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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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San Francisco Division

United States District Court
Northern District of California

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DAVID WILSON,
Plaintiff,

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Case No. 16-cv-02969-LB
ORDER OF DISMISSAL

v.

Re: ECF No. 8
L. TORREZ LOPEZ, et al.,
Defendants.

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David Wilson filed this pro se prisoner’s civil-rights action to complain about events and

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omissions that occurred while he was housed at the Correctional Training Facility in Soledad. The

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court reviewed the complaint, found that it had numerous deficiencies, and dismissed the

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complaint with leave for Mr. Wilson to file an amended complaint. The order of dismissal with

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leave to amend identified the elements of claims for retaliation, deliberate indifference to prisoner

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safety, and due process violations, and it explained the deficiencies in Mr. Wilson’s allegations.

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(ECF No. 4.)

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Mr. Wilson then filed an amended complaint. (ECF No. 6.) The court examined the amended

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complaint and determined that the amended complaint “fail[ed] to cure any of the deficiencies

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identified in the order of dismissal with leave to amend” and failed to state a claim upon which

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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

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chance to try to state a plausible claim for relief by allowing him to file a second amended

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complaint.” (Id. at 2.) The court instructed Mr. Wilson to “study the order of dismissal with leave

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to amend carefully and make sure that his second amended complaint cures all the deficiencies

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mentioned in that order.” (Id.)
Mr. Wilson then filed a second amended complaint. (ECF No. 8.) Like the earlier pleadings,

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the second amended complaint fails to state a claim upon which relief may be granted. And like

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the amended complaint, the second amended complaint does not cure the deficiencies identified in

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the order of dismissal with leave to amend. The second amended complaint is a jumbled narrative

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that does not allege facts that make out a plausible claim for retaliation, deliberate indifference to

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safety, or a due process violation. More specifically, the second amended complaint does not state

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United States District Court
Northern District of California

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a claim for retaliation because Mr. Wilson does not identify his protected conduct that prompted

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the alleged retaliation, does not include enough factual details to plausibly suggest that a prison

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official took adverse action because of Mr. Wilson’s constitutionally protected conduct, and does

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not allege that an adverse action had any chilling effect on his First Amendment activity. See

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Rhodes v Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (listing elements of First Amendment

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retaliation claim). The second amended complaint does not state an Eighth Amendment failure-to-

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protect claim that is plausible because Mr. Wilson does not allege facts to suggest that his belief

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that a correctional officer set up a fight between him and another inmate is anything more than

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speculation by him. The second amended complaint does not state a claim for a due process

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violation in any prison disciplinary proceedings because Mr. Wilson does not allege the

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deprivation of any procedural protections required by Wolff v. McDonnell, 418 U.S. 539, 564-67

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(1974), or Superintendent v. Hill, 472 U.S. 445, 454 (1985), at the disciplinary hearing at which

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Mr. Wilson pleaded guilty to the disciplinary offense.

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The court does not grant further leave to amend because it would be futile. The court gave Mr.

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Wilson directions about what he needed to allege to state a claim for retaliation, deliberate

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indifference to safety, and a due process violation. (ECF No. 4.) And the court gave Mr. Wilson a

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second chance to cure those deficiencies when his amended complaint did not cure his earlier

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deficiencies. In all, Mr. Wilson had three opportunities to articulate his claims, and he failed to do
ORDER — No. 16-cv-02969-LB

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so. Under the circumstances, there is no ground to conclude that Mr. Wilson will be able to state a

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claim if the court gives him another opportunity to try to do so. The court thus dismisses the

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second amended complaint without leave to amend. The dismissal is without prejudice to Mr.

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Wilson’s filing a petition for writ of habeas corpus to challenge his state court conviction, after he

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exhausts state court remedies for any claim that he wishes to present to the federal court.

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IT IS SO ORDERED.

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Dated: 3/20/2017
__________________________
LAUREL BEELER
United States Magistrate Judge

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United States District Court
Northern District of California

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ORDER — No. 16-cv-02969-LB

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