Warner v. Stoller et al

Filing 21

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 1/29/18 ORDERING the Clerk of the Court assign a District Court Judge to this case. Also, RECOMMENDING that this action be dismissed for failure to state a claim upon which relief can be granted. Assigned and referred to Judge Morrison C. England Jr. 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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EARL WARNER,

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Plaintiff,

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No. 2:16-cv-2143 CKD P

v.

ORDER AND

M. STOLER, et al.,

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FINDINGS AND RECOMMENDATIONS

Defendants.

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Plaintiff is a state prisoner proceeding pro se and seeking relief pursuant to 42 U.S.C. §

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1983. On July 27, 2017, the court screened plaintiff’s amended complaint pursuant to 28 U.S.C.

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§ 1915A(a). The court found that the amended complaint, as with the original, fails to state a

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claim upon which relief can be granted. The amended complaint was dismissed with leave to file

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a second amended complaint and plaintiff was provided with guidance and instructions as to the

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contents of the second amended complaint. Plaintiff has now filed a second amended complaint.
The court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

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

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In order to avoid dismissal for failure to state a claim a complaint must contain more than

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“naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause

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of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words,

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

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statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim

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upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A

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claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw

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the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S.

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at 678. When considering whether a complaint states a claim upon which relief can be granted,

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the court must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89, 93-94, and construe

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the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232,

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236 (1974).

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In his second amended complaint, plaintiff claims that he is being denied access to a law

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library and his “personal legal property” by certain defendants “prejudiced the plaintiff in two

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active civil litigations.” ECF No. 19 at 15. However, plaintiff does not explain how he was

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prejudiced and he does not allege he was ever actually denied access to any court. While

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prisoners do have a right to access courts which arises under the First Amendment, Lewis v.

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Casey, 518 U.S. 343, 350 (1996), they do not have a freestanding right to access a law library, id.

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at 351.

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Plaintiff also claims retaliation for complaints made by him concerning conditions of

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confinement. However, these retaliation claims are not adequately supported as plaintiff fails to

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point to specific facts which reasonably link adverse actions not taken in furtherance of legitimate

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correctional goals with protected activity, such as filing prisoner grievances. See Pratt v.

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Rowland, 65 F.3d 802, 806 (9th Cir. 1995).

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Finally, plaintiff claims certain defendants denied him adequate mental health treatment.

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But plaintiff fails to allege facts suggesting he suffered injury because of any defendant’s

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deliberate indifference to known mental health problems. See Estelle v. Gamble, 429 U.S. 97,

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104-05 (1976).
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For the reasons stated above, plaintiff’s second amended complaint fails to state a claim

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upon which relief can be granted. On two occasions, the court has provided plaintiff with

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guidance as to the deficiencies with his claims and, in particular, the court informed plaintiff that

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his claims were too vague and lacking sufficient factual support. Despite the court’s instructions,

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plaintiff has not been able to allege facts amounting to a claim upon which he can proceed. For

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these reasons, granting plaintiff leave to amend a third time appears futile.

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Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court assign a district
court judge to this case; and

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IT IS HEREBY RECOMMENDED that this action be dismissed for failure to state a
claim upon which relief can be granted.

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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 after

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being served with these findings and recommendations, plaintiff may file written objections with

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the court. The document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” Plaintiff is advised that failure to file objections within the specified time

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waives the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir.

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1991).

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Dated: January 29, 2018

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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warn2143.14(2)

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