Diaz v. McGee et al

Filing 5

ORDER DISMISSING First Amended Complaint for Failing to State a Claim Pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A. The Court dismisses Plaintiff's First Amended Complaint in its entirety for failing to state a claim upon which relie f may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b), and grants him forty-five (45) days leave from the date of this Order in which to file an Amended Complaint which cures all the deficiencies of pleading noted. Signed by Judge Larry Alan Burns on 11/13/2017. (1983 form mailed to Plaintiff)(All non-registered users served via U.S. Mail Service)(lrf)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11
12

RONALD C. DIAZ,
CDCR #AD2009

15
16
17

ORDER DISMISSING FIRST
AMENDED COMPLAINT FOR
FAILING TO STATE A CLAIM
PURSUANT TO 28 U.S.C. § 1915(e)(2)
AND § 1915A

Plaintiff,

13
14

Case No.: 3:17-cv-1772-LAB-BLM

v.
N. McGEE; S. RUTHLEDGE; D.
HOLBROOK; J. WILBORN; CALVERT;
RICHARD J. DONOVAN
CORRECTIONAL FACILTY ,
Defendants.

18
19
20
21
22
23

I.

Procedural History
On August 31, 2017, Ronald C. Diaz (“Plaintiff”), a state inmate currently

24

incarcerated at California State Prison - Los Angeles County located in Lancaster,

25

California and proceeding pro se, filed a civil rights Complaint (“Compl.”) pursuant to 42

26

U.S.C. § 1983. (ECF No. 1.) He alleged violation of his First, Eighth and Fourteenth

27

Amendment rights when he was previously housed at the Richard J. Donovan

28

Correctional Facility (“RJD”) in San Diego, California. (Compl. at 1.) In addition,
1
3:17-cv-1772-LAB-BLM

1

Plaintiff filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C.

2

§ 1915(a). (ECF No. 2.)

3

The Court granted Plaintiff’s Motion to Proceed IFP and simultaneously dismissed

4

his Complaint for failing to state a claim upon which relief could be granted pursuant to

5

28 U.S.C. § 1915(e)(2) and § 1915A. (ECF No. 4.) Plaintiff was granted leave to file an

6

amended pleading in order to correct the deficiencies of pleading identified in the Court’s

7

Order. (Id.) On October 30, 2017, Plaintiff filed his First Amended Complaint (“FAC”).

8

(ECF No. 4.)

9

II.

Sua Sponte Screening per 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)

10

A.

11

As the Court previously informed Plaintiff, “[t]he Court shall review, before

12

docketing, if feasible or, in any event, as soon as practicable after docketing,” complaints

13

filed by all persons proceeding IFP, and by those who are “incarcerated or detained in

14

any facility [and] accused of, sentenced for, or adjudicated delinquent for, violations of

15

criminal law or the terms or conditions of parole, probation, pretrial release, or

16

diversionary program.” See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). The Court must sua

17

sponte dismiss complaints, or any portions thereof, which are frivolous, malicious, fail to

18

state a claim, or which seek damages from defendants who are immune. See 28 U.S.C.

19

§§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000).

20

Standard of Review

All complaints must contain “a short and plain statement of the claim showing that

21

the pleader is entitled to relief.” FED.R.CIV.P. 8(a)(2). Detailed factual allegations are

22

not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by

23

mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678

24

(2009), citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Determining

25

whether a complaint states a plausible claim for relief [is] . . . a context-specific task that

26

requires the reviewing court to draw on its judicial experience and common sense.” Id. at

27

679. The “mere possibility of misconduct” falls short of meeting the Iqbal plausibility

28

standard. Id.; see also Moss v. U. S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).
2
3:17-cv-1772-LAB-BLM

1

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

2

veracity, and then determine whether they plausibly give rise to an entitlement to relief.”

3

Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000)

4

(“Under § 1983, when determining whether a complaint states a claim, a court must

5

accept as true all allegations of material fact and must construe those facts in the light

6

most favorable to the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.

7

1998) (noting that § 1915(e)(2) “parallels the language of Federal Rule of Civil

8

Procedure 12(b)(6)”). However, while the court has an “obligation . . . where the

9

petitioner is pro se, particularly in civil rights cases, to construe the pleadings liberally

10

and to afford the petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342

11

(9th Cir. 2010), citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en

12

banc), it may not, in so doing, “supply essential elements of the claim that were not

13

initially pled.” Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268

14

(9th Cir. 1982).

15

“Section 1983 creates a private right of action against individuals who, acting

16

under color of state law, violate federal constitutional or statutory rights.” Devereaux v.

17

Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of

18

substantive rights, but merely provides a method for vindicating federal rights elsewhere

19

conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks

20

and citations omitted). “To establish § 1983 liability, a plaintiff must show both

21

(1) deprivation of a right secured by the Constitution and laws of the United States, and

22

(2) that the deprivation was committed by a person acting under color of state law.” Tsao

23

v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012).

24

B.

25

Plaintiff’s Allegations
On August 28, 2015, Plaintiff went to “medical for chest pains” and was later “sent

26

to C.T.C. crisis bed for suicidal ideations.” (FAC at 3.) He further claims that “T.A.A.

27

officers (never) called Plaintiff’s unit officer, Rodgers, to remove and pack up Plaintiff’s

28
3
3:17-cv-1772-LAB-BLM

1

property” from his cell. (Id.) Instead, Correctional Officer Rodgers 1 “went home and all

2

of Plaintiff’s property” was “stolen by Plaintiff’s then cellie.” (Id.) Plaintiff discovered

3

that his property had been stolen when he returned to RJD two weeks later. (Id.)

