(PC) Millare v. Murphy ( 2021 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 MORIANO MILLARE, Case No. 2:20-cv-00451-WBS-JDP (PC) 10 Plaintiff, FINDINGS AND RECOMMENDATIONS THAT PLAINTIFF’S AMENDED 11 v. COMPLAINT BE DISMISSED FOR FAILURE TO STATE A CLAIM AND 12 C. JACKSON, et al., DEFENDANT’S MOTION TO DISMISS BE DENIED AS MOOT 13 DEFENDANTS. OBJECTIONS DUE IN 14 DAYS 14 ECF Nos. 21 & 22 15 16 Plaintiff Moriano Millare is a state prisoner proceeding without counsel in this civil rights 17 action brought under 42 U.S.C. § 1983. On October 9, 2020, I recommended that defendant’s 18 motion to dismiss, ECF No. 14, be granted and that plaintiff’s initial complaint be dismissed. 19 ECF No. 18. Those recommendations were adopted by the district judge and plaintiff’s claims 20 were dismissed without prejudice. ECF No. 20. Plaintiff then filed an amended complaint, ECF 21 No. 21, and defendants filed a second motion to dismiss, ECF No. 22. After screening the 22 complaint, I find that plaintiff has failed to state a cognizable claim. I therefore recommend that 23 plaintiff’s complaint be dismissed and that defendants’ motion to dismiss be denied as moot. 24 25 26 27 28 1 Screening and Pleading Requirements 2 A federal court must screen a prisoner’s complaint that seeks relief against a governmental 3 entity, officer, or employee. See 28 U.S.C. § 1915A(a). The court must identify any cognizable 4 claims and dismiss any portion of the complaint that is frivolous or malicious, fails to state a 5 claim upon which relief may be granted, or seeks monetary relief from a defendant who is 6 immune from such relief. See 28 U.S.C. §§ 1915A(b)(1), (2). 7 A complaint must contain a short and plain statement that plaintiff is entitled to relief, 8 Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its 9 face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not 10 require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S. 11 662, 678 (2009). If the allegations “do not permit the court to infer more than the mere 12 possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not 13 identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 14 1038 (9th Cir. 2016). Instead, what plaintiff must state is a “claim”—a set of “allegations that 15 give rise to an enforceable right to relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264 16 n.2 (9th Cir. 2006) (en banc) (citations omitted). 17 The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404 18 U.S. 519, 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint “if it 19 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 20 would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017). 21 However, “‘a liberal interpretation of a civil rights complaint may not supply essential elements 22 of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 23 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). 24 Analysis 25 As before, plaintiff alleges that defendants violated his rights under the Eighth and 26 Fourteenth Amendments when they declined to repair the electrical outlet and light fixture for his 27 bunk. ECF No. 21 at 6, 14-15. Plaintiff also claims that defendants’ failure to repair the fixtures 28 violated his rights under Title II of the Americans with Disabilities Act (“ADA”) because he has 1 spondylosis and is mobility impaired. Id. at 6. Finally, he alleges that defendants’ decision not to 2 repair the fixtures was retaliation for his “litigious activities.” Id. at 22, ¶ 95. I find that none of 3 plaintiff’s claims are cognizable. 4 First, plaintiff’s claims do not, taken as true, establish a violation of his Eighth 5 Amendment rights. An Eighth Amendment conditions of confinement claim has two prongs, one 6 objective and the other subjective. Objectively, a plaintiff must demonstrate that his conditions 7 were “sufficiently serious” to invoke the Eighth Amendment’s protections. See Johnson v. Lewis, 8 217 F.3d 726, 731 (9th Cir. 2000). Subjectively, a plaintiff must demonstrate that the defendant 9 acted “with a sufficiently culpable state of mind.” Id. (quoting Wilson v. Seiter, 501 U.S. 294, 10 298 (1991)). A defendant is “sufficiently culpable” if he acts with deliberate indifference. See 11 Farmer v. Brennan, 511 U.S. 825, 834 (1994) (“[A] prison official may be held liable under the 12 Eighth Amendment for denying humane conditions of confinement only if he knows that inmates 13 face a substantial risk of serious harm and disregards that risk by failing to take reasonable 14 measures to abate it.”). Plaintiff’s allegations concerning the electrical fixtures do not meet either 15 prong. They are not sufficiently serious to deprive plaintiff of “the minimal civilized measure of 16 life’s necessities.” Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir. 1996) (“To sustain an Eighth 17 Amendment claim, the plaintiff must prove a denial of the minimal civilized measure of life’s 18 necessities . . . .”) (internal quotation marks omitted). Neither has he alleged that, in ignoring his 19 requests that the fixtures be repaired, defendants ignored a “substantial risk of serious harm” to 20 him. 21 Second, plaintiff’s Fourteenth Amendment equal protection claim fails because he has not 22 alleged that he belongs to a suspect class or that defendants discriminated against him because of 23 his membership in such a class. See Lowe v. Monrovia, 775 F.2d 998, 1010 (9th Cir. 1985). As I 24 noted in my previous findings and recommendations, “the disabled do not constitute a suspect 25 class for equal protection purposes.” Lee v. City of Los Angeles, 250 F.3d 668, 686-87 (9th Cir. 26 2001) (internal quotation omitted). 27 28 1 Third, plaintiff’s ADA claim fails because, as before, he has not alleged that defendants 2 discriminated against him because of his disability.1 “The ADA prohibits discrimination because 3 of disability, not inadequate treatment for disability.” Simmons v. Navajo County, 609 F.3d 1011, 4 1022 (9th Cir. 2010). Plaintiff has not alleged that any of the defendants was aware of his 5 spondylosis.2 And grievance documents attached to plaintiff’s amended complaint indicate that 6 officials removed the fixtures because they determined that they were illegally installed by 7 inmates with “materials which were more than likely stolen from the CDCR.” ECF No. 21 at 50- 8 51. Plaintiff does allege that these justifications were pretextual. He does not, however, allege 9 that they were pretext for discrimination based on disability. Instead, he alleges that defendants 10 sought to retaliate against him for his litigation. Id. at 20. 11 Finally, plaintiff’s First Amendment retaliation claim fails because it is vague and 12 conclusory. The Ninth Circuit has established five basic elements necessary to bring a First 13 Amendment retaliation claim in the prison context: “(1) [a]n assertion that a state actor took some 14 adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and that 15 such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did 16 not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567- 17 68 (9th Cir. 2005). Plaintiff has not offered any plausible allegation that defendants declined to 18 repair the fixtures because of his litigation. He has not alleged how he knows that defendants 19 were motivated by retaliation or what litigation defendants retaliated against him for. His claim, 20 repeated several times in his complaint, that defendants “acted in response to [his] litigious 21 activities” is the sort of “unadorned, the defendant-unlawfully-harmed-me accusation” that the 22 23 24 1 Plaintiff seeks monetary damages and, therefore, must show either deliberate indifference or intentional discrimination. Ferguson v. City of Phoenix, 157 F.3d 668, 674-75 25 (9th Cir. 1998). 2 Plaintiff does allege that defendants “possessed full knowledge that [he] was a litigious, 26 mobility impaired inmate restricted to lower bunk housing . . . .” ECF No. 21 at 21, ¶ 91. As I 27 noted in my previous findings and recommendations, restriction to lower bunk housing is not itself a disability. Accordingly, plaintiff’s allegations do not, taken as true, establish that 28 defendants knew he was disabled. 1 | Supreme Court cautioned against in [gbal. 556 U.S. at 678. “Factual allegations must be enough 2 | to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. 3 Having concluded that the amended complaint states no viable claims, I must decide 4 | whether plaintiff's complaint should be dismissed with leave to amend. I conclude that □□□□□□□□□□□ 5 | Eighth Amendment, Fourteenth Amendment, and ADA claims should be dismissed without leave 6 | toamend. As noted above, plaintiff's claims do not rise to the objective level of seriousness 7 | required to state an Eighth Amendment conditions of confinement claim. Plaintiff's Fourteenth 8 | Amendment and ADA claims fail for the same reasons identified in my previous findings and 9 | recommendations. I therefore conclude that further opportunity to amend those claims would be 10 | futile. I will, however, recommend that plaintiff's First Amendment retaliation claims be 11 | dismissed with leave to amend. It is possible that those claims, if described in greater detail, 12 | could proceed past screening. 13 Accordingly, it is recommended that: 14 1. Plaintiff's Eighth Amendment, Fourteenth Amendment, and ADA claims be 15 || dismissed without leave to amend. 16 2. Plaintiff's First Amendment retaliation claims be dismissed with leave to amend. 17 3. Defendant’s motion to dismiss, ECF No. 22, be denied as moot. 18 I submit these findings and recommendations to the district judge under 28 U.S.C. 19 | § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, 20 | Eastern District of California. Within 14 days of the service of the findings and 21 | recommendations, the parties may file written objections to the findings and recommendations 22 | with the court and serve a copy on all parties. That document should be captioned “Objections to 23 | Magistrate Judge’s Findings and Recommendations.” The district judge will review the findings 24 | and recommendations under 28 U.S.C. § 636(b)(1)(C). 2) | IT IS SO ORDERED. 26 □ 27 | Dated: _ January 15, 2021 ssn (oto. ya 38 JEREMY D. PETERSON 1 UNITED STATES MAGISTRATE JUDGE 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28