(PC) Neale v. Sherman ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSEPH NEALE, JR., No. 1:18-cv-00342-DAD-BAM (PC) 12 Plaintiff, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 14 STU SHERMAN, et al., (Doc. Nos. 14, 23, 24) 15 Defendants. 16 17 Plaintiff Joseph Neale, Jr. is a state prisoner proceeding pro se and in forma pauperis in 18 this civil rights action pursuant to 42 U.S.C. § 1983. This 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 February 5, 2019, the assigned magistrate judge issued findings and recommendations 21 recommending dismissal of this action due to plaintiff’s failure to state a claim upon which relief 22 may be granted. (Doc. No. 14.) The findings and recommendations were served on plaintiff and 23 contained notice that any objections thereto were to be filed within fourteen (14) days after 24 service. (Id. at 11.) Following the granting of four extensions of time to do so, plaintiff timely 25 filed objections on August 12, 2019. (Doc. No. 26.) 26 On July 16, 2019, the assigned magistrate judge issued another set of findings and 27 recommendations recommending that plaintiff’s motion for preliminary injunction be denied. 28 (Doc. No. 24.) Those findings and recommendations were served on plaintiff and contained 1 notice that any objections thereto were to be filed within fourteen (14) days after service. (Id. at 2 4.) No objections have been filed in response to those findings and recommendations, and the 3 time in which to do so has now passed. 4 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 5 court has conducted a de novo review of this case. Having carefully reviewed the entire file, 6 including plaintiff’s objections, the court finds both pending findings and recommendations to be 7 supported by the record and proper analysis. 8 The undersigned is not persuaded by plaintiff’s difficult to decipher objections to the 9 recommendation that this action be dismissed due to his failure to state a claim upon which relief 10 may be granted. Those objections largely rest on plaintiff’s suggestion that all of the named 11 defendants, including Kandkhorova and Ogbehis and their supervisors, conspired to deny him 12 adequate care and to cover up the fact that they were doing so. (Doc. No. 26 at 4–6.) However, 13 in advancing this argument plaintiff fails to point to any factual allegations in his complaint that 14 would allow the court to infer that such a conspiracy existed. (Id.) See also Ashcroft v. Iqbal, 15 556 U.S. 662, 678 (2009). Nor has plaintiff pled facts supporting his bald assertion that 16 defendants Peterson and Plier were deliberately indifferent to his serious medical need by 17 knowingly failing to respond to an inmate’s request for help. (See Doc. No. 26 at 7.) 18 Similarly, plaintiff argues that defendant Kandkhorova discriminated against him based on 19 race, but provides no factual allegations to support this conclusory assertion. (Id. at 8–9.) 20 Plaintiff also contends that defendant Kandkhorova and Nurse Salaza denied him proper medical 21 care due to “a lack of training” amounting to deliberate indifference. (Id. at 9.) However, 22 plaintiff has failed to allege any violation of policy, identifies no failure to train and, the court 23 notes, Nurse Salaza was not even mentioned in plaintiff’s complaint. 24 According to plaintiff his complaint should not be dismissed because Rule 8 simply 25 requires that a complaint give defendant fair notice of what plaintiff’s claim is and the grounds 26 upon which it rests. (Id.) Plaintiff misstates that applicable pleading standard. As the Supreme 27 Court has clarified, “the pleading standard Rule 8 announces does not require ‘detailed factual 28 allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me 1 accusation.” Igbal, 556 U.S. at 678. As the assigned magistrate judge recognized, the court must 2 | construe a pro se plaintiff's pleadings liberally and “afford [him] the benefit of any doubt.” 3 | Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). Still, plaintiff must allege facts “that allows 4 | the court to draw the reasonable inference that the defendant is liable for misconduct alleged.” 5 | Iqbal, 556 U.S. at 678. Here, plaintiff's complaint merely “offers ‘labels and conclusions,” 6 | which are insufficient to state a cognizable claim and survive screening. See id. 7 Thus, the undersigned agrees with the conclusion reached in the pending findings and 8 || recommendations that plaintiff's complaint falls short of meeting the applicable pleading 9 | standards in several respects. In addition, the undersigned also concludes that the 10 | recommendation that plaintiff’s “motion for protection order,” construed as a motion for a 11 | preliminary injunction, be denied is supported by the record and proper analysis. 12 Accordingly, 13 1. The findings and recommendations issued on February 5, 2019, (Doc. No. 14), are 14 adopted in full; 15 2. This action is dismissed, with prejudice, due to plaintiffs failure to state a claim 16 upon which relief may be granted; 17 3, The findings and recommendations issued on July 16, 2019, (Doc. No. 24), are 18 adopted in full; 19 4. Plaintiff's motion for preliminary injunction, (Doc. No. 23), is denied; 20 5. The Clerk of the Court is directed to close this case. 21 | IT IS SOORDERED. me □ 22 Dated: _ March 23, 2020 J aL Al 7 ae 23 UNITED STATES DISTRICT JUDGE 24 25 26 27 28