Rojo v. Donovan, et al.,

Filing 23

ORDER overruling plaintiff's objections, denying reconsideration and dismissing Third Amended Complaint for failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). The Court further certifies that an IFP a ppeal from this final Order of dismissal would not be taken "in good faith" pursuant to 28 U.S.C. § 1915(a)(3). The Clerk shall close the file. Signed by Judge Larry Alan Burns on 11/14/14. (All non-registered users served via U.S. Mail Service)(kas)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JAMES E. ROJO,
CDCR #J-53355,

Civil No.
Plaintiff,

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vs.

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D. PARAMO, Warden; A. HERNANDEZ,
Deputy Warden; Mr. BEARD, Secretary
CDCR; JONES, Correctional Officer;
SMITH, Correctional Officer;
Dr. M. GARIKAPARTHI,
Defendants.

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ORDER OVERRULING
PLAINTIFF’S OBJECTIONS,
DENYING RECONSIDERATION
AND DISMISSING THIRD
AMENDED COMPLAINT
FOR FAILING TO STATE
A CLAIM PURSUANT
TO 28 U.S.C. § 1915(e)(2)(B)(ii)
AND § 1915A(b)(1)
(ECF Doc. No. 22)

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I.

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Procedural History
On May 8, 2013, James E. Rojo (“Plaintiff”), a state prisoner currently incarcerated at the

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Richard J. Donovan Correctional Facility (“RJD”) in San Diego, California and proceeding pro

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se, initiated this civil action pursuant to 42 U.S.C. § 1983 in the Northern District of California.

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On September 17, 2013, United States District Judge William H. Orrick determined that

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Plaintiff’s claims arose at RJD; therefore, venue was proper in the Southern District of

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California and the matter was transferred here pursuant to 28 U.S.C. §§ 84(d), 1391(b) and

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1406(a) (ECF Doc. No. 8). Judge Orrick did not rule on Plaintiff’s Motion to Proceed In Forma

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Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a), nor did he screen Plaintiff’s Complaint

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pursuant to 28 U.S.C. § 1915(e)(2) or § 1915A prior to transfer.

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On October 25, 2013, this Court granted Plaintiff’s Motion to Proceed IFP, but

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simultaneously dismissed his Complaint for failing to state a claim upon which relief could be

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granted pursuant to 28 U.S.C. § 1915(e)(2) & 1915A(b) (ECF Doc. No. 11). Specifically, the

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Court dismissed Plaintiff’s claims against RJD on Eleventh Amendment grounds, id. at 5,

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dismissed his claims against the Director/Secretary of the CDCR and RJD Wardens Paramo and

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Hernandez because Plaintiff failed to allege any individualized wrongdoing on their parts, id.

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at 5-6, dismissed his allegations of verbal harassment on the part of Correctional Officers Smith

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and Jones because he failed to allege facts which might give rise to an Eighth Amendment

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violation, id. at 6, and dismissed Plaintiff’s vague mention of “being denied medical treatment”

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and deprived of his property because his Complaint contained only “naked assertions” and no

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“further factual enhancement” sufficient to state a plausible claim for relief under either the

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Eighth or Fourteenth Amendments. Id. at 7-8. Plaintiff was granted leave to file an Amended

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Complaint in order to correct the deficiencies identified in the Court’s Order. Id. at 8-9.

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Plaintiff filed a First Amended Complaint (“FAC”) (ECF Doc. No. 13), but it too was

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dismissed sua sponte for failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2) and §

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1915A(b) (ECF Doc. No. 14). Because Plaintiff’s FAC continued to name RJD, its Wardens,

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and the Secretary of the CDCR as Defendants, and continued to suffer from the same pleading

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problems noted in the Court’s October 25, 2013 Order, it was dismissed for failing to state a

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claim upon which relief can be granted. Id. at 7. To the extent Plaintiff appeared, for the first

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time, to specifically challenge the validity of a three-month stint in Administrative Segregation,

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however, he was advised of the pleading requirements necessary to show a liberty interest under

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the Fourteenth Amendment and Sandin v. Conner, 515 U.S. 472, 481-84 (1995), and provided

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another opportunity to amend. Id. at 5-7.

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On May 16, 2014, Plaintiff filed his Second Amended Complaint (“SAC”) (ECF Doc.

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No. 15), which re-named all previously named parties except RJD, and added an additional

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defendant, Dr. M. Garikaparthi. See SAC at 1, 2. Two weeks later, on May 30, 2014, Plaintiff

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also submitted a Motion for Preliminary Injunction (ECF Doc. No. 20).

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On June 10, 2014, the Court denied Plaintiff’s Motion for Preliminary Injunction,

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screened his Second Amended Complaint, and dismissed it in its entirety for continuing to fail

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to state any claim upon which § 1983 relief could be granted against any named Defendant. See

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June 10, 2014 Order (ECF Doc. No. 21). Specifically, the Court dismissed all claims previously

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alleged against R.J. Donovan State Prison, D. Paramo, Warden, A. or Alan Hernandez, Deputy

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Warden, J. Beard, Director/Secretary of the CDCR, D. Jones, and D. Smith, Correctional

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Officers, and Plaintiff’s inadequate medical treatment claims against Dr. M. Garikaparthi
Id. at 11-12. Because Plaintiff had not been previously

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without further leave to amend.

