(PC) Robertson v. Gutierrez ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TRE L. ROBERTSON, Case No. 2:24-cv-02034-JDP (PC) 12 Plaintiff, ORDER 13 v. GRANTING PLAINTIFF’S APPLICATION TO PROCEED IN FORMA PAUPERIS 14 S. GUTIERREZ., ECF No. 2 15 Defendant. SCREENING ORDER 16 FINDING THAT THE COMPLAINT FAILS 17 TO STATE A COGNIZABLE CLAIM AND GRANTING AN OPPORTUNITY TO 18 AMEND 19 ECF No. 1 20 21 Plaintiff, an inmate at the Stanislaus County Public Safety Center, brings this action 22 against defendant Gutierrez, an operations sergeant at the facility. ECF No. 1 at 2. He alleges 23 that this defendant allowed an inmate infected with the bacterium Helicobacter pylori to handle 24 food for other inmates. Id. at 3. Plaintiff fails to state a cognizable claim, however, because he 25 does not allege that he suffered any specific injury because of defendant’s alleged failure to 26 prevent the infected inmate from handling food. I will grant him leave to amend before 27 recommending that this action be dismissed. I will also grant plaintiff’s application to proceed in 28 forma pauperis, ECF No. 2. 1 Screening Order 2 I. Screening and Pleading Requirements 3 A federal court must screen the complaint of any claimant seeking permission to proceed 4 in forma pauperis. See 28 U.S.C. § 1915(e). The court must identify any cognizable claims and 5 dismiss any portion of the complaint that is frivolous or malicious, fails to state a claim upon 6 which relief may be granted, or seeks monetary relief from a defendant who is immune from such 7 relief. Id. 8 A complaint must contain a short and plain statement that plaintiff is entitled to relief, 9 Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its 10 face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not 11 require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S. 12 662, 678 (2009). If the allegations “do not permit the court to infer more than the mere 13 possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not 14 identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 15 1038 (9th Cir. 2016). Instead, what plaintiff must state is a “claim”—a set of “allegations that 16 give rise to an enforceable right to relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264 17 n.2 (9th Cir. 2006) (en banc) (citations omitted). 18 The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404 19 U.S. 519, 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint “if it 20 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 21 would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017). 22 However, “‘a liberal interpretation of a civil rights complaint may not supply essential elements 23 of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 24 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). 25 26 27 28 1 II. Analysis 2 Plaintiff alleges that, in July 2024, he learned that another inmate, Marquis Drake, was 3 allowed to handle other inmates’ food despite being infected with the bacterium Helicobacter 4 pylori. ECF No. 1. He filed a grievance concerning this issue and defendant Gutierrez responded 5 by stating that he had “confirmed with medical staff that any such individuals do not have KP 6 status.” Id. at 3. Plaintiff claims that Gutierrez’s response is belied by security camera footage 7 that shows Drake handling food on July 11, 13, and 16. Id. Plaintiff does not, however, allege 8 that he contracted any sickness or that he was otherwise physically injured by Drake’s alleged 9 handling of food. To sustain a Fourteenth Amendment conditions of confinement claim, a 10 plaintiff must show that: 11 (1) The defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; (2) Those 12 conditions put the plaintiff at substantial risk of suffering serious harm; (3) The defendant did not take reasonable available measures 13 to abate that risk, even though a reasonable officer in the circumstances would have appreciated the high degree of risk 14 involved—making the consequences of the defendant’s conduct obvious; and (4) By not taking such measures, the defendant caused 15 the plaintiff's injuries. 16 Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1071 (9th Cir. 2016). Additionally, the denial of 17 plaintiff’s grievance, without more, does not give rise to a colorable claim against Gutierrez. 18 Rodriguez v. Moore, No. 2:18-cv-1089-TLN-KJN P, 2018 U.S. Dist. LEXIS 108598, 2018 WL 19 3203131, at *3 (E.D. Cal. June 28, 2018) (pretrial detainee had no due process right to a 20 grievance procedure). 21 I will grant plaintiff a final opportunity to amend before recommending dismissal of this 22 action. Therein and if he can, he must address the deficiencies explained above. Plaintiff is 23 advised that the amended complaint will supersede the current complaint. See Lacey v. Maricopa 24 County, 693 F. 3d 896, 907 n.1 (9th Cir. 2012) (en banc). The amended complaint should be 25 titled “First Amended Complaint” and refer to the appropriate case number. 26 Accordingly, it is ORDERED that: 27 1. Within thirty days from the service of this order, plaintiff must file an amended 28 complaint that complies with this order. If he fails to do so, I will recommend that this action be 1 | dismissed. 2 2. The Clerk of Court shall send plaintiff a section 1983 complaint form with this order. 3 3. Plaintiff's application to proceed in forma pauperis, ECF No. 2, is GRANTED. 4 5 IT IS SO ORDERED. Dated: _ October 3, 2024 Q_——_. 7 JEREMY D. PETERSON 8 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28