(PC) Vetter v. CDCR ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GEORGE WILLIAM VETTER, Case No. 2:22-cv-02241-JDP (PC) 12 Plaintiff, ORDER GRANTING PLAINTIFF’S SECOND APPLICATION TO PROCEED IN 13 v. FORMA PAUPERIS AND DENYING HIS FIRST APPLICATION AS MOOT 14 CDCR, et al., ECF Nos. 3 & 7 15 Defendants. SCREENING ORDER THAT PLAINTIFF: 16 (1) STAND BY HIS FIRST AMENDED 17 COMPLAINT SUBJECT TO A RECOMMENDATION OF 18 DISMISSAL; 19 (2) FILE AN AMENDED COMPLAINT 20 ECF No. 8 21 THIRTY-DAY DEADLINE 22 23 24 25 Plaintiff, a state prisoner, brings this section 1983 case against the California Department 26 of Corrections and Rehabilitation (“CDCR”), the California Health Care Facility (“CHCF”), and 27 the warden of CHCF, Gena Jones. ECF No. 8. He alleges that defendants violated state law in 28 failing to provide him with large, “prison industry authority” socks. Id. at 5-8. These allegations 1 do not state a cognizable claim under section 1983. I will give plaintiff leave to amend before 2 recommending that this action be dismissed. Additionally, I will grant plaintiff’s second 3 application to proceed in forma pauperis, ECF No. 7, and deny his first application, ECF No. 3, 4 as moot. 5 Screening Order 6 I. Screening and Pleading Requirements 7 A federal court must screen a prisoner’s complaint that seeks relief against a governmental 8 entity, officer, or employee. See 28 U.S.C. § 1915A(a). The court must identify any cognizable 9 claims and dismiss any portion of the complaint that is frivolous or malicious, fails to state a 10 claim upon which relief may be granted, or seeks monetary relief from a defendant who is 11 immune from such relief. See 28 U.S.C. §§ 1915A(b)(1), (2). 12 A complaint must contain a short and plain statement that plaintiff is entitled to relief, 13 Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its 14 face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not 15 require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S. 16 662, 678 (2009). If the allegations “do not permit the court to infer more than the mere 17 possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not 18 identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 19 1038 (9th Cir. 2016). Instead, what plaintiff must state is a “claim”—a set of “allegations that 20 give rise to an enforceable right to relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264 21 n.2 (9th Cir. 2006) (en banc) (citations omitted). 22 The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404 23 U.S. 519, 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint “if it 24 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 25 would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017). 26 However, “‘a liberal interpretation of a civil rights complaint may not supply essential elements 27 of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 28 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). 1 2 II. Analysis 3 Plaintiff’s allegations concerning defendants’ failure to comply with state law and to 4 provide him with socks do not give rise to a colorable federal claim. See Moreland v. Las Vegas 5 Metro. Police Dep’t., 159 F.3d 365, 371 (9th Cir. 1998) (“[S]tate law violations do not, on their 6 own, give rise to liability under § 1983.”); Lovell v. Poway Unified Sch. Dist., 90 F.3d 367, 370- 7 71 (9th Cir. 1996) (“Section 1983 limits a federal court’s analysis to the deprivation of rights 8 secured by the federal Constitution and laws.”). And, even if his claims are construed as 9 proceeding under the Eighth Amendment, plaintiff has not alleged that the failure to provide him 10 with socks caused him any risk of injury or deprivation serious enough to invoke that 11 amendment’s protections. See Farmer v. Brennan, 511 U.S. 825, 837 (1994) (“[A] prison official 12 cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of 13 confinement unless the official knows of and disregards an excessive risk to inmate health or 14 safety.”). 15 Plaintiff may file an amended complaint. He is advised that the amended complaint will 16 supersede the current complaint. See Lacey v. Maricopa County, 693 F.3d 896, 907 n.1 (9th Cir. 17 2012) (en banc). This means that the amended complaint will need to be complete on its face 18 without reference to the prior pleading. See E.D. Cal. Local Rule 220. Once an amended 19 complaint is filed, the current complaint no longer serves any function. Therefore, in an amended 20 complaint, as in an original complaint, plaintiff will need to assert each claim and allege each 21 defendant’s involvement in sufficient detail. The amended complaint should be titled “Second 22 Amended Complaint” and refer to the appropriate case number. 23 Accordingly, it is ORDERED that: 24 1. Plaintiff’s application to proceed in forma pauperis, ECF No. 7, is GRANTED and his 25 first application to proceed in forma pauperis, ECF No. 3, is DENIED as moot. 26 2. Within thirty days from the service of this order, plaintiff may file an amended 27 complaint. If he does not, I will recommend that this action be dismissed. 28 3. The Clerk of Court is directed to send plaintiff a complaint form. 1 > IT IS SO ORDERED. 3 ( | { Wine Dated: _ March 3, 2023 Q_——_. 4 JEREMY D. PETERSON 5 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28