Coleman v. Foulk, et al

Filing 54

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 10/25/2017 ORDERING defendants Davis, Terry and Arnswald file their response to plaintiff's 53 third amended complaint within 21 days; and RECOMMENDING defendants Swartz, Harold, Hale and Nelson be dismissed. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days.(Yin, K)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SAAHDI ABDUL COLEMAN, 12 13 14 15 No. 2:13-cv-1753 KJM CKD P Plaintiff, v. ORDER AND FRED FOULK, et al., FINDINGS AND RECOMMENDATIONS Defendants. 16 17 Plaintiff is a state prisoner proceeding without counsel. Plaintiff seeks relief pursuant to 18 42 U.S.C. § 1983 and California law. On April 3, 2017, the court screened plaintiff’s second 19 amended complaint as the court is required to do under 28 U.S.C. § 1915A(a), and dismissed with 20 leave to amend. Plaintiff’s third amended complaint is now before the court for screening. 21 22 23 24 25 26 27 28 After having conducted the required screening, the court finds that plaintiff may proceed on the following claims against the following defendants: 1. Claim arising under the First Amendment based upon retaliation for protected activity against defendant Davis as detailed in paragraphs 26-29, 42, 52-55. 2. Claim arising under the First Amendment for denial of access to courts against defendant Terry as detailed in paragraph 45. 3. Claim arising under the First Amendment for denial of access to courts against defendant Arnswald as detailed in paragraphs 56-58. 1 1 In all other respects the allegations in the third amended complaint fail to amount to a 2 claim upon which plaintiff may proceed because, among other reasons mostly related to the 3 assertion of frivolous claims or unclear allegations: 4 1. The Due Process Clause of the Fourteenth Amendment does not require that a prisoner 5 grievance process be conducted in a particular way because plaintiff has no freestanding 6 constitutional right to a prisoner grievance procedure. Ramirez v. Galazza, 334 F.3d 850, 860 7 (9th Cir. 2003). 8 2. Plaintiff must allege facts showing the inability to assert a non-frivolous and arguable 9 claim or the loss of such a claim attributable to a particular defendant in order to state a claim for 10 damages based upon denial of access to courts. See Christopher v. Harbury, 536 U.S. 403, 415 11 (2002). 12 3. Plaintiff has failed to adequately allege a causal connection between the actions of a 13 defendant and an injury sustained by plaintiff. See Barren v. Harrington, 152 F.3d 1193, 1194-95 14 (9th Cir. 1998). There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative 15 link or connection between a defendant’s actions and the claimed deprivation. Rizzo v. Goode, 16 423 U.S. 362 (1976). Furthermore, vague and conclusory allegations of official participation in 17 civil rights violations are not sufficient. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 18 1982). 19 4. With respect to claims arising under California law, plaintiff has not adequately pled 20 compliance with the terms of the California Tort Claims Act. See Cal. Gov’t Code § 910 et seq.; 21 Mangold v. Cal. Pub. Utils. Comm’n, 67 F.3d. 1470, 1477 (9th Cir. 1995). Complaints must 22 present facts demonstrating compliance, rather than simply conclusions suggesting as much. 23 Shirk v. Vista Unified School Dist., 42 Cal.4th 201, 209 (2007).1 24 1 25 26 27 28 In his third amended complaint, plaintiff asserts “plaintiff filed claims with the Government Claims Board in accordance with the Government Code, and plaintiff commenced this action within 6 months of the board’s denial in accordance with the statute of limitations set forth in the government code.” ¶ 66. Considering the body of plaintiff’s complaint is 17 pages long, that there are numerous allegations of fact occurring on different dates against seven different defendants and plaintiff is generally vague as to which specific acts by defendants support his state law claims, plaintiff’s allegations regarding compliance with the California Tort Claims Act 2 1 2 In accordance with the above, IT IS HEREBY ORDERED that defendants Davis, Terry and Arnswald file their response to plaintiff’s third amended complaint within 21 days. 3 4 IT IS HEREBY RECOMMENDED that defendants Swartz, Harrod, Hale and Nelson be dismissed. 5 These findings and recommendations are submitted to the United States District Judge 6 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen after 7 being served with these findings and recommendations, plaintiff may file written objections with 8 the court. The document should be captioned “Objections to Magistrate Judge’s Findings and 9 Recommendations.” Plaintiff is advised that failure to file objections within the specified time 10 waives the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 11 1991). 12 Dated: October 25, 2017 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 1 cole1753.scrn(2) 19 20 21 22 23 24 25 26 27 28 are not adequate to state a claim upon which relief can be granted. 3

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