Zavala v. McDonald et al

Filing 13

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 06/25/12 recommending that defendant Gower be dismissed from this action. Referred to Judge Kimberly J. Mueller. Objections due within 14 days. (Plummer, M)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

JOSE B. ZAVALA,

12
13
14
15
16
17

No. 2:11-CV-2475-KJM-CMK-P

Plaintiff,
vs.

FINDINGS AND RECOMMENDATIONS

MICHAEL D. McDONALD, et al.,
Defendants.
/
Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to

18

42 U.S.C. § 1983. Pending before the court is plaintiff’s first amended complaint (Doc. 11).

19

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

20

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

21

§ 1915A(a). The court must dismiss a complaint or portion thereof if it: (1) is frivolous or

22

malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief

23

from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover,

24

the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain

25

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

26

This means that claims must be stated simply, concisely, and directly. See McHenry v. Renne,
1

1

84 F.3d 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied

2

if the complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon

3

which it rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must

4

allege with at least some degree of particularity overt acts by specific defendants which support

5

the claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is

6

impossible for the court to conduct the screening required by law when the allegations are vague

7

and conclusory.

8
9
10

Plaintiff alleges generally that his rights were violated when he was placed on
lock-down status stemming from “unsubstantiated claims of gang involvement.” Plaintiff
claims:

11

High Desert State Prison is regarded as an institution that functions
autonomously to the rest of CDCR. It is very common to hear staff at
HDSP state that, “This is High Desert, and we do what we want.” There
are numerous investigations and allegations currently against the staff here
and the Sacramento Bee has went so far as to do an investigative article
about this specific institution.

12
13
14
15

Plaintiff alleges a violation of his due process rights in connection with his placement in

16

administrative segregation without notice or an opportunity to be heard. He also alleges Eighth

17

Amendment violations arising from the conditions of his confinement in administrative

18

segregation.

19

As explained in more detail in the accompanying order, plaintiff was granted

20

leave to amend in order to allege facts to show the specific involvement of the named defendants,

21

all of whom are supervisory personnel. In the amended complaint, plaintiff failed to do so for

22

defendant Gower, as to whom there are no allegations of specific conduct. The court now

23

recommends that defendant Gower be dismissed from this action, which should proceed as

24

against defendants McDonald, Davey, Gamberg, and Vanleer only.

25

///

26

///
2

1
2

Based on the foregoing, the undersigned recommends that defendant Gower be
dismissed from this action.

3

These findings and recommendations are submitted to the United States District

4

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days

5

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

6

objections with the court. Responses to objections shall be filed within 14 days after service of

7

objections. Failure to file objections within the specified time may waive the right to appeal.

8

See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

9
10
11
12

DATED: June 25, 2012
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

13
14
15
16
17
18
19
20
21
22
23
24
25
26
3