Wilson v. Lopez et al

Filing 10

ORDER DISMISSING CASE, ***Civil Case Terminated. Signed by Judge Laurel Beeler on 3/20/2017. (Attachments: # 1 Certificate/Proof of Service)(rxmS, COURT STAFF) (Filed on 3/20/2017)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 San Francisco Division United States District Court Northern District of California 11 12 DAVID WILSON, Plaintiff, 13 14 15 Case No. 16-cv-02969-LB ORDER OF DISMISSAL v. Re: ECF No. 8 L. TORREZ LOPEZ, et al., Defendants. 16 17 18 David Wilson filed this pro se prisoner’s civil-rights action to complain about events and 19 omissions that occurred while he was housed at the Correctional Training Facility in Soledad. The 20 court reviewed the complaint, found that it had numerous deficiencies, and dismissed the 21 complaint with leave for Mr. Wilson to file an amended complaint. The order of dismissal with 22 leave to amend identified the elements of claims for retaliation, deliberate indifference to prisoner 23 safety, and due process violations, and it explained the deficiencies in Mr. Wilson’s allegations. 24 (ECF No. 4.) 25 Mr. Wilson then filed an amended complaint. (ECF No. 6.) The court examined the amended 26 complaint and determined that the amended complaint “fail[ed] to cure any of the deficiencies 27 identified in the order of dismissal with leave to amend” and failed to state a claim upon which 28 relief could be granted. (ECF No. 7 at 1.) The court stated that it would “give Mr. Wilson one last ORDER — No. 16-cv-02969-LB 1 chance to try to state a plausible claim for relief by allowing him to file a second amended 2 complaint.” (Id. at 2.) The court instructed Mr. Wilson to “study the order of dismissal with leave 3 to amend carefully and make sure that his second amended complaint cures all the deficiencies 4 mentioned in that order.” (Id.) Mr. Wilson then filed a second amended complaint. (ECF No. 8.) Like the earlier pleadings, 6 the second amended complaint fails to state a claim upon which relief may be granted. And like 7 the amended complaint, the second amended complaint does not cure the deficiencies identified in 8 the order of dismissal with leave to amend. The second amended complaint is a jumbled narrative 9 that does not allege facts that make out a plausible claim for retaliation, deliberate indifference to 10 safety, or a due process violation. More specifically, the second amended complaint does not state 11 United States District Court Northern District of California 5 a claim for retaliation because Mr. Wilson does not identify his protected conduct that prompted 12 the alleged retaliation, does not include enough factual details to plausibly suggest that a prison 13 official took adverse action because of Mr. Wilson’s constitutionally protected conduct, and does 14 not allege that an adverse action had any chilling effect on his First Amendment activity. See 15 Rhodes v Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (listing elements of First Amendment 16 retaliation claim). The second amended complaint does not state an Eighth Amendment failure-to- 17 protect claim that is plausible because Mr. Wilson does not allege facts to suggest that his belief 18 that a correctional officer set up a fight between him and another inmate is anything more than 19 speculation by him. The second amended complaint does not state a claim for a due process 20 violation in any prison disciplinary proceedings because Mr. Wilson does not allege the 21 deprivation of any procedural protections required by Wolff v. McDonnell, 418 U.S. 539, 564-67 22 (1974), or Superintendent v. Hill, 472 U.S. 445, 454 (1985), at the disciplinary hearing at which 23 Mr. Wilson pleaded guilty to the disciplinary offense. 24 The court does not grant further leave to amend because it would be futile. The court gave Mr. 25 Wilson directions about what he needed to allege to state a claim for retaliation, deliberate 26 indifference to safety, and a due process violation. (ECF No. 4.) And the court gave Mr. Wilson a 27 second chance to cure those deficiencies when his amended complaint did not cure his earlier 28 deficiencies. In all, Mr. Wilson had three opportunities to articulate his claims, and he failed to do ORDER — No. 16-cv-02969-LB 2 1 so. Under the circumstances, there is no ground to conclude that Mr. Wilson will be able to state a 2 claim if the court gives him another opportunity to try to do so. The court thus dismisses the 3 second amended complaint without leave to amend. The dismissal is without prejudice to Mr. 4 Wilson’s filing a petition for writ of habeas corpus to challenge his state court conviction, after he 5 exhausts state court remedies for any claim that he wishes to present to the federal court. 6 IT IS SO ORDERED. 7 Dated: 3/20/2017 __________________________ LAUREL BEELER United States Magistrate Judge 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER — No. 16-cv-02969-LB 3

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