(PC) Remon v. Kernan ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JASON REMON, No. 2:18-cv-01869-JAM-CKD P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 SCOTT KERNAN, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this federal civil 18 rights action filed pursuant to 42 U.S.C. § 1983. By order filed March 25, 2019, the undersigned 19 screened plaintiff’s complaint and dismissed it with leave to amend. ECF No. 9. Currently 20 pending before the court is plaintiff’s first amended complaint filed on April 24, 2019. ECF No. 21 13. 22 I. Screening Requirement 23 The court is required to screen complaints brought by prisoners seeking relief against a 24 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 25 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 26 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 27 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 28 ///// 1 II. Allegations in the First Amended Complaint 2 On or about November 21, 2013, plaintiff’s request to receive Jewish kosher meals as a 3 CDCR inmate was approved. ECF No. 13 at 6, 9. The gravamen of plaintiff’s first amended 4 complaint is based on the failure to provide him with kosher meals specific to Passover during the 5 first four days of the Jewish holiday in 2018. ECF No. 13 at 3. Plaintiff names six individual 6 defendants as well as one John Doe defendant who received a copy of a February 8, 2018 7 Memorandum concerning Inmate Participation in Passover 2018. ECF No. 13 at 12. Plaintiff 8 generally alleges that this memorandum should have been issued earlier and/or was not followed 9 to ensure that he received “Kosher for Passover” food during all 8 days of the religious holiday. 10 III. Legal Standards 11 There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or 12 connection between a defendant’s actions and the claimed deprivation. Rizzo v. Goode, 423 U.S. 13 362, 371, 376 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980). “Vague and 14 conclusory allegations of official participation in civil rights violations are not sufficient.” Ivey v. 15 Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982) (citations omitted). 16 IV. Analysis 17 The court has reviewed plaintiff’s first amended complaint and finds that it fails to state a 18 claim upon which relief can be granted under federal law. Plaintiff was previously advised of the 19 appropriate legal standards governing his claims in this court’s prior screening order dated March 20 25, 2019. Specifically, plaintiff was advised that “[t]he CDCR Memorandum attached to 21 plaintiff’s complaint cannot provide a basis for individual liability absent specific allegations of 22 each defendant’s participation.” ECF No. 9 at 5. Plaintiff has not cured this or any other 23 deficiencies identified in the prior screening order. In the first amended complaint, plaintiff has 24 added allegations that defendants violated specific CDCR policy and procedures. However, this 25 does not state any constitutional claim for relief. All of the allegations in the first amended 26 complaint are completely conclusory and fail to specifically identify what specific actions each 27 named defendant took which caused plaintiff’s injury. Plaintiff repeatedly states that each 28 defendant’s “actions and omissions to act” kept him from practicing his religious beliefs during 1 Passover. See ECF No. 13 at 3-5. Despite clear directions from the court that he needed to 2 explain what each defendant did, plaintiff has once again failed to allege any specific actions by 3 any defendant other than their general job descriptions within CDCR. That is insufficient to link 4 each defendant to the alleged constitutional violations. See Ivey v. Bd. Of Regents, 673 F.2d at 5 268. For all these reasons, the undersigned recommends dismissing plaintiff’s first amended 6 complaint. 7 V. No Leave to Amend 8 If the court finds that a complaint or claim should be dismissed for failure to state a claim, 9 the court has discretion to dismiss with or without leave to amend. Leave to amend should be 10 granted if it appears possible that the defects in the complaint could be corrected, especially if a 11 plaintiff is pro se. Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc); Cato v. 12 United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (“A pro se litigant must be given leave to 13 amend his or her complaint, and some notice of its deficiencies, unless it is absolutely clear that 14 the deficiencies of the complaint could not be cured by amendment.” (citation omitted). 15 However, if, after careful consideration, it is clear that a claim cannot be cured by amendment, 16 the Court may dismiss without leave to amend. Cato, 70 F.3d at 1105-06. 17 In light of plaintiff’s failures to provide additional information about his claims despite 18 specific instructions from the court, the undersigned finds that further leave to amend would be 19 futile and the first amended complaint should be dismissed without leave to amend. Hartmann v. 20 CDCR, 707 F.3d 1114, 1130 (9th Cir. 2013) (“A district court may deny leave to amend when 21 amendment would be futile.”). The repetitious filing of conclusory pleadings does not warrant 22 granting plaintiff additional leave to amend. 23 VI. Plain Language Summary for Pro Se Party 24 The following information is meant to explain this order in plain English and is not 25 intended as legal advice. 26 It is recommended that your complaint be dismissed because it fails to state any 27 cognizable claim for relief. Allowing you to further amend the complaint would be futile because 28 you were not able to cure any of the previously identified deficiencies with the original 1 | complaint. As a result, it is recommended that you not be granted further leave to amend your 2 | complaint and that this civil action be closed. If you disagree with this recommendation, you 3 | have 14 days to explain why it is not the correct result. Label your explanation as “Objections to 4 | the Magistrate Judge’s Findings and Recommendations.” 5 In accordance with the above, IT IS HEREBY RECOMMENDED that: 6 1. Plaintiff's first amended complaint (ECF No. 13) be dismissed without leave to amend 7 for failing to state a claim. 8 2. The Clerk of Court be directed to close this case. 9 These findings and recommendations are submitted to the United States District Judge 10 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days 11 | after being served with these findings and recommendations, any party may file written 12 | objections with the court and serve a copy on all parties. Such a document should be captioned 13 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 14 | objections shall be served and filed within fourteen days after service of the objections. The 15 | parties are advised that failure to file objections within the specified time may waive the right to 16 | appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 17 | Dated: February 6, 2020 CA rd ht / (g—, CAROLYN K.DELANEY 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 12/remo1869.screeningF&R.docx 27 28