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apprised of his deficiencies of pleading regarding one newly added claim of retaliation against

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Defendant Garikaparthi, however, the Court granted Plaintiff “one final opportunity to amend

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this claim against this Defendant only.” Id. at 9-10 (emphasis original). Plaintiff was ordered

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not to “include any additional claims against Garikaparthi or any other party,” denied leave to

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add any new parties, and cautioned that his failure “to adhere to the directions set forth in [the

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Court’s] Order,” would result in dismissal of the entire action without further leave to amend for

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failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Id. at 12.

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In response, Plaintiff filed a document entitled “Respond to Order of 6-10-14 Third

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Amended Complain[t] and Objections to the Court[’]s Order” which the Court will liberally

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construe as both a request for reconsideration of the Court’s June 10, 2014 Order as well as his

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Third Amended Complaint (“TAC”) (ECF Doc. No. 22).

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II.

“Objections” and Reconsideration

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While the Federal Rules of Civil Procedure do not expressly provide for motions for

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reconsideration, the Court may reconsider matters previously decided under Rule 59(e) or Rule

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60(b). See Osterneck v. Ernst & Whinney, 489 U.S. 169, 174 (1989); In re Arrowhead Estates

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Development Co., 42 F.3d 1306, 1311 (9th Cir. 1994). In Osterneck, the Supreme Court stated

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that a ruling may be re-considered under Rule 59(e) motion where it involves “‘matters properly

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encompassed in a [previous] decision on the merits.’” 489 U.S. at 174 (quoting White v. New

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Hampshire Dep’t of Employ’t Sec., 455 U.S. 445, 451 (1982)). Reconsideration is generally

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appropriate only if the district court “(1) is presented with newly discovered evidence,

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(2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an

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intervening change in controlling law.” School Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263

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(9th Cir. 1993) (citations omitted).

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Plaintiff appears to object to the Court’s prior Orders finding he failed to state a claim

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against Warden Paramo and Deputy Warden Hernandez on grounds that they “were aware that

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plaintiff was not guilty of the charges that put him into Administrative Segregation.” See TAC

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at 1-2. He further seeks to “submit documentation” to show that Officers Smith and Jones

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“acted under color of state authority” and “tr[ied] to have inmates attack [him].” Id. at 2-3.

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Finally, Plaintiff claims he continues to suffer from various medical ailments for which Dr.

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Garikaparthi “has failed to administer the necessary medical . . . care.” Id. at 4. As noted above,

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however, the Court has already twice considered and dismissed due process claims related to

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Plaintiff’s segregation, and all his Eighth Amendment claims, only after apprising him of his

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pleadings deficiencies and giving him ample opportunity to correct them. See Oct. 25, 2014

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Order (ECF Doc. No. 11); April 23, 2014 Order (ECF Doc. No. 14). It was only after Plaintiff

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failed for a third time to plead a claim to relief as to any of these allegations that was “plausible

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on its face,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), that the Court denied him further leave

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to amend. See Gonzalez v. Planned Parenthood, 759, F.3d 1112, 1119 (9th Cir. 2014) (noting

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that district court’s discretion in denying amendment is “‘particularly broad’ when it has

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previously given leave to amend.”) (citation omitted).

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The objections Plaintiff’s raises in his TAC offer no “further factual enhancement”

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sufficient to state any plausible claim for relief. Iqbal, 556 U.S. at 679. And while the Court

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has continually construed all of Plaintiff’s pleadings liberally and in the light most favorable to

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him, Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010), it simply may not “supply

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essential elements of claims that were not initially pled.” Ivey v. Bd. of Regents of University

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of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

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Thus, because Plaintiff’s has failed to present the Court with any with newly discovered

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evidence, has identified no clear error, demonstrated no manifest injustice, and has pointed to

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no intervening change in controlling law, see School Dist. No. 1J, 5 F.3d at 1263, his objections

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are overruled and his request for reconsideration is DENIED.

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III.

Sua Sponte Screening Pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b)

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A.

Standard of Review

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As Plaintiff is now well aware, the Prison Litigation Reform Act (“PLRA”) requires the

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Court to review complaints filed by all persons proceeding IFP and by those, like Plaintiff, who

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are “incarcerated or detained in any facility [and] accused of, sentenced for, or adjudicated

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delinquent for, violations of criminal law or the terms or conditions of parole, probation, pretrial

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release, or diversionary program,” “as soon as practicable after docketing.” See 28 U.S.C.

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§§ 1915(e)(2) and 1915A(b). Under the PLRA, the Court must sua sponte dismiss complaints,

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or any portions thereof, which are frivolous, malicious, fail to state a claim, or which seek

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damages from defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez

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v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v. Robinson,

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621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)).

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Plaintiff’s TAC, like his previous complaints, must contain “a short and plain statement

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of the claim showing that the pleader is entitled to relief.” FED.R.CIV.P. 8(a)(2). Detailed

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factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of

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action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citing

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Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining whether a complaint

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states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court

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to draw on its judicial experience and common sense.” Id. The “mere possibility of misconduct”

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falls short of meeting this plausibility standard. Id.

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“When there are well-pleaded factual allegations, a court should assume their veracity,

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and then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S.

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at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) (“[W]hen determining

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whether a complaint states a claim, a court must accept as true all allegations of material fact and

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must construe those facts in the light most favorable to the plaintiff.”); Barren v. Harrington,

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152 F.3d 1193, 1194 (9th Cir. 1998) (noting that § 1915(e)(2) “parallels the language of Federal

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Rule of Civil Procedure 12(b)(6)”).

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And while the court has noted its obligation in pro se cases to construe the pleadings

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liberally and to “afford the petitioner the benefit of any doubt,” Hebbe, 627 F.3d at 342 & n.7,

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“vague and conclusory allegations of official participation in civil rights violations” remain

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insufficient to state a claim upon which § 1983 relief may be granted. Ivey, 673 F.2d at 268.

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B.

Plaintiff’s Third Amended Complaint

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While the Court’s June 10, 2014 Order denied Plaintiff leave to further amend most of

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his claims, he was granted leave to file a Third Amended Complaint in order to correct his

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deficiencies of pleading a claim for retaliation against Dr. Garikaparthi. See June 10, 2014

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Order at 8-10. Plaintiff was advised that “[w]ithin the prison context, a viable claim of First

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Amendment retaliation entails five basic elements: (1) an assertion that a state actor took some

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adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and that

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such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action

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did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559,

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567-68 (9th Cir. 2005) (footnote omitted). Plaintiff was further cautioned that retaliation is not

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established simply by pointing to adverse action following protected speech, and that in addition

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he must allege facts to plausibly suggest a nexus between the two. See Huskey v. City of San

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Jose, 204 F.3d 893, 899 (9th Cir. 2000).

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In his TAC, Plaintiff continues to claim he “filed [a claim] with the medical board”

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regarding arguments he had with Garikaparthi’s as to his medical prescriptions, and that

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Garikaparthi “started advising other doctors . . . not to issue anything that would help

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[Plaintiff’s] pain.” See TAC at 4. But that’s all he says, and he still fails to offer any facts from

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which a reasonable inference might be drawn that Garikaparthi took adverse action against him

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because he had engaged in protected conduct. See Wood v. Yordy, 753 F.3d 899, 904-05 (9th

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Cir. 2014) (finding “mere speculation that defendants acted out of retaliation” insufficient);

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Sorrano’s Gasco Inc. v. Morgan, 874 F.3d 1310, 1314 (9th Cir. 1995) (plaintiff’s protected

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conduct must be the “substantial or “motivating” factor in defendant’s decision to act); Iqbal,

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556 U.S. at 678 (“A claim has facial plausibility when the plaintiff pleads factual content that

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allows the court to draw the reasonable inference that the defendant is liable for the misconduct

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alleged.”). In addition, Plaintiff still fails to explain how he was “chilled” by Garikaparthi’s

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actions, see Rhodes, 408 F.3d at 568 n.11, or claim that any of Garikaparthi’s decisions failed

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to advance a legitimate penal interest. See Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir.

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1994 (per curiam) (retaliatory action must be alleged to have “advanced no legitimate

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penological interest.”).

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Thus, for all these reasons, the Court finds Plaintiff’s TAC still fails to state a retaliation

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claim against Dr. Garikaparthi upon which relief can be granted, and therefore it requires

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dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). See Lopez, 203 F.3d at

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1126-27; Rhodes, 621 F.3d at 1004. Because Plaintiff has already been provided an opportunity

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to amend this claim, as well as all his other previously pleaded claims on several occasions, but

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to no avail, the Court finds further leave to amend at this juncture would simply be futile. See

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Gonzalez, 759 F.3d at 1116 (“‘Futility of amendment can, by itself, justify the denial of . . . leave

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to amend.’”) (quoting Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995)).

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IV.

Conclusion and Order

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For the reasons set forth above, IT IS HEREBY ORDERED that:

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1)

Plaintiff’s Objections to the Court’s June 10, 2014 Order are OVERRULED,

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reconsideration is DENIED, and Plaintiff’s Third Amended Complaint (ECF Doc. No. 22) is

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DISMISSED for failing to state a claim upon which § 1983 relief may be granted without further

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leave to amend pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1).
2)

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The Court further CERTIFIES that an IFP appeal from this final Order of dismissal

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would not be taken “in good faith” pursuant to 28 U.S.C. § 1915(a)(3). See Coppedge v. United

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States, 369 U.S. 438, 445 (1962); Gardner v. Pogue, 558 F.2d 548, 550 (9th Cir. 1977) (indigent

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appellant is permitted to proceed IFP on appeal only if appeal would not be frivolous).

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The Clerk shall close the file.

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DATED: November 14, 2014
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HONORABLE LARRY ALAN BURNS
United States District Judge

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