Crisp v. Duffy et al
Filing
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ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 09/17/18 VACATING the 23 FINDINGS and RECOMMENDATIONS. Plaintiff's pending motions to lodge records 26 , 27 are DENIED as moot. Also, RECOMMENDING that this action be dismissed for plaintiff's failure to state a claim upon which relief may be granted. Referred to Judge John A. Mendez. 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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OBIE L. CRISP, III,
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Plaintiff,
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No. 2:16-cv-0288 JAM DB P
v.
ORDER AND FINDINGS AND
RECOMMENDATIONS
BRIAN DUFFY, et al.,
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Defendants.
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Plaintiff is a former state prisoner proceeding pro se and in forma pauperis with a civil
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rights action under 42 U.S.C § 1983. Plaintiff alleges violations of his rights in a rules violation
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hearing and in the subsequent appeals. In order filed August 2, 2017, the court found plaintiff’s
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first amended complaint failed to state cognizable claims for relief under § 1983, but that plaintiff
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may be able to state a claim for retaliation. (ECF No. 16.) Plaintiff was given the opportunity to
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file a second amended complaint.
After receiving two extensions of time, plaintiff file a second amended complaint on
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January 17, 2018. (ECF No. 21.) Again, the court found plaintiff failed to state any cognizable
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claims for relief. Plaintiff was provided with instructions on filing a third amended complaint and
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given thirty days to do so. (Feb. 6, 2018 Order, ECF No. 22.)
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On March 20, 2018, plaintiff had not filed a third amended complaint or otherwise
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responded to the court’s February 6, 2018 order. The court recommended dismissal of this action
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for plaintiff’s failure to comply with court orders. (ECF No. 23.)
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On March 23, 2018, plaintiff filed a third amended complaint. In addition, in April, he
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sought to lodge, and did lodge, exhibits with the court. First, plaintiff explains why his filing of
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this amended complaint was delayed. The court accepts that explanation, will vacate the March
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20 recommendation that this case be dismissed, and will screen the third amended complaint.
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The court’s review of the third amended complaint shows, as best the court can tell, that
plaintiff is again complaining of the conduct of a rules violation proceeding that occurred in 2014.
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As plaintiff has been informed twice previously, his arguments about the conduct of that
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proceeding do not state a claim that is cognizable under 42 U.S.C. § 1983. (See Orders filed Aug.
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2, 2017 and Feb. 6, 2018.) Plaintiff’s attempts to recast those claims as ones for “Conspiracy”
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does not change the fact that plaintiff’s has not established a violation of his due process rights.
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“Conspiracy” is not a stand-alone claim. A conspiracy “does not enlarge the nature of the claims
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asserted by the plaintiff, as there must always be an underlying constitutional violation.” Lacey
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v. Maricopa Cnty., 693 F.3d 896, 935 (9th Cir. 2012) (en banc) (citations omitted).
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To the extent plaintiff is attempting to state a claim for retaliation, he again fails to do that
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as well. While plaintiff states at one point that the actions taken against him were the result of a
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phone call he made to the “Internal Affairs Direct Hotline” against “Warden Rackly,” he does not
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show any relationship between that phone call and his complaints about the rules violation
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proceeding. Plaintiff’s third amended complaint fails to state cognizable claims for relief.
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If the court finds that a complaint should be dismissed for failure to state a claim, the court
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has discretion to dismiss with or without leave to amend. Lopez v. Smith, 203 F.3d 1122, 1126-
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30 (9th Cir. 2000) (en banc). Leave to amend should be granted if it appears possible that the
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defects in the complaint could be corrected, especially if a plaintiff is pro se. Id. at 1130-31; see
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also Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (“A pro se litigant must be given
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leave to amend his or her complaint, and some notice of its deficiencies, unless it is absolutely
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clear that the deficiencies of the complaint could not be cured by amendment.” (Citing Noll v.
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Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987))). However, if, after careful consideration, it is
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clear that a complaint cannot be cured by amendment, the court may dismiss without leave to
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amend. Cato, 70 F.3d at 1005-06.
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Plaintiff filed this action over two years ago and has filed four complaints. None have
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stated any claims cognizable under § 1983. The court finds any further attempts by plaintiff to
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state a claim would be futile. Therefore, this court will recommend dismissal of this action for
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failure to state a claim.
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Accordingly, IT IS HEREBY ORDERED that:
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1. The findings and recommendations filed March 20, 2018 (ECF No. 23) are vacated.
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2. Plaintiff’s pending motions to lodge records (ECF Nos. 26, 27) are denied as moot.
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Further, IT IS RECOMMENDED that this action be dismissed for plaintiff’s failure to
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state a claim upon which relief may be granted.
These findings and recommendations will be 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, plaintiff may file written objections
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with the court. The document should be captioned “Objections to Magistrate Judge's Findings
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and Recommendations.” Plaintiff is advised that failure to file objections within the specified
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time may result in waiver of the right to appeal the district court’s order. Martinez v. Ylst, 951
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F.2d 1153 (9th Cir. 1991).
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Dated: September 17, 2018
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DLB:9
DLB1/prisoner-civil rights/cris0288.fr
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