(PC) Herrera v. Price ( 2020 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 RUBEN HERRERA, Case No. 1:19-cv-01405-EPG (PC) 10 Plaintiff, FINDINGS AND RECOMMENDATIONS, 11 RECOMMENDING THAT THIS ACTION v. BE DISMISSED, WITH PREJUDICE, FOR 12 FAILURE TO STATE A CLAIM, BRANDON PRICE, et al., FAILURE TO PROSECUTE, AND 13 FAILURE TO COMPLY WITH A COURT Defendants. ORDER 14 (ECF NOS. 1 & 7) 15 OBJECTIONS, IF ANY, DUE WITHIN 16 FOURTEEN DAYS 17 ORDER DIRECTING CLERK TO ASSIGN DISTRICT JUDGE 18 19 I. BACKGROUND 20 Ruben Herrera (“Plaintiff”) is a civil detainee proceeding pro se and in forma pauperis 21 in this civil rights action filed pursuant to 42 U.S.C. § 1983. 22 Plaintiff filed the complaint commencing this action on October 7, 2019. (ECF No. 1). 23 On April 8, 2020, the Court screened Plaintiff’s complaint and found that it failed to state a 24 claim. (ECF No. 7). The Court gave Plaintiff thirty days from the date of service of the order 25 to file an amended complaint or to notify the Court that he wants to stand on his complaint. 26 (Id. at 8). The Court warned Plaintiff that “[f]ailure to comply with this order may result in the 27 dismissal of this action.” (Id.). 28 On May 7, 2020, the Court granted Plaintiff’s motion for extension of time, giving 1 Plaintiff sixty days to respond to the Court’s screening order. (ECF No. 9). This sixty-day 2 period has expired, and Plaintiff has not filed an amended complaint or otherwise responded to 3 the Court’s order. Accordingly, for the reasons described below, the Court will recommend 4 that Plaintiff’s case be dismissed for failure to state a claim. The Court will also recommend 5 that Plaintiff’s case be dismissed for failure to comply with a court order and failure to 6 prosecute. 7 II. SCREENING REQUIREMENT 8 As Plaintiff is proceeding in forma pauperis (ECF No. 5), the Court may screen 9 Plaintiff’s complaint under 28 U.S.C. § 1915. “Notwithstanding any filing fee, or any portion 10 thereof, that may have been paid, the court shall dismiss the case at any time if the court 11 determines that the action or appeal fails to state a claim upon which relief may be granted.” 12 28 U.S.C. § 1915(e)(2)(B)(ii). 13 A complaint is required to contain “a short and plain statement of the claim showing 14 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are 15 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 16 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 17 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A plaintiff must set forth “sufficient 18 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. 19 (quoting Twombly, 550 U.S. at 570). The mere possibility of misconduct falls short of meeting 20 this plausibility standard. Id. at 679. While a plaintiff’s allegations are taken as true, courts 21 “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 22 677, 681 (9th Cir. 2009) (citation and internal quotation marks omitted). Additionally, a 23 plaintiff’s legal conclusions are not accepted as true. Iqbal, 556 U.S. at 678. 24 Pleadings of pro se plaintiffs “must be held to less stringent standards than formal 25 pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that 26 pro se complaints should continue to be liberally construed after Iqbal). 27 \\\ 28 \\\ 1 III. SUMMARY OF PLAINTIFF’S COMPLAINT 2 Plaintiff alleges that his requests for marriage were denied from June 23, 2019 until 3 September 29, 2019. 4 He names as defendants Executive Director Brandon Price and a Doe, who was the 5 Assistant Director. 6 He alleges that Brandon Price personally applied a policy against him in retaliation. 7 Price is the official policy maker and is responsible for implementation of all policies. He has 8 established a procedure that violates the law. 9 Plaintiff alleges that Doe is also liable because he knew of the violations yet failed to 10 act. 11 IV. EVALUATION OF PLAINTIFF’S CLAIMS 12 A. Section 1983 13 The Civil Rights Act under which this action was filed provides: 14 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or 15 causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or 16 immunities secured by the Constitution and laws, shall be liable to the party 17 injured in an action at law, suit in equity, or other proper proceeding for redress.... 18 42 U.S.C. § 1983. “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely 19 provides ‘a method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 20 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see 21 also Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los 22 Angeles, 697 F.3d 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 23 2012); Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). 24 To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted 25 under color of state law, and (2) the defendant deprived him of rights secured by the 26 Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 27 2006); see also Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing 28 1 “under color of state law”). A person deprives another of a constitutional right, “within the 2 meaning of § 1983, ‘if he does an affirmative act, participates in another's affirmative act, or 3 omits to perform an act which he is legally required to do that causes the deprivation of which 4 complaint is made.’” Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th 5 Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite 6 causal connection may be established when an official sets in motion a ‘series of acts by others 7 which the actor knows or reasonably should know would cause others to inflict’ constitutional 8 harms.” Preschooler II, 479 F.3d at 1183 (quoting Johnson, 588 F.2d at 743). This standard of 9 causation “closely resembles the standard ‘foreseeability’ formulation of proximate cause.” 