(PC) DePonte v. Bowman, et al.

Filing 27

ORDER signed by Magistrate Judge Chi Soo Kim on 6/5/2024 DISMISSING #24 Amended Complaint and DENYING #26 Motion for Discovery. Second Amended Complaint due within 30 days from the date of this order. (Kyono, V)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DAVID ARTHUR DEPONTE,

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No. 2:24-cv-01262 DJC CSK P

Plaintiff,

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v.

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BOWMAN, et al.,

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ORDER

Defendants.

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Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant

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to 42 U.S.C. § 1983. On May 7, 2024, this Court dismissed plaintiff’s complaint with leave to

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amend. (ECF No. 18.) Pending before the court is plaintiff’s amended complaint. (ECF No. 24.)

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For the reasons stated herein, plaintiff’s amended complaint is dismissed with leave to file a

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second amended complaint.

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Screening Standards
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 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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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th

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Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an

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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

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490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

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pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

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Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir.

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2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably

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meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at

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1227.
Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain

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statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the

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defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic

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Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

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In order to survive dismissal for failure to state a claim, a complaint must contain more than “a

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formulaic recitation of the elements of a cause of action;” it must contain factual allegations

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sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 U.S. at 555.

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However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the

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defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v.

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Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal

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quotations marks omitted). In reviewing a complaint under this standard, the court must accept as

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true the allegations of the complaint in question, Erickson, 551 U.S. at 93, and construe the

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pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236

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(1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984).

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Discussion

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Named as defendants are Law Librarian Supervisor Jessica Bowman, California Medical

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Facility (“CMF”) Warden Queava and California Department of Corrections and Rehabilitation

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(“CDCR”) Director Macomber. Plaintiff alleges that he filed a civil rights action and a grievance
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against Mirna Bierman. (ECF No. 24 at 1-2.) Plaintiff also alleges that he filed several

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grievances against CMF Education for tampering with his legal file and stealing plaintiff’s

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college money. (Id. at 2.) Plaintiff alleges that defendant Bowman retaliated against plaintiff for

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filing a civil rights action and grievances by changing plaintiff’s reading level, in prison records,

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from 12.9 to 7.0. (Id.) Plaintiff alleges that he filed a grievance informing defendant Queava that

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plaintiff’s reading level was illegally changed, but defendant Queava did nothing about it. (Id.)

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Plaintiff claims that as a result of the change in his reading level in prison records, plaintiff cannot

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be hired in a skilled position. (Id. at 4.) Plaintiff also appears to allege that he was transferred

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away from CMF because CMF fraudulently placed a confidential enemy in plaintiff’s file. (Id. at

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4.) Plaintiff alleges that he believes the confidential enemy was defendant Bowman. (Id. at 5.)

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Plaintiff alleges that during an interview regarding a grievance, defendant Bowman clearly stated

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to plaintiff, “You make people mad over 602s.” 1 (Id.)
“Within the prison context, a viable claim of First Amendment retaliation entails five

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basic elements: (1) An assertion that a state actor took some adverse action against an inmate

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(2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s

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exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate

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correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted).

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Allegations that defendant Bowman wrongly changed plaintiff’s reading score on or

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around the time she told plaintiff, “You make people mad over 602s,” would state a potentially

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colorable retaliation claim. However, plaintiff does not allege when defendant Bowman made the

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statement, “You make people mad over 602s,” in relation to when defendant Bowman allegedly

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changed plaintiff’s reading score. Without this information, this Court cannot determine whether

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plaintiff states a potentially colorable retaliation claim against defendant Bowman. Accordingly,

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the retaliation claim against defendant Bowman is dismissed. If plaintiff files a second amended

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complaint, plaintiff shall address when defendant Bowman allegedly changed plaintiff’s reading

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score and when defendant Bowman allegedly stated, “You make people mad over 602s.”

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A “602” is an administrative grievance.
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Plaintiff also alleges that he was transferred away from CMF because defendant Bowman

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was placed in his file as a confidential enemy. To the extent plaintiff claims that defendant

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Bowman caused plaintiff to be transferred away from CMF in retaliation for plaintiff’s legal

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activities, this claim is vague and conclusory. Plaintiff fails to plead any specific facts

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demonstrating defendant Bowman’s involvement in the decision to transfer plaintiff away from

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CMF. Accordingly, this claim is dismissed.

