Brown v. CDCR Medical Care System
Filing
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ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 10/3/2018 ORDERING the Clerk to assign a district court judge to this case and RECOMMENDING plaintiff's 19 fourth amended complaint be dismissed for failure to state a claim upon which relief can be granted, and this case be closed. Assigned and referred to Judge Troy L. Nunley; Objections to F&R due within 14 days. (Yin, K)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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KENNY BROWN,
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No. 2:17-cv-1833 CKD P
Plaintiff,
v.
ORDER AND
CDCR MEDICAL CARE SYSTEM,
FINDINGS AND RECOMMENDATIONS
Defendant.
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Plaintiff is a California prisoner proceeding without counsel. Plaintiff seeks relief
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pursuant to 42 U.S.C. § 1983, and is proceeding in forma pauperis. This proceeding was referred
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to this court pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302.
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On November 8, 2017, the court screened plaintiff’s complaint, as the court is required to
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do under 28 U.S.C. § 1915A(a). The court found the complaint failed to state a claim upon which
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relief can be granted and dismissed with leave to amend. The court provided plaintiff with
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guidance as to the contents of his amended complaint.
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On May 3, 2018, the court screened plaintiff’s amended complaint. The amended
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complaint was also dismissed for failure to state a claim upon which relief can be granted and
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leave to amend a second time was granted. Again, the court provided plaintiff with guidance as
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to how to proceed. In response to the court’s order, plaintiff has filed a second, third and fourth
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amended complaint. As plaintiff knows, Local Rule 220 requires that any amended complaint be
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complete in itself without reference to any prior pleading. See ECF Nos. 5 at 3 & 12 at 2.
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Therefore, the court will now screen plaintiff’s latest amended complaint, the fourth amended.
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As plaintiff also already knows, the court must dismiss a complaint or portion thereof if
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the prisoner has raised claims that are legally “frivolous or malicious,” that fail to state a claim
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upon which relief may be granted, or that seek monetary relief from a defendant who is immune
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from such relief. 28 U.S.C. § 1915A(b)(1), (2).
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Generally speaking, plaintiff complains about his conviction, sentence and medical care in
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his fourth amended complaint. As with his original and first amended complaints, the allegations
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are too vague to state a claim upon which relief might be granted under the Eighth Amendment
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for denial of medical care despite the fact that in the court’s previous two screening orders,
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plaintiff was instructed as to the requirements for stating a claim. As for his conviction and
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sentence, when a state prisoner challenges the legality of his custody and the relief he seeks is the
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determination of his entitlement to an earlier or immediate release, his sole federal remedy is a
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writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973).
For these reasons, plaintiff’s fourth amended complaint fails to state a claim upon which
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relief can be granted and must be dismissed. Providing plaintiff with advice a third time as to
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how he might state a claim upon which he might proceed under the Eighth Amendment, and
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providing plaintiff leave to file a fifth amended complaint appear futile.1 Therefore, leave to
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amend will not be granted.
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Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court assign a district
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court judge to this case.
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The court has reviewed plaintiff’s second and third amended complaints. Neither of those
pleadings state a claim upon which relief can be granted, and neither suggest any reasonable basis
for again granting plaintiff leave to amend.
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IT IS HEREBY RECOMMENDED that:
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1. Plaintiff’s fourth amended complaint (ECF No. 19) be dismissed for failure to state a
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claim upon which relief can be granted; and
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2. This case be closed.
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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: October 3, 2018
_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
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