice pleading in the federal courts.

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See Swierkiewicz v. Sorema, 534 U.S. 506 (2002). Complaints are required to set a forth (1) the

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grounds upon which the court’s jurisdiction rests, (2) a short and plain statement of the claim

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showing entitlement to relief; and (3) a demand for the relief plaintiff seeks. Rule 8 requires only
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“sufficient allegations to put defendants fairly on notice of the claims against them.” McKeever

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v. Block, 932 F.2d 795, 798 (9th Cir. 1991). Even if the factual elements of the cause of action

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are present, but are scattered throughout the complaint and are not organized into a “short and

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plain statement of the claim,” dismissal for failure to satisfy Rule 8(a)(2) is proper. McHenry v.

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Renne, 84 F.3d 1172, 1178 (9th Cir. 1996).

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Here, the court finds that plaintiff has partially failed to cure the defects of the

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First Amendment Complaint. Plaintiff alleges that several defendants at CSP-Sacramento

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“conspired” to have him “removed from the main line” with no legitimate correctional goal.

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(SAC, ¶ 13.) He alleges that his May 2010 grievance was “trashed” and defendants did nothing

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about it. (Id., ¶¶ 14, 16.) Plaintiff also alleges that he was subject to a retaliatory transfer. (Id., ¶

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19.) The court addressed similar allegations in its September 12, 2012 order. (Dkt. No. 31.)

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While plaintiff alleges in the SAC that defendants “took adverse action against plaintiff for filing

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grievances (602's) and other lawsuits” (SAC, ¶ 19), this conclusory allegation does not suffice to

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“raise [the] right to relief above the speculative level.” See Bell Atlantic Corp, 550 U.S. 544.

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Plaintiff has not alleged that any defendant was aware of specific protected conduct by plaintiff

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and took adverse action against him “because of” that conduct, without a legitimate purpose.

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Plaintiff also alleges that defendants had him transferred to HDSP against doctor’s

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orders, as his knee problems required a warm climate. An attached document indicates that, in

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June 2010, the Institutional Classification Committee (ICC) recommended plaintiff’s “transfer to

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an alternate Level-IV institution . . . based on staff concerns at CSP-SAC, placement score and

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CCMS level of care. This is a non-adverse transfer.” (SAC at 12.1) The named ICC members

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include defendants Warden Virga, Associate Warden Macomber, and V. Mini. (Id.) Plaintiff

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alleges that Mini was aware of plaintiff’s medical condition between 2006 and 2009, including

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that a cold climate was bad for his knees. (SAC, ¶ 12.) However, plaintiff does not allege or

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Citations to page numbers refer to numbers assigned by the court’s docketing system.
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show that Mini was responsible for HDSP being chosen as the alternate Level-IV institution.

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Plaintiff alleges that Virga and Macomber made the determination to transfer him

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to HDSP and that he informed them that the cold climate was bad for his knees. (SAC, ¶ 17; see

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id. at 18 (August 17, 2010 medical chrono stating that, due to plaintiff’s knee problems, “transfer

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to institution in warmer climate is appropriate”).) The court concludes that, for screening

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purposes, plaintiff has stated an Eighth Amendment claim against these defendants. The court

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will recommend that this action be dismissed as to all other defendants.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Service is appropriate for the following defendants: Virga and Macomber.

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2. The Clerk of the Court shall send plaintiff two USM-285 forms, one summons,
an instruction sheet and a copy of the amended complaint filed October 15, 2012.

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3. Within thirty days from the date of this order, plaintiff shall complete the
attached Notice of Submission of Documents and submit the following documents to the court:

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a. The completed Notice of Submission of Documents;

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b. One completed summons;

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c. One completed USM-285 form for each defendant listed in number 1

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above; and

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d. Three copies of the endorsed amended complaint filed October 15,

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2012.

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IT IS HEREBY RECOMMENDED THAT:

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1. This action be dismissed with prejudice as to defendants Flory, Mini, Rios,

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Johnson, Masuret, Baker, Guches, and Leiber; and

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2. The Clerk of Court amend the docket to reflect that this action proceeds against
defendants Virga and Macomber only.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen

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days after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

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objections shall be filed and served within seven days after service of the objections. The parties

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are advised that failure to file objections within the specified time may waive the right to appeal

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the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
Dated: January 25, 2013

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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watt2688.SAC

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