(PC) Quair v. CDCR HQ ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID SABINO QUAIR, III, No. 2:19-cv-1106 DB P 12 Plaintiff, 13 v. ORDER AND 14 CDCR HQ, et al., FINDINGS AND RECOMMENDATIONS 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights 18 action pursuant to 42 U.S.C. § 1983. Previously, plaintiff’s original and first amended complaints 19 were screened and found lacking a cognizable claim. Plaintiff’s second amended complaint is 20 now before the Court. 21 I. Screening Requirement 22 The in forma pauperis statute provides, “Notwithstanding any filing fee, or any portion 23 thereof, that may have been paid, the court shall dismiss the case at any time if the court 24 determines that . . . the action or appeal . . . fails to state a claim upon which relief may be 25 granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 26 II. Pleading Standard 27 Section 1983 “provides a cause of action for the deprivation of any rights, privileges, or 28 immunities secured by the Constitution and laws of the United States.” Wilder v. Virginia Hosp. 1 7Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source 2 of substantive rights, but merely provides a method for vindicating federal rights conferred 3 elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989). 4 To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a 5 right secured by the Constitution or laws of the United States was violated and (2) that the alleged 6 violation was committed by a person acting under the color of state law. See West v. Atkins, 487 7 U.S. 42, 48 (1988); Ketchum v. Alameda 553e., 811 F.2d 1243, 1245 (9th Cir. 1987). 8 A complaint must contain “a short and plain statement of the claim showing that the 9 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 10 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 11 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 12 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual 13 matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. Facial 14 plausibility demands more than the mere possibility that a defendant committed misconduct and, 15 while factual allegations are accepted as true, legal conclusions are not. Id. at 677-78. 16 III. Discussion 17 Plaintiff’s original and first amended complaints were found to be so vague and 18 conclusory that the Court determined that plaintiff failed to state a claim. Plaintiff’s second 19 amended complaint fares no better. Plaintiff again names as defendants Ralph Diaz, the Director 20 of the California Department of Corrections and Rehabilitation; Julie Dyzynski, from the Office 21 of Internal Affairs; M. Voong, Chief of Inmate Appeals; and Timothy M. Lockwood, Director of 22 “Reg. and Policy Management.” He continues to contend that his equal protection rights were 23 violated, that he has been retaliated against, that his legal mail has been “manipulated,” and that 24 he has been denied adequate medical care. However, there are still no facts to inform any of the 25 defendants or the Court how these rights were violated, when they were violated, or by whom. 26 Plaintiff therefore again fails to state a claim. 27 //// 28 //// 1 IV. Conclusion 2 Plaintiff’s second amended complaint fails to state a claim. The Court must now 3 determine whether to allow plaintiff leave to further amend. Federal Rule of Civil Procedure 4 15(a)(2) provides that “a party may amend its pleading only with the opposing party’s written 5 consent or the court’s leave. The court should freely grant leave when justice so requires.” Fed. R. 6 Civ. P. 15(a)(2). 7 When determining whether to grant leave to amend, courts weigh certain factors: “undue 8 delay, bad faith or dilatory motive on the part of [the party who wishes to amend a pleading], 9 repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the 10 opposing party by virtue of allowance of the amendment, [and] futility of amendment[.]” See 11 Foman v. Davis, 371 U.S. 178, 182 (1962). Although prejudice to the opposing party “carries the 12 greatest weight[,]...a strong showing of any of the remaining Foman factors” can justify the denial 13 of leave to amend. See Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 14 2003) (per curiam). Furthermore, analysis of these factors can overlap. For instance, a party’s 15 “repeated failure to cure deficiencies” constitutes “a strong indication that the [party] has no 16 additional facts to plead” and “that any attempt to amend would be futile[.]” See Zucco Partners, 17 LLC v. Digimarc Corp., 552 F.3d 981, 988, 1007 (9th Cir. 2009) (internal quotation marks 18 omitted) (upholding dismissal of complaint with prejudice when there were “three iterations of 19 [the] allegations — none of which, according to [the district] court, was sufficient to survive a 20 motion to dismiss”); see also Simon v. Value Behavioral Health, Inc., 208 F.3d 1073, 1084 (9th 21 Cir. 2000) (affirming dismissal without leave to amend where plaintiff failed to correct 22 deficiencies in complaint, where court had afforded plaintiff opportunities to do so, and had 23 discussed with plaintiff the substantive problems with his claims), amended by 234 F.3d 428, 24 overruled on other grounds by Odom v. Microsoft Corp., 486 F.3d 541, 551 (9th Cir. 2007); 25 Plumeau v. Sch. Dist. # 40 Cnty. of Yamhill, 130 F.3d 432, 439 (9th Cir. 1997) (denial of leave to 26 amend appropriate where further amendment would be futile). 27 Here, plaintiff has been provided multiple opportunities to state a viable claim against one 28 or more of the defendants. Each time, his allegations have failed to state a claim. It appears, then, 1 | that plaintiff is unable to satisfy Rule 8 of the Federal Rules of Civil Procedure’s mandate that a 2 | complaint include a “short and plain statement of the claim.” Fed. R. Civ. P. 8(a)(2). 3 Accordingly, HEREBY ORDERED that a district judge be assigned to this case; and 4 ITIS HEREBY RECOMMENDED that plaintiff’s first amended complaint be dismissed 5 || without leave to amend. 6 These Findings and Recommendations will be submitted to the United States District 7 | Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(). Within 8 | fourteen days after being served with these Findings and Recommendations, the parties may file 9 || written objections with the Court. The document should be captioned “Objections to Magistrate 10 | Judge’s Findings and Recommendations.” The parties are advised that failure to file objections 11 || within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 12 | F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 13 | Dated: November 11, 2020 14 15 16 ORAH BARNES LRT. UNITED STATES MAGISTRATE JUDGE 17 || DBAnbox/Substantive/quail 106.scrn 2AC 18 19 20 21 22 23 24 25 26 27 28