Asberry v. Cate et al

Filing 35

ORDER DISMISSING CIVIL ACTION For Failing To State A Claim And For Failing To Comply With Court Order Requiring Amendment: Because Plaintiff has failed to comply with the Court's 8/12/2014 Order directing him to file a Third Amended Complaint wi thin 45 days, it hereby dismisses this civil action without prejudice for failing to state a claim pursuant to 28 U.S.C. Sections 1915(e)(2)(B)(ii) and 1915A(b)(1) and for failing to comply with a Court Order. The Clerk is directed to enter a judgment of dismissal without prejudice and close the case. Signed by Judge William Q. Hayes on 10/28/2014. (All non-registered users served via U.S. Mail Service.) (mdc)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 TONY ASHBERRY, CDCR #P-63853, Case No. Plaintiff, 13 14 vs. 15 16 17 MATTHEW CATE, et al., 13cv2573 WQH (JLB) ORDER DISMISSING CIVIL ACTION FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. §§ 1915(e)(2)(B)(ii) AND 1915A(b)(1) AND FOR FAILING TO COMPLY WITH COURT ORDER REQUIRING AMENDMENT Defendants. 18 19 Tony Asberry (“Plaintiff”), a state prisoner currently incarcerated at the Richard 20 J. Donovan Correctional Facility (“RJD”) in San Diego, California is proceeding pro se 21 in this civil action pursuant to 42 U.S.C. § 1983. 22 I. 23 PROCEDURAL HISTORY 24 In his original Complaint, Plaintiff alleged various RJD officials violated his 25 Eighth Amendment right to be free from cruel and unusual punishment by providing 26 him inadequate medical care after he was transferred there in March 2012 from 27 California State Prison-Sacramento. Plaintiff further alleged RJD officials did so in 28 retaliation for his having filed CDC 602 inmate appeals and a prior civil rights action 1 13cv2573 WQH (JLB) 1 related to his medical care in the Eastern District of California. See Compl. (Doc. No. 2 1) at 2-14. On April 22, 2014, the Court granted Plaintiff’s Motion to Proceed in forma 3 4 pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a), but simultaneously dismissed his 5 Complaint sua sponte for failing to state a claim upon which relief could be granted 6 pursuant to 28 U.S.C. § 1915(e)(2) & § 1915A(b) (Doc. No. 15). Specifically, the 7 Court dismissed Plaintiff’s claims against Defendants Cate and Paramo because his 8 pleading “contain[ed] virtually no allegation that either of [them] knew of or took any 9 part” in personally causing him constitutional injury. Id. at 6-8. The Court further 10 found that while Plaintiff’s allegations of chronic lower back pain were sufficiently 11 pleaded to show an “objectively serious medical need” under the Eighth Amendment, 12 id. at 10, he failed to allege further facts to show that Defendants Walker, Silva, 13 Denbella, Chow, Newton, or Doe, acted with deliberate indifference to that need. Id. at 14 11-12. Finally, the Court found Plaintiff’s allegations of retaliation also failed to state 15 a claim because his Complaint did not contain sufficient factual matter to show any 16 named defendant took adverse action against him because he exercised a constitutional 17 right, that their actions failed to advance a legitimate correctional goal, or that his First 18 Amendment rights were in any way chilled as a result. Id. at 12-13. Plaintiff was 19 granted leave to file an Amended Complaint to correct these deficiencies, and 20 cautioned that because an amended pleading supersedes the original, any claims not re- 21 alleged would be considered waived. Id. at 13-14. On June 11, 2014, Plaintiff submitted a First Amended Complaint which deleted 22 23 reference to Defendants Cate, Denbella, and John Doe, Medical Doctor, but which re- 24 alleged his Eighth Amendment claims against previously-named Defendants Walker, 25 Silva, Chow, and Newton, and alleged additional access to courts claims against newly 26 added Defendants Beard, Benyard, Allemby, Rutledge, Hernandez, Toledo, Godinez, 27 Morales, Taylor, and unidentified Jane and John Does (Doc. No. 24). 28 /// 2 13cv2573 WQH (JLB) 1 On June 17, 2014, Plaintiff also filed a Motion for Preliminary Injunctive Relief 2 (Doc. No. 26) related to a “new” policy in RJD Fac-B Building 6, which he described 3 as a “campaign directed at keeping him awake.” Id. at 8. On June 26, 2014, Plaintiff 4 also filed a Motion requesting court-ordered “physical library use” (Doc. No. 29). 