10 Arnold v. Int'l Bus. Mach. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City 11 of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008). 12 A plaintiff must demonstrate that each named defendant personally participated in the 13 deprivation of his rights. Iqbal, 556 U.S. at 676-77. In other words, there must be an actual 14 connection or link between the actions of the defendants and the deprivation alleged to have 15 been suffered by the plaintiff. See Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 16 658, 691, 695 (1978). 17 B. Rule 8 18 As described above, a complaint must contain “a short and plain statement of the claim 19 showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Plaintiff’s complaint 20 does not contain sufficient facts for the Court to determine that Plaintiff states a cognizable 21 claim. Plaintiff alleges that Defendants are violating his constitutional rights by failing to allow 22 him to get married. However, Plaintiff does not describe how Defendants actions or inactions 23 are violating his constitutional rights. Plaintiff does not explain how he requested to get 24 married, who responded, or why his request was denied. Plaintiff alleges that there is an 25 unconstitutional policy, but he includes no factual allegations regarding what the policy is or 26 how it violates his rights. 27 Similarly, Plaintiff alleges that Defendants are acting in retaliation. But Plaintiff fails to 28 allege what Defendants did or said that makes Plaintiff believe they are acting in retaliation 1 because he was engaged in protected conduct. 2 The Court previously provided Plaintiff with relevant legal standards and leave to 3 amend his complaint to cure these deficiencies. (ECF No. 7). However, the deadline for 4 Plaintiff to amend his complaint has passed and Plaintiff has not filed an amended complaint. 5 Accordingly, the Court will recommend that this action be dismissed for failure to state 6 a claim. 7 V. FAILURE TO PROSECUTE AND COMPLY 8 “In determining whether to dismiss a[n] [action] for failure to prosecute or failure to 9 comply with a court order, the Court must weigh the following factors: (1) the public’s interest 10 in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 11 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 12 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 13 639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 14 “‘The public’s interest in expeditious resolution of litigation always favors dismissal.’” 15 Id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). Accordingly, 16 this factor weighs in favor of dismissal. 17 As to the Court’s need to manage its docket, “[t]he trial judge is in the best position to 18 determine whether the delay in a particular case interferes with docket management and the 19 public interest…. It is incumbent upon the Court to manage its docket without being subject to 20 routine noncompliance of litigants....” Pagtalunan, 291 at 639. Plaintiff has failed to respond 21 to the Court’s screening order. This failure to respond is delaying the case and interfering with 22 docket management. Therefore, the second factor weighs in favor of dismissal. 23 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 24 and of itself to warrant dismissal.” Id. at 642 (citing Yourish, 191 F.3d at 991). However, 25 “delay inherently increases the risk that witnesses’ memories will fade and evidence will 26 become stale,” id. at 643, and it is Plaintiff’s failure to comply with a court order and to 27 prosecute this case that is causing delay. Therefore, the third factor weighs in favor of 28 dismissal. wOoOe 4:40 VV ITU INN NS OM PIO Oe eT OY VV 1 As for the availability of lesser sanctions, at this stage in the proceedings there is little 2 || available to the Court which would constitute a satisfactory lesser sanction while protecting the 3 || Court from further unnecessary expenditure of its scarce resources. Considering Plaintiff's 4 || detention and in forma pauperis status, monetary sanctions are of little use. And, given the 5 || stage of these proceedings, the preclusion of evidence or witnesses is not available. 6 Finally, because public policy favors disposition on the merits, this factor weighs 7 || against dismissal. Id. 8 After weighing the factors, the Court finds that dismissal with prejudice is appropriate. 91) VI. RECOMMENDATIONS AND ORDER 10 Based on the foregoing, the Court HEREBY RECOMMENDS that: 11 1. This action be dismissed, with prejudice, for failure to state a claim, failure to 12 prosecute, and failure to comply with a court order; and 13 2. The Clerk of Court be directed to close this case. 14 These findings and recommendations will be submitted to the United States district 15 || judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within 16 fourteen (14) days after being served with these findings and recommendations, Plaintiff may 17 || file written objections with the Court. The document should be captioned “Objections to 18 || Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 19 || objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 20 || Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 21 || (9th Cir. 1991)). 22 Additionally, IT IS ORDERED that the Clerk of Court is directed to assign a district 23 || judge to this case. 24 IT IS SO ORDERED. 26 || Dated: _ August 20, 2020 [Je hey 27 UNITED STATES MAGISTRATE JUDGE 28