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Plaintiff alleges that he filed a grievance informing defendant Queava of defendant

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Bowman’s misconduct, but defendant Queava did nothing. Based on these allegations, defendant

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Queava may be liable if defendant Bowman violated plaintiff’s constitutional rights. Plaintiff

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does not state a potentially colorable claim for relief against defendant Queava because plaintiff

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does not state a potentially colorable claim for relief against defendant Bowman. Accordingly,

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the claim against defendant Queava is dismissed.

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Plaintiff’s amended complaint contains no specific allegations against defendant

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Macomber. The Civil Rights Act under which this action was filed provides as follows:

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Every person who, under color of [state law] . . . subjects, or causes
to be subjected, any citizen of the United States . . . to the deprivation
of any rights, privileges, or immunities secured by the Constitution .
. . shall be liable to the party injured in an action at law, suit in equity,
or other proper proceeding for redress.

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42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the

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actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See

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Monell v. Department of Social Servs., 436 U.S. 658 (1978) (“Congress did not intend § 1983

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liability to attach where . . . causation [is] absent.”); Rizzo v. Goode, 423 U.S. 362 (1976) (no

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affirmative link between the incidents of police misconduct and the adoption of any plan or policy

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demonstrating their authorization or approval of such misconduct). “A person ‘subjects’ another

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to the deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative

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act, participates in another’s affirmative acts or omits to perform an act which he is legally

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required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588

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F.2d 740, 743 (9th Cir. 1978).

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Moreover, supervisory personnel are generally not liable under § 1983 for the actions of
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their employees under a theory of respondeat superior and, therefore, when a named defendant

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holds a supervisorial position, the causal link between him and the claimed constitutional

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violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979)

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(no liability where there is no allegation of personal participation); Mosher v. Saalfeld, 589 F.2d

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438, 441 (9th Cir. 1978) (no liability where there is no evidence of personal participation), cert.

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denied, 442 U.S. 941 (1979). Vague and conclusory allegations concerning the involvement of

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official personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673

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F.2d 266, 268 (9th Cir. 1982) (complaint devoid of specific factual allegations of personal

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participation is insufficient). Accordingly, defendant Macomber is dismissed because he is not

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linked to any potentially colorable claim for relief.
If plaintiff files a second amended complaint, plaintiff is informed that the court cannot

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refer to a prior pleading in order to make plaintiff’s second amended complaint complete. Local

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Rule 220 requires that an amended complaint be complete in itself without reference to any prior

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pleading. Therefore, in a second amended complaint, each claim and the involvement of each

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defendant must be sufficiently alleged.

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Motion for Discovery (ECF No. 26)

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On May 31, 2024, plaintiff filed a motion requesting that defendants Bowman and Queava

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be ordered to produce several documents to plaintiff. (ECF No. 26.) Plaintiff’s motion for

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discovery is denied as premature because no defendant has yet been served.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s amended complaint is dismissed.

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2. Within thirty days from the date of this order, plaintiff shall complete the attached

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Notice of Amendment and submit the following documents to the court:

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a. The completed Notice of Amendment; and

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b. An original of the Second Amended Complaint.

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Plaintiff’s second amended complaint shall comply with the requirements of the Civil Rights Act,

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the Federal Rules of Civil Procedure, and the Local Rules of Practice. The second amended

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complaint must also bear the docket number assigned to this case and must be labeled “Second
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Amended Complaint.” Failure to file a second amended complaint in accordance with this order

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may result in the dismissal of this action; and

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3. Plaintiff’s motion for discovery (ECF No. 26) is denied as premature.

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Dated: June 5, 2024

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Deponte1262.ame
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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DANIEL ARTHUR DEPONTE,
Plaintiff,

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No. 2:24-cv-01262 DJC CSK P

v.

NOTICE OF AMENDMENT

BOWMAN, et al.,
Defendants.

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Plaintiff submits the following document in compliance with the court’s order
filed on ______________ (date).

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Second Amended Complaint

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(Check this box if submitting a Second Amended Complaint)

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DATED:

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Plaintiff