Simmons v. Hansen

Filing 11

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 04/08/14 ORDERING the clerk of court is directed to randomly assign a District Judge to this case. U.S. District Judge Troy L. Nunley randomly assigned to this case. Also, RECOMMENDING that this action be dismissed for failure to state a claim. Referred to Judge Troy L. Nunley. Objections due within 14 days. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ALTON L. SIMMONS,

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Plaintiff,

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No. 2:13-cv-2568 KJN P

v.

ORDER and

D. HANSEN,

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FINDINGS AND RECOMMENDATIONS
Defendant.

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Plaintiff is a prisoner at California State Prison-Sacramento who proceeds without counsel

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in this putative civil rights action. On March 13, 2014, the court granted plaintiff’s application to

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proceed in forma pauperis and dismissed plaintiff’s complaint with leave to file an amended

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complaint. (See ECF Nos. 7, 8.)
As earlier noted, the court is required to screen complaints brought by prisoners seeking

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relief 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 claims

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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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The court dismissed plaintiff’s original complaint, with leave to file an amended

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complaint, for the following reasons (ECF No. 7 at 2-3):
Plaintiff’s “complaint” – which alleges that [sole defendant]
correctional officer Hansen threatened to shoot plaintiff if he did
not bring to an end his prison janitorial tasks -- reveals three
problems. First, while plaintiff is clearly asserting a civil rights
claim, his “complaint” is set forth on a form used to pursue a
petition for writ of habeas corpus. Plaintiff will be accorded an
opportunity to present his claims on the appropriate form for
pursuing a civil rights action, in an “Amended Complaint.”

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Second, plaintiff’s attached exhibits indicate that he exhausted his
administrative remedies through only the Second Level. A prisoner
must exhaust all available administrative remedies, through the
Director’s (Third) Level, before bringing a federal civil rights
action. Griffin v. Arpaio, 557 F.3d 1117, 1119 (9th Cir. 2009);
Brown v. Valoff, 422 F.3d 926, 934 (9th Cir. 2005). A court may
dismiss an action for failure to exhaust administrative remedies,
pursuant to initial screening of the complaint under 28 U.S.C. §
1915A. Bennett v. King, 293 F.3d 1096, 1098 (9th Cir.2002)
(affirming district court’s sua sponte dismissal of prisoner’s
complaint because he failed to exhaust his administrative remedies).
Because plaintiff has alerted the court to this possibility, he must
demonstrate exhaustion of his administrative remedies when he
files his Amended Complaint.

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Third, plaintiff is informed that his allegations against defendant
Hansen, as currently framed, do not appear to state a cognizable
Eighth Amendment claim. See Gaut v Sunn, 810 F2d 923, 925 (9th
Cir. 1987) (mere threat of physical harm is not a constitutional
wrong); Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996) (verbal
harassment alone does not violate the Eighth Amendment); see also
Ferguson v. Pagati, 2013 WL 3989426 (C.D. Cal. 2013) (collecting
and reviewing cases). Therefore, plaintiff must demonstrate, in his
Amended Complaint, that his allegations are sufficient to state an
Eighth Amendment claim.

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The court informed plaintiff that “[f]ailure to timely file an Amended Complaint in

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accordance with this order will result in a recommendation that this action be dismissed.” (Id. at

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3.)

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Plaintiff timely filed an Amended Complaint on the proper form, and checked the box

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indicating that he exhausted his administrative remedies. (ECF No. 10.) However, this complaint

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is even more limited than plaintiff’s original complaint, and states in full (id. at 3):
On [blank] Officer D. Hansen threatened to shoot me and I wasn’t
doing anything that consists of getting shot. I was only doing my
job. [Requested Relief:] Prosecute D. Hansen for terroist (sic)
threats and monetary comp.

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The undersigned finds that plaintiff’s Amended Complaint (ECF No. 10) fails to state a

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claim upon which relief may be granted, 28 U.S.C. § 1915A(b)(1), and, on this basis, should be
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dismissed.
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Accordingly, IT IS HEREBY ORDERED that:
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1. The Clerk of Court is directed to randomly assign a district judge to this case.
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For the reasons stated above, IT IS HEREBY RECOMMENDED that:
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1. This action be dismissed for failure to state a claim. 28 U.S.C. § 1915A(b)(1).
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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.” Any response to the

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objections shall be filed and served within fourteen days after service of the objections. The
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parties are advised that failure to file objections within the specified time may waive the right to
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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: April 8, 2014
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simm2568.close

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