(PC) Venable v. Perry ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MAURICE L. VENABLE, No. 2:21-cv-0814 AC P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 SUSAN PERRY, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. By 18 order filed June 21, 2021, the undersigned screened the original complaint, found that it did not 19 state a claim for relief, and gave plaintiff an opportunity to file an amended complaint. ECF No. 20 7. Plaintiff has now filed a first amended complaint. ECF No. 10. 21 I. Statutory Screening of Prisoner Complaints 22 The court is required to screen complaints brought by prisoners seeking relief against a 23 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 24 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 25 “frivolous, malicious, or fail[] to state a claim upon which relief may be granted,” or that “seek[] 26 monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b). 27 A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.” 28 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 1 Cir. 1984). “[A] judge may dismiss . . . claims which are ‘based on indisputably meritless legal 2 theories’ or whose ‘factual contentions are clearly baseless.’” Jackson v. Arizona, 885 F.2d 639, 3 640 (9th Cir. 1989) (quoting Neitzke, 490 U.S. at 327), superseded by statute on other grounds as 4 stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). The critical inquiry is whether a 5 constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. 6 Franklin, 745 F.2d at 1227-28 (citations omitted). 7 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the 8 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of 9 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 10 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 11 “Failure to state a claim under § 1915A incorporates the familiar standard applied in the context 12 of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman, 13 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). In order to survive dismissal for failure 14 to state a claim, a complaint must contain more than “a formulaic recitation of the elements of a 15 cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the 16 speculative level.” Twombly, 550 U.S. at 555 (citations omitted). “‘[T]he pleading must contain 17 something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally 18 cognizable right of action.’” Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur 19 R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)). 20 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 21 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 22 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual 23 content that allows the court to draw the reasonable inference that the defendant is liable for the 24 misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In reviewing a complaint under this 25 standard, the court must accept as true the allegations of the complaint in question, Hosp. Bldg. 26 Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976) (citation omitted), as well as construe the 27 pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, 28 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted). 1 II. Complaint 2 The complaint alleges that defendants Perry and Harwood violated plaintiff’s Eighth and 3 Fourteenth Amendment rights by subjecting him to unconstitutional living conditions. ECF No. 4 10 at 7-13. Specifically, plaintiff alleges that on November 13, 2019, after he was found guilty of 5 a rules violation, Hardwood had him transferred to the new C-status dorm. Id. at 7. The dorm 6 plaintiff was transferred to had 7 no television, inadequate lights, writen [sic] on the walls, paint peeling from the walls, no day room, confining all inmates to the 8 same area 24 hours a day. The roof in the bathroom looked as though it was about to cave in, in the bathroom, possibly exposing [inmates] 9 to espetus [sic]. The dorm had broken windows & broken lockers. 10 Id. at 8. 11 When plaintiff was placing his items into his locker after being transferred, he cut his 12 hand in three places on a broken part of the locker and was not seen by medical until three days 13 later, at which point he received bandages and a tetanus shot. Id. at 9-10. Plaintiff requested to 14 be moved to another dorm, and while he was waiting, maintenance came and worked on the 15 locker. Id. at 10. Plaintiff alleges that as the program lieutenant, Hardwood knew or should have 16 known that the dorm was unsafe for housing. Id. at 9. 17 With respect to defendant Perry, plaintiff alleges that after the appeals coordinator refused 18 to process his appeal, he wrote to Perry to notify her that he was being refused the right to 19 proceed with an appeal. Id. at 12. Perry did not respond to the letter, thereby contributing to the 20 punishment of housing him in a dorm that was unfit for housing. Id. Plaintiff further alleges that 21 as warden, Perry was responsible for training her subordinates and knew or should have known 22 that there were illegal acts taking place. Id. at 13. 23 III. Failure to State a Claim 24 A. Conditions of Confinement 25 The conditions of the dorm alleged in the first amended complaint are nearly identical to 26 those alleged in the original complaint, compare ECF No. 1 at 3 with ECF No. 10 at 8, and 27 plaintiff was previously advised that those conditions were not sufficient to constitute an Eighth 28 Amendment violation, ECF No. 7 at 4 (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)). 1 “‘[T]he Constitution does not mandate comfortable prisons,’ or that prisoners ‘be free of 2 discomfort,’” Colwell v. Bannister, 763 F.3d 1060, 1074 (9th Cir. 2014) (alteration in original) 3 (quoting Rhodes v. Chapman, 452 U.S. 337, 348-49 (1981)), and the conditions alleged by 4 plaintiff are largely cosmetic, rather than the type of “deprivations denying the minimal civilized 5 measure of life’s necessities [that] are sufficiently grave to form the basis of an Eighth 6 Amendment violation,” Wilson, 501 U.S. at 298 (internal citation and quotation marks omitted). 7 Although plaintiff cut his hand on the broken locker, “[n]ot every injury that a prisoner sustains 8 while in prison represents a constitutional violation,” Morgan v. Morgensen, 465 F.3d 1041, 1045 9 (9th 2006), and the facts alleged do not indicate that the broken locker was a “condition[] posing 10 a substantial risk of serious harm,” see Farmer v. Brennan, 511 U.S. 825, 834 (1994) (“[T]he 11 inmate must show that he is incarcerated under conditions posing a substantial risk of serious 12 harm.” (citing Helling v. McKinney, 509 U.S. 25, 35 (1993))). 13 B. Due Process 14 Plaintiff appears to allege that his due process rights were violated when he was moved to 15 a less desirable dorm. However, “the Constitution itself does not give rise to a liberty interest in 16 avoiding transfer to more adverse conditions of confinement,” Wilkinson v. Austin, 545 U.S. 209, 17 221 (2005) (citing Meachum v. Fano, 427 U.S. 215, 225 (1976)), and the conditions alleged by 18 plaintiff did not cause a change in confinement that “impose[d] atypical and significant hardship 19 on [him] in relation to the ordinary incidents of prison life.” Sandin v. O’Conner, 515 U.S. 472, 20 484 (1995). To the extent plaintiff is attempting to state a due process claim against Perry related 21 to the denial of his appeal, prisoners do not have “a separate constitutional entitlement to a 22 specific prison grievance procedure,” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) 23 (citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988)), and these claims necessarily fail. 24 IV. No Leave to Amend 25 Leave to amend should be granted if it appears possible that the defects in the complaint 26 could be corrected, especially if a plaintiff is pro se. Lopez v. Smith, 203 F.3d 1122, 1130-31 27 (9th Cir. 2000) (en banc). However, if, after careful consideration, it is clear that a complaint 28 cannot be cured by amendment, the court may dismiss without leave to amend. Cato v. United 1 || States, 70 F.3d 1103, 1105-06 (9th Cir. 1995). 2 The undersigned finds that, as set forth above, the first amended complaint fails to state a 3 || claim upon which relief may be granted. Plaintiff has already been given an opportunity to 4 || amend the complaint and advised what kind of information he needed to provide. Given that the 5 || facts provided in the first amended complaint are nearly identical to those in the original, it does 6 || not appear that further amendment would result in a cognizable claim. As a result, leave to 7 || amend would be futile and the first amended complaint should be dismissed without leave to 8 | amend. 9 V. Plain Language Summary of this Order for a Pro Se Litigant 10 It is being recommended that your complaint be dismissed without leave to amend 11 || because the facts you have alleged do not show that the conditions in the dorm were cruel and 12 || unusual or that the broken locker posed a substantial risk of serious harm. You also do not have a 13 || right to avoid being housed in a less desirable location or to a specific grievance process. 14 In accordance with the above, IT IS HEREBY ORDERED that the Clerk of the Court 15 | shall randomly assign a United States District Judge to this action. 16 IT IS FURTHER RECOMMENDED that the first amended complaint be dismissed 17 || without leave to amend for failure to state a claim. 18 These findings and recommendations are submitted to the United States District Judge 19 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1).. Within twenty-one days 20 || after being served with these findings and recommendations, plaintiff may file written objections 21 || with the court. Such a document should be captioned “Objections to Magistrate Judges Findings 22 || and Recommendations.” Plaintiff is advised that failure to file objections within the specified 23 || time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 24 | (9th Cir. 1991). 25 || DATED: July 22, 2021 Httven— 26 ALLISON CLAIRE 7 UNITED STATES MAGISTRATE JUDGE 28