(PC) Page v. Gates ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JASON A. PAGE, Case No. 1:19-cv-01359-DAD-JDP 12 Plaintiff, SCREENING ORDER 13 v. ECF No. 10 14 S. GATES, et al., FINDINGS AND RECOMMENDATIONS THAT CASE BE DISMISSED FOR FAILURE 15 Defendants. TO STATE A CLAIM 16 OBJECTIONS DUE IN THIRTY DAYS 17 18 Plaintiff is a state prisoner proceeding without counsel in this civil rights action under 42 19 U.S.C. § 1983. On February 18, 2020, the court screened plaintiff’s complaint and found that he 20 failed to state a claim. ECF No. 9. Plaintiff filed a first amended complaint on March 10, 2020. 21 ECF No. 10. Plaintiff’s first amended complaint, like his original complaint, fails to state a claim. 22 Section 1983 allows a private citizen to sue for the deprivation of a right secured by 23 federal law. See 42 U.S.C. § 1983; Manuel v. City of Joliet, Ill., 137 S. Ct. 911, 916 (2017). To 24 state a claim under 42 U.S.C. § 1983, a plaintiff must (1) allege the deprivation of a right secured 25 by the U.S. Constitution and laws of the United States, and (2) show that the alleged deprivation 26 was committed by a person acting under color of state law. See West v. Atkins, 487 U.S. 42, 48 27 (1988). A person deprives another of a constitutional right, “within the meaning of § 1983, ‘if he 28 1 does an affirmative act, participates in another’s affirmative act, or omits to perform an act which 2 he is legally required to do that causes the deprivation of which complaint is made.’” 3 Preschooler II v. Clark Cty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting 4 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). 5 In his first amended complaint, plaintiff shortens the list of defendants from 21 to 7. 6 However, plaintiff again makes only conclusory allegations, with no identified factual support, 7 against each defendant. See ECF No. 10 at 4-5. Plaintiff has not stated a claim against any 8 defendant. Plaintiff fails to provide facts supporting deliberate indifference against any 9 defendant; he provides no information showing how the course of treatment he received was 10 “medically unacceptable under the circumstances and [chosen] in conscious disregard of an 11 excessive risk to plaintiff’s health.” Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012), 12 overruled in part on other grounds by Peralta v. Dillard, 744 F.3d 1076, 1082-83 (9th Cir. 2014). 13 Plaintiff has already been given (1) leave to amend and (2) detailed instructions on the legal 14 standard. ECF No. 9. Thus, further leave to amend would be futile. 15 Recommendations 16 I recommend that the case be dismissed for plaintiff’s failure to state a claim. I submit 17 these findings and recommendations to the U.S. district judge presiding over the case under 28 18 U.S.C. § 636(b)(1)(B) and Local Rule 304. Within thirty days of the service of the findings and 19 recommendations, the parties may file written objections to the findings and recommendations 20 with the court and serve a copy on all parties. The document containing the objections must be 21 captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The presiding 22 district judge will then review the findings and recommendations under 28 U.S.C. § 636(b)(1)(C). 23 24 25 26 27 28 4:40 LVS MARE VET MMU i POO Ve TOY VM VI 5 | ITIS SO ORDERED. ° y 5U, —\N prssnnn — Dated: __ July 30, 2020 4 UNIT2D STATES MAGISTRATE JUDGE 5 6 | No. 204. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28