Flournoy v. Sacramento County Sheriff Dept et al

Filing 24

ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 3/12/2013 ORDERING that service is appropriate for Richard Bauer, Joseph Dolan Kinder, Glayol Sahba and Michael Sotack; the Clerk shall send plaintiff forms for se rvice to be completed and returned within 30 days, along with the Notice of Submission; and RECOMMENDING that plaintiff's First Amendment claim against defendant Bauer be dismissed without leave to amend. Referred to Judge Kimberly J. Mueller; Objections 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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JAMES HENRY FLOURNOY,
Plaintiff,

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No. 2:11-cv-2844 KJM EFB P

vs.
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ERIC MANNESS, et al.,
ORDER AND
FINDINGS AND RECOMMENDATIONS

Defendants.
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Plaintiff is state prisoner proceeding pro se with this civil rights action under 42 U.S.C.

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§ 1983. After two screening orders issued pursuant to 28 U.S.C. § 1915A, plaintiff has filed a

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second amended complaint. Dckt. No. 22.

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Pursuant to 28 U.S.C. § 1915A, the court shall review “a complaint in a civil action in

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which a prisoner seeks redress from a governmental entity or officer or employee of a

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governmental entity.” 28 U.S.C. § 1915A(a). “On review, the court shall identify cognizable

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claims or dismiss the complaint, or any portion of the complaint, if the complaint (1) is frivolous,

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

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from a defendant who is immune from such relief.” Id. § 1915A(b).

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The court finds that for the limited purposes of § 1915A screening, and liberally
construed, the complaint states the following potentially cognizable claims: (1) an Eighth
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Amendment deliberate indifference claim and an Americans with Disabilities Act (“ADA”)

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claim for damages against defendant Bauer based on plaintiff’s alleged need for a wheelchair

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and need to be confined to the “medical floor”; (2) an Eighth Amendment deliberate indifference

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claim against defendant Sahba based on plaintiff’s alleged need for a wheelchair; (3) a due

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process/privacy claim based on defendant Sotak’s alleged access to plaintiff’s medical records;

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and (4) an Eighth Amendment excessive force claim and a § 1983 malicious prosecution claim

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against defendant Kinder.

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Plaintiff’s allegations regarding his need for a wheelchair and/or housing on the jail’s
“medical floor” form the basis of plaintiff’s Eighth Amendment and ADA claims against

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defendant Bauer. To the extent plaintiff wishes to state a First Amendment retaliation claim

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against defendant Bauer based on Bauer’s alleged “campaign of harassment, see Dckt. No. 22 at

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16-17 (“Claim II”), he fails to do so. To state a viable First Amendment retaliation claim, a

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prisoner must allege five elements: “(1) An assertion that a state actor took some adverse action

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against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4)

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chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably

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advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir.

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2005). Conduct protected by the First Amendment includes communications that are “part of the

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grievance process.” Brodheim, 584 F.3d at 1271 n.4. Here, plaintiff has had two opportunities

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to amend his complaint and his allegations simply do not demonstrate a plausible First

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Amendment retaliation claim. Accordingly, this claim should be dismissed without leave to

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amend.

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Accordingly, it hereby is ORDERED that:

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1. Service is appropriate for defendants Bauer, Kinder, Sahba, and Sotak.

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2. The Clerk of the Court shall send plaintiff four USM-285 forms, one summons, an

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instruction sheet and one copy of the February 14, 2013 second amended complaint.

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3. Within 30 days from service of this order, plaintiff shall complete the attached Notice

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of Submission of Documents and submit it to the court with the completed summons and USM-

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285 forms and five copies of the endorsed complaint.

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4. Upon receipt of the necessary materials, the court will direct the United States

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Marshal to serve defendants Bauer, Kinder, Sahba, and Sotak pursuant to Federal Rule of Civil

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Procedure 4 without payment of costs. Failure to comply with this order may result in a

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recommendation that this action be dismissed.

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Further, IT IS HEREBY RECOMMENDED that plaintiff’s First Amendment claim
against defendant Bauer be dismissed without leave to amend.

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These findings and recommendations are submitted to the United States District Judge

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

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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.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: March 12, 2013.

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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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JAMES HENRY FLOURNOY,
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Plaintiff,
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No. 2:11-cv-2844 KJM EFB P

vs.

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ERIC MANNESS, et al.,
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Defendants.

NOTICE OF SUBMISSION OF DOCUMENTS

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Plaintiff hereby submits the following documents in compliance with the court’s order
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filed

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completed summons form

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completed forms USM-285

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copies of the endorsed complaint

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Dated:
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Plaintiff

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