Turner v. Pollard ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MICHAEL WAYNE TURNER, Case No.: 3:20-cv-02193-DMS-AGS CDCR #AN-8222, 12 ORDER DISMISSING FIRST Plaintiff, 13 AMENDED COMPLAINT FOR vs. FAILURE TO STATE A CLAIM 14 PURSUANT TO 28 U.S.C. § 15 1915(e)(2)(B)(ii) AND 28 U.S.C. § MARCUS POLLARD, 1915A(b)(1) 16 Defendant. 17 18 19 Plaintiff Michael Wayne Turner (“Plaintiff”), currently incarcerated at Mule Creek 20 State Prison, is proceeding pro se and in forma pauperis (“IFP”) in this action seeking 21 damages for alleged “losse[s] of personal property, mental anguish, [and] depression.” 22 (See ECF No. 1, Compl. at 2.) 23 The Court previously granted Plaintiff’s Motion to Proceed IFP and dismissed 24 Plaintiff’s initial Complaint (ECF No. 1) for failure to state claim pursuant to 28 U.S.C. 25 Section 1915(e)(2) and Section 1915A(b) and for lack of subject-matter jurisdiction 26 pursuant to Federal Rule of Civil Procedure 12(h)(3), and granted Plaintiff leave to amend. 27 (See ECF No. 3, at 5-7.) Plaintiff timely submitted a First Amended Complaint. (See 28 generally ECF No. 4, FAC.) 1 I. Screening pursuant to 28 U.S.C. Section 1915(e)(2) and Section 1915A(b) 2 A. Standard of Review 3 Because Plaintiff is a prisoner and is proceeding IFP, his First Amended Complaint 4 requires a pre-answer screening pursuant to 28 U.S.C. Section 1915(e)(2) and Section 5 1915A(b). Under these statutes, the Court must sua sponte dismiss a prisoner’s IFP 6 complaint, or any portion of it, which is frivolous, malicious, fails to state a claim, or seeks 7 damages from defendants who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 8 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. Section 1915(e)(2)); Rhodes v. Robinson, 9 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. Section 1915A(b)). “The 10 purpose of [screening] is ‘to ensure that the targets of frivolous or malicious suits need not 11 bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 12 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 13 2012)). 14 “The standard for determining whether a plaintiff has failed to state a claim upon 15 which relief can be granted under Section 1915(e)(2)(B)(ii) is the same as the Federal Rule 16 of Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 17 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 18 Cir. 2012) (noting that screening pursuant to Section 1915A “incorporates the familiar 19 standard applied in the context of failure to state a claim under Federal Rule of Civil 20 Procedure 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual 21 matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. 22 Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 23 1121. 24 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 25 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 26 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief 27 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 28 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, 1 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 2 standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 3 B. Plaintiff’s Factual Allegations 4 Plaintiff alleges that he was placed in a crisis bed on January 15, 2020 while he was 5 housed at the Richard J. Donovan Correctional Facility (“RJD”). (FAC at 1.) Some of 6 Plaintiff’s personal property, including personal photographs of family members, were 7 taken by prison officials at that time. (See id. at 1-3.) Plaintiff did not receive a receipt for 8 his property, and after he was released from the crisis bed, he filed a form requesting that 9 the property be returned. (See id. at 1.) Several months later, one of Plaintiff’s 10 administrative grievances concerning the property was granted, and the decision stated that 11 Plaintiff’s personal property would be sent to him at Mule Creek, where he is now housed. 12 (See id. at 6 (attached appeal decision).) Plaintiff never received his property however, and 13 officials at Mule Creek told him to file another administrative appeal. (See id. at 1.) 14 Plaintiff did so but has not yet received a response. (See id.) 15 Plaintiff alleges that “relief can be granted by way of Warden Marcus Pollard 16 compensating [him]” with $10,000 for Plaintiff’s stress, depression, and other non-physical 17 injuries caused by the deprivation of his personal property. (See id.; see also ECF No. 4- 18 1, at 2.) 19 C. Analysis 20 Plