Diaz v. McGee et al

Filing 9

ORDER (1) Vacating Judgment 8 ; and (2) Dismissing 6 Second Amended Complaint for Failing to State a Claim. Good cause appearing, the Court:1. Vacates the Clerk's Judgment entered on 1/17/2018 pursuant to Fed.R.Civ.P. 60(a); 2. Dismisses Pla intiff's Second Amended Complaint in its entirety for failing to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b). Because the Court finds further amendment futile, leave to amend is denied. Signed by Judge Larry Alan Burns on 1/26/2018.(All non-registered users served via U.S. Mail Service)(jdt)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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RONALD C. DIAZ,
CDCR #AD2009

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ORDER:

Plaintiff,

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

v.

(1) VACATING JUDGMENT
PURSUANT TO FRCP 60(a); and

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

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

Defendants.

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I.

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

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

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

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

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

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Correctional Facility (“RJD”) in San Diego, California. (Compl. at 1.) In addition,
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Plaintiff filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C.

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§ 1915(a). (ECF No. 2.)

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

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

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

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

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

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(ECF No. 4.) However, once again, the Court found that Plaintiff failed to state a claim

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upon which relief could be granted pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A.

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(ECF No. 5.)

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Plaintiff was again given leave to file an amended pleading. (Id.) However, the

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time passed and Plaintiff had not complied with the Court’s Order. On January 12, 2018,

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the Court dismissed the entire action for the reasons set forth in the Court’s November

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13, 2017 Order and for failing to comply with a Court Order. (ECF No. 7.) In the

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meantime, the Court received and filed Plaintiff’s Second Amended Complaint (“SAC”).

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(ECF No. 6.) Because it does appear that Plaintiff signed his SAC on December 28,

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2017, the Court finds this pleading to be timely. Houston v. Lack, 487 U.S. 266, 270-72

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(1988) (deeming notice of appeal to be “filed” when prisoner delivers it to prison

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authorities for forwarding to the district court); Douglas v. Noelle, 567 F.3d 1103, 1107

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(9th Cir. 2009) (“Houston mailbox rule applies to § 1983 suits filed by pro se

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prisoners.”). Therefore, the Court VACATES the judgment entered on January 17, 2018

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pursuant to Fed.R.Civ.P. 60(a) and will conduct the sua sponte screening of Plaintiff’s

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SAC pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A.

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II.

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

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A.

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

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

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

Standard of Review

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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standard. Id.; see also Moss v. U. S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

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

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

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

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

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

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

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

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

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

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

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

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

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

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(9th Cir. 1982).

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

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

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

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

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

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

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

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

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

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B.

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Plaintiff’s Allegations
On August 28, 2015, Plaintiff went to “medical for ‘chest pains’” and while he was

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there he “became suicidal.” (SAC at 4.) Plaintiff was sent to a “crisis bed.” (Id.)

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Plaintiff alleges that officers failed to pack up the personal belongings in his cell and as a

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result, other inmates “stole all of Plaintiff’s property.” (Id.) When Plaintiff returned, he

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filed a grievance with Correctional Officer Rodgers 1 who told Plaintiff that “he was

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willing” to get Plaintiff “reimbursed for all his lost property.” (Id. at 3.) Rodgers told

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Plaintiff that he had to follow up by filing another grievance with Rodgers’s supervisor,

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Defendant McGee. (Id.)

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Plaintiff claims McGee “lied” and told Plaintiff he “never received” Plaintiff’s

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grievance. (Id.) He further told Plaintiff that he had to start the grievance process “all

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over again.” (Id.) Plaintiff alleges it “became clear” that McGee was retaliating against

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him because McGee “hates all prisoners” and is part of a “wanna be gang” known as the

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“Green Slobbs.” (Id.) Plaintiff also claims he has a “history for speaking up” and has

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“filed numerous staff misconduct complaints” against McGee. (Id.)

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Rodgers is not a named Defendant.
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C.

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Retaliation
Throughout Plaintiff’s SAC, he claims that Defendants are retaliating against him

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by refusing to reimburse him for the loss of his property. Specifically, Plaintiff claims

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that he has a “history for speaking up” and filing “numerous staff misconduct complaints

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on Sgt. McGee, Sgt. Ruthledge and [their] partners for committing crimes on Donovan

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prisoners, etc.” (SAC at 3.)

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

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

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

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

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

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

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

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

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

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Here, Plaintiff does not sufficiently allege facts to support his claim that he was

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engaging in “protected conduct.” (Id.) Rather, Plaintiff only generally states that he has

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a history of filing complaints but he does not provide further detail as to the nature of the

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

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grievances filed by Plaintiff. There is no causal connection sufficiently alleged between

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the purported “protected conduct” and the actions allegedly taken on the part of any of

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the named Defendants.

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

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

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

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for failing to state a claim.

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D.

Fourteenth Amendment Equal Protection claims
Plaintiff also alleges that his right to equal protection under the law was violated

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by Defendants. (See SAC at 5.) Under the Equal Protection Clause, Plaintiff must allege

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facts showing or intimating he was discriminated against because of his race, religion, or

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national origin. See Ashcroft, 556 U.S. at 681. Allegations of discrimination need be

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“plausible,” not merely “conceivable.” Id. “A pleading that offers labels and conclusions

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or a formulaic recitation of the elements of a cause of action will not do.”” Id. at 678

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(internal citation and punctuation omitted).

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“To state a claim under § 1983 for a violation of the Equal Protection Clause of the

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Fourteenth Amendment plaintiff must show that the defendant[] acted with an intent or

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purpose to discriminate against [him] based on membership in a protected class.” Furnace

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v. Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013) (internal quotation and citation omitted).

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To support such a claim, Plaintiff must allege facts to plausibly show discriminatory

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intent. Id.; see also Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003); FDIC v.

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Henderson, 940 F.2d 465, 471 (9th Cir. 1991) (essential element of an equal protection

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claim is to allege that officials intentionally acted in a discriminatory manner, and with a

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discriminatory purpose).

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Here, Plaintiff’s SAC is devoid of any allegations that there was some intentional

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action taken to discriminate against Plaintiff. Specifically, Plaintiff must allege that

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Defendants took some course of action against him “because of,’ not merely ‘in spite of’

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[the action’s] adverse effects upon an identifiable group,” Feeney, 442 U.S. at 279.

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“[P]urposeful discrimination requires more than ‘intent as volition or intent as

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awareness of consequences.’” Iqbal, 556 U.S. at 676 (quoting Personnel Administrator of

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Mass. v. Feeney, 442 U.S. 256, 279 (1979)). To state an equal protection claim,

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Plaintiff’s SAC must contain sufficient “factual content” to plausibly show his treatment

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was “invidiously dissimilar to that received by other inmates.” Seals v. Russell, No. C 04-

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1569 SBA, 2007 WL 1697319 *7 (N.D. Cal. June 12, 2007). The discriminatory act must

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be purposeful. Id. Plaintiff’s SAC contains no such claims.
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Therefore, the Court finds Plaintiff’s Fourteenth Amendment equal protection

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allegations fail to state a claim upon which § 1983 can be granted.

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E.

Conspiracy claims

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Plaintiff also alleges that Defendants “participated in a conspiracy” to deny

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Plaintiff “of his reimbursement of all his lost property.” (SAC at 6.) 42 U.S.C. § 1985

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proscribes conspiracies to interfere with certain civil rights. Karim-Panahi v. Los

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Angeles Police Department, 839 F.2d 621, 626 (9th Cir. 1988). In order to state a claim

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for conspiracy to deny his right to equal protection, Plaintiff must allege that two or more

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Defendants conspired “for the purpose of impeding, hindering, obstructing, or defeating,

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in any manner, the due course of justice in any State or Territory, with intent to deny

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[him] the equal protection of the law.” 42 U.S.C. § 1985(2). The absence of a § 1983

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deprivation of rights precludes a § 1985 conspiracy claim based on the same allegations.

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Cassettari v. Nevada County, Cal., 824 F.2d 735, 739 (9th Cir. 1987); see also Mahaney

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v. Warren County, 206 F.3d 770, 772 (8th Cir. 2000) (holding that “bare” allegations are

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insufficient to support a claim under § 1985 for civil conspiracy). Accordingly, for the

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same reasons set forth above regarding why Plaintiff has failed to state § 1983 claim, he

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has also failed to state a conspiracy claim.

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III.

Conclusion and Orders

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Good cause appearing, the Court:

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1.

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VACATES the Clerk’s Judgment entered on January 17, 2018 pursuant to

Fed.R.Civ.P. 60(a);
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DISMISSES Plaintiff’s Second Amended Complaint in its entirety for

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failing to state a claim upon which relief may be granted pursuant to 28 U.S.C.

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§ 1915(e)(2)(B) and § 1915A(b). Because the Court finds further amendment futile, leave

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to amend is DENIED. See Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 339 (9th Cir.

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1996) (denial of a leave to amend is not an abuse of discretion where further amendment

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would be futile).

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3.

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

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

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Coppedge v. United States, 369 U.S. 438, 445 (1962); Gardner v. Pogue, 558 F.2d 548,

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550 (9th Cir. 1977) (indigent appellant is permitted to proceed IFP on appeal only if

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appeal would not be frivolous).

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The Clerk shall enter judgment and close the file.

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IT IS SO ORDERED.
Dated: January 26, 2018
Hon. Larry Alan Burns
United States District Judge

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