5 In the interim, on June 24, 2014, Plaintiff filed a Notice indicating his desire to 6 file a Second Amended Complaint (Doc. No. 27), based on claims that he “never 7 received” the Court’s April 22, 2014 Order dismissing his original complaint for 8 failing to state a claim, and therefore, he did not have the “opportunity to correct his 9 mistake[s]” when he filed his First Amended Complaint. Id. at 2. Therefore, when on 10 June 30, 2014, Plaintiff submitted a Second Amended Complaint (Doc. No. 31), the 11 Court accepted it for filing as the operative pleading in light of the liberality required 12 by FED.R.CIV.P. 15, Plaintiff’s pro se status, and his claims of non-receipt as alleged in 13 his June 24, 2014 Notice.1 See FED.R.CIV.P. 15(a)(2) (“The court should freely give 14 leave [to amend] when justice so requires.”); United States v. Webb, 655 F.2d 977, 979 15 (9th Cir. 1981) (“Rule 15’s policy of favoring amendments to pleadings should be 16 applied with extreme liberality.”) (internal quotation omitted); Eldridge v. Block, 832 17 F.2d 1132, 1135 (9th Cir. 1987) (applying Rule 15’s leave to amend standards “even 18 more liberally to pro se litigants.”). 19 On August 12, 2014, the Court denied Plaintiff’s Motions for library use and for 20 injunctive relief, and sua sponte dismissed his Second Amended Complaint pursuant to 21 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1). See Aug. 12, 2014 Order (ECF Doc. 22 No. 34). Specifically, the Court found that Plaintiff’s Second Amended Complaint 23 continued failed to state an Eighth Amendment inadequate medical care claim as to 24 1 The Court’s docket indicated that its April 22, 2014 Order (Doc. No. 15), was served upon Plaintiff by mail at the address currently listed in the docket, and was not returned as undeliverable by the United States Post Office. See In re Bucknum, 951 F.2d 26 204, 207 (9th Cir. 1991) (“Mail that is properly addressed, stamped, and deposited into the mail is presumed to be received by the addressee . . . The presumption can only be 27 overcome by clear and convincing evidence that the mailing was not, in fact, accomplished.”); see also Nunley v. City of Los Angeles, 52 F.3d 792, 796 (9th Cir. 1995) 28 (noting that where court’s docket included notations that a judgment was mailed and not returned by the post office, its receipt may be assumed). 25 3 13cv2573 WQH (JLB) 1 Defendants Paramo, Beard, Walker, Silva, Chow, and Newton, and therefore, found 2 further amendment as to those claims futile. Id. at 5-9, 16. The Court also found 3 Plaintiff’s Second Amended Complaint failed to state an access to courts claim against 4 Defendants Benyard, Allemby, Rutledge, Hernandez, Toledo, Godinez, Morales, and 5 Taylor, but granted him forty-five days leave in which to file a Third Amended 6 Complaint which addressed the deficiencies of pleading identified as to those claims 7 and as to those defendants only.2 Id. at 9-13, 17. Plaintiff was cautioned, however, 8 that “should his Third Amended Complaint still fail to state an access to courts claim 9 upon which relief may be granted, or should he otherwise fail to comply with [the 10 Court’s] Order, his civil action w[ould] be dismissed in its entirety, without further 11 leave to amend, and [might] hereafter be counted as a “strike” against him pursuant to 12 28 U.S.C. § 1915(g).” Id. at 18 n.6. More than a month has passed since Plaintiff’s Third Amended Complaint was 13 14 due; however, he has not filed a Third Amended Complaint. In addition, because 15 Plaintiff has previously alleged to have not received mail issued by the Court in this 16 case, it notes the docket reflects a copy of its August 12, 2014 Order was delivered by 17 U.S. Mail to Plaintiff at the following address: Tony Asberry, P-63853, RJ Donovan 18 Correctional Facility, PO Box 799003, San Diego, CA 92179, on the same day, and 19 that it, like all previous Orders issued in this case, has not been returned as 20 undeliverable (Doc. No. 34). See In re Bucknum, 951 F.2d at 207; Nunley, 52 F.3d at 21 796. 22 /// 23 /// 24 /// 25 26 2 Because Plaintiff’s Second Amended Complaint failed to included previously named Defendants Cate and Denbella as parties, the Court noted any purported claim as 27 to them was considered waived. See Aug. 12, 2014 Order (ECF Doc. No. 34) at 6 n.3 (citing King v. Atiyeh, 814 F.2 565, 567 (9th Cir, 1987)). The Court further dismissed all 28 unidentified Doe Defendants based on Plaintiff’s failure to allege any plausible claim for relief against them. Id. at 13-14, 17. 4 13cv2573 WQH (JLB) 1 II. 2 Conclusion and Order 3 Accordingly, because Plaintiff has failed to comply with the Court’s August 12, 4 2014 Order directing him to file a Third Amended Complaint within 45 days, it hereby 5 DISMISSES this civil action without prejudice for failing to state a claim pursuant to 6 28 U.S.C. §§ 1915(e)(2)(B)(ii) & 1915A(b)(1) and for failing to comply with a Court 7 Order. 8 9 10 11 12 13 The Clerk is directed to enter a judgment of dismissal without prejudice and close the case. IT IS SO ORDERED. DATED: October 28, 2014 WILLIAM Q. HAYES United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 13cv2573 WQH (JLB)

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