4

Plaintiff claims that Rodgers admitted he was negligent in failing to secure

5

Plaintiff’s property. (Id. at 4.) However, when Plaintiff sought reimbursement for his

6

property, he claims Defendants McGee, Ruthledge and Holbrook denied his requests and

7

his grievances. (Id. at 4-5.) He further claims that these denials were in retaliation for

8

Plaintiff “reporting staff misconduct on them and [their] partners.” (Id.) On June 20,

9

2016, Plaintiff’s request for reimbursement of his lost items was granted by RJD Chief

10

Deputy Warden, G. Stratton. (Id., Ex. 8, ECF No. 4 at 35-37, Second Level Appeal

11

Response dated June 20, 2016.)

12

C.

Waived Claims and Defendants

13

In the Court’s September 25, 2017 Order, Plaintiff was instructed that any

14

“Defendants not named and any claim not re-alleged in his Amended Complaint will be

15

considered waived.” (ECF No. 3 at 8, citing S.D. CAL. CIVLR 15.1; Hal Roach Studios,

16

Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended

17

pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir.

18

2012) (noting that claims dismissed with leave to amend which are not re-alleged in an

19

amended pleading may be “considered waived if not repled.”).

20

In Plaintiff’s FAC, he no longer names Defendants Calvert and Wilborn. (See

21

FAC at 1-2.) In addition, he no longer alleges any Fourteenth Amendment claims in his

22

FAC. Therefore, Plaintiff’s Fourteenth Amendment claims and the claims against

23

Defendants Calvert and Wilborn are DISMISSED.

24

///

25

///

26

///

27
28

1

Rodgers is not a named Defendant.
4
3:17-cv-1772-LAB-BLM

1

D.

Retaliation

2

Plaintiff alleges that the Defendants retaliated against him because he has been

3

reporting “serious staff misconduct and filing 602 complaints” throughout the “years

4

while at Donovan Prison.” (FAC at 3.)

5

Retaliation against a prisoner for exercising his rights to speech or to petition the

6

government may violate the First Amendment. See Rizzo v. Dawson, 778 F.2d 527, 532

7

(9th Cir. 1985); see also Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989);

8

Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995). “Within the prison context, a viable

9

claim of First Amendment retaliation entails five basic elements: (1) An assertion that a

10

state actor took some adverse action against an inmate (2) because of (3) that prisoner’s

11

protected conduct, and that such action (4) chilled the inmate’s exercise of his First

12

Amendment rights, and (5) the action did not reasonably advance a legitimate

13

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

14

Here, Plaintiff does not allege that any Defendants took “adverse action” against

15

him because he was engaging in “protected conduct.” Id. Plaintiff acknowledges that he

16

was ultimately reimbursed for his property and therefore, he ultimately did not suffer any

17

“adverse action.” In addition, Plaintiff only generally states that he has a history of filing

18

complaints but he does not provide further detail as to the nature of the grievances and

19

whether the Defendants named in this litigation were directly aware of the grievances

20

filed by Plaintiff. The only grievance Plaintiff refers to as to Defendant McGee is dated

21

April 27, 2016 which is a date that is after the alleged acts of retaliation. (See FAC at 30,

22

Inmate/Parolee Request for Interview dated Apr. 27, 2016.) Therefore, Plaintiff is unable

23

to show that the actions taken by the named Defendants were due to Plaintiff engaging in

24

“protected conduct.”

25

As set forth above, the “mere possibility of misconduct” or “unadorned, the

26

defendant-unlawfully-harmed me accusation[s]” fall short of meeting Iqbal’s plausibility

27

standard. Iqbal, 556 U.S. at 678. Therefore, Plaintiff’s claims of retaliation are dismissed

28

for failing to state a claim.
5
3:17-cv-1772-LAB-BLM

1
2

III.

3

Leave to Amend
Because Plaintiff is proceeding without counsel, and he has now been provided

4

with notice of his Complaint’s deficiencies, the Court will grant him leave to amend. See

5

Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should not

6

dismiss a pro se complaint without leave to amend [pursuant to 28 U.S.C.

7

§ 1915(e)(2)(B)(ii)] unless ‘it is absolutely clear that the deficiencies of the complaint

8

could not be cured by amendment.’”) (quoting Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th

9

Cir. 2012)).

10

IV.

Conclusion and Orders

11

Good cause appearing, the Court:

12

1.

DISMISSES Plaintiff’s First Amended Complaint in its entirety for failing

13

to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)

14

and § 1915A(b), and GRANTS him forty-five (45) days leave from the date of this Order

15

in which to file an Amended Complaint which cures all the deficiencies of pleading

16

noted. Plaintiff’s Amended Complaint must be complete by itself without reference to his

17

original pleading, and must comply with S.D. CAL. CIVLR 8.2(a). Defendants not named

18

and any claim not re-alleged in his Amended Complaint will be considered waived. See

19

S.D. CAL. CIVLR 15.1; Hal Roach Studios, Inc., 896 F.2d at 1546; Lacey, 693 F.3d at

20

928.

21
22
23
24
25
26

2.

The Clerk of Court is directed to mail Plaintiff a copy of a court approved

form § 1983 complaint.
IT IS SO ORDERED.
Dated: November 13, 2017
Hon. Larry Alan Burns
United States District Judge

27
28
6
3:17-cv-1772-LAB-BLM