McCain v. Palmer et al

Filing 9

ORDER that 8 Plaintiff's Second Amended Complaint is DISMISSED. IT IS FURTHER ORDERED that the Clerk shall enter judgment accordingly and close this case. Signed by Judge Gloria M. Navarro on 12/28/10. (Copies have been distributed pursuant to the NEF - EDS)

McCain v. Palmer et al

Doc. 9

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 This is a prisoner civil rights action filed pursuant to 42 U.S.C. § 1983. On November 12, 2010, plaintiff's first amended complaint was dismissed with leave to amend his Fourteenth Amendment equal protection claim only (docket #4). It appears that plaintiff filed the same second amended complaint twice, on November 23, 2010 (docket #7) and on December 22, 2010 (docket #8). The court now reviews plaintiff's second amended complaint (docket #8). I. Screening Standard Pursuant to the Prisoner Litigation Reform Act (PLRA), federal courts must dismiss a prisoner's claims, "if the allegation of poverty is untrue," or if the action "is frivolous or malicious," "fails to state a claim on which relief may be granted," or "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2). A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Nietzke v. Williams, 490 U.S. 319, 325 (1989). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Id. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989). Dismissal of a complaint for failure to state a claim upon which relief may be granted is vs. E. PALMER, et al., Defendants. AARON MCCAIN #1034185 Plaintiff, ) ) ) ) ) ) ) ) ) ) /

2:10-cv-01251-GMN-LRL ORDER

Dockets.Justia.com

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provided for in Federal Rule of Civil Procedure 12(b)(6), and the court applies the same standard under Section 1915(e)(2) when reviewing the adequacy of a complaint or amended complaint. Review under Rule 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Laboratory Corp. of America, 232 F.3d 719, 723 (9th Cir. 2000). A complaint must contain more than a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965 (2007). "The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id. In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to plaintiff and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). Allegations in a pro se complaint are held to less stringent standards than formal pleadings drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5, 9 (1980); Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam); see also Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). All or part of a complaint filed by a prisoner may be dismissed sua sponte, however, if the prisoner's claims lack an arguable basis either in law or in fact. This includes claims based on legal conclusions that are untenable (e.g. claims against defendants who are immune from suit or claims of infringement of a legal interest which clearly does not exist), as well as claims based on fanciful factual allegations (e.g. fantastic or delusional scenarios). See Neitzke, 490 U.S. at 327-28; see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). Moreover, "a finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them." Denton v. Hernandez, 504 U.S. 25, 33 (1992). When a court dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend the complaint with directions as to curing its deficiencies, unless it is clear from the face of the complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 this case.

To sustain an action under section 1983, a plaintiff must show (1) that the conduct complained of was committed by a person acting under color of state law; and (2) that the conduct deprived the plaintiff of a federal constitutional or statutory right." Hydrick v. Hunter, 466 F.3d 676, 689 (9th Cir. 2006). II. Instant Complaint Plaintiff, who is incarcerated at High Desert State Prison ("HDSP"), has sued HDSP Warden Anthony M. Scillia, Assistant Warden of Operations ("AWO") Jeffrey Patterson, acting Assistant Warden of Programs ("AWP") Jennifer Nash, laundry room supervisor E. Palmer and Does 1and 2 unit case workers. The court dismissed all claims in plaintiff's first amended complaint and granted him leave to amend only his Fourteenth Amendment equal protection claim (see docket #4). However, in his second amended complaint, he re-asserts only his claim that when he needed new boots prison personnel offered him re-used boots, which constitutes cruel and unusual punishment in violation of his Eighth Amendment rights. As this court previously dismissed plaintiff's Eighth Amendment allegations for failure to state a claim for which relief may be granted, plaintiff's second amended complaint is dismissed on the same basis. III. Conclusion IT IS THEREFORE ORDERED that plaintiff's second amended complaint (docket #8) is DISMISSED for failure to state a claim for which relief may be granted. IT IS FURTHER ORDERED that the Clerk shall enter judgment accordingly and close

DATED this 28th day of December, 2010.

Gloria M. Navarro United States District Judge

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