(PC) Eckstrom v. Hoshino ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CARL ECKSTROM, No. 2:16-cv-00538-TLN-EFB 12 Plaintiff, 13 v. ORDER 14 MARTIN HOSHINO, 15 Defendant. 16 17 Plaintiff Carl Eckstrom (“Plaintiff”), a state prisoner proceeding pro se, has filed this civil 18 rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States 19 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On August 27, 2018, the magistrate judge filed findings and recommendations which were 21 served on Plaintiff and which contained notice to Plaintiff that any objections to the findings and 22 recommendations were to be filed within fourteen days. (ECF No. 26.) On September 13, 2018, 23 Plaintiff filed objections to the findings and recommendations. (ECF No. 29.) Plaintiff has since 24 filed a Motion for Leave to File a Third Amended Complaint (ECF No. 31), a Third Amended 25 Complaint (ECF No. 32), and a Motion for Ruling on Objections to Findings and 26 Recommendations (ECF No. 33). 27 This Court reviews de novo those portions of the proposed findings of fact to which 28 objection has been made. 28 U.S.C. § 636(b)(1); McDonnell Douglas Corp. v. Commodore 1 Business Machines, 656 F.2d 1309, 1313 (9th Cir. 1981), cert. denied, 455 U.S. 920 (1982). As 2 to any portion of the proposed findings of fact to which no objection has been made, the Court 3 assumes its correctness and decides the motions on the applicable law. See Orand v. United 4 States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are 5 reviewed de novo. See Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983). 6 Having carefully reviewed the entire file under the applicable legal standards, the Court 7 finds the Findings and Recommendations to be supported by the record and by the magistrate 8 judge’s analysis. 9 The issues with the Second Amended Complaint (ECF No. 23) identified by the screening 10 order (ECF No. 26 at 3–4) are not ameliorated by Plaintiff’s objections or his proposed Third 11 Amended Complaint.1 Notably, Plaintiff has still failed to allege how any of the named 12 Defendants were aware of any specific and current threat to his safety posed by the Mexican 13 Mafia gang. Plaintiff refers to various exhibits and asserts vague and generalized allegations, 14 such as, “there was a grooming of the record to support [prison staff’s desired conclusion]” (ECF 15 No. 29 at 12), but these contentions remain unsupported by any non-conclusory factual 16 allegations. It is clear to the Court that Plaintiff disagrees with the prison staff’s assessment as to 17 the danger posed to his person by the Mexican Mafia. However, such disagreement is not in and 18 of itself indicative of deliberate indifference which, instead, requires a defendant’s subjective 19 awareness of a risk. See Farmer v. Brennan, 511 U.S. 825, 837 (1994) (“[T]he official must both 20 be aware of facts from which the inference could be drawn that a substantial risk of serious harm 21 exists, and he must also draw the inference.”). Plaintiff has failed to sufficiently allege facts 22 showing that each of the named Defendants had such awareness. Further, he has had multiple 23 opportunities to state a viable claim and has repeatedly failed to do so. 24 /// 25 /// 26 1 The Court has reviewed the proffered Third Amended Complaint. Because it does not fix the 27 infirmities noted in the Findings and Recommendations, the Court declines to allow the amendment. Carrico v. City of S.F., 656 F.3d 1002, 1008 (9th Cir. 2011) (leave to amend may be 28 denied if the proposed amendment is futile because it would be subject to dismissal). 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. The Findings and Recommendations filed August 27, 2018 (ECF No. 26), are adopted 3 in full; 4 2. Plaintiff’s Second Amended Complaint (ECF No. 23) is DISMISSED, without leave to 5 amend, for failure to state a cognizable claim; 6 3. Plaintiff’s Motion for Leave to File a Third Amended Complaint (ECF No. 31) is 7 DENIED; 8 4. Plaintiff’s Motion for Ruling (ECF No. 33) is DENIED as moot; and 9 3. The Clerk of the Court is directed to close this case. 10 IT IS SO ORDERED. 11 Dated: January 23, 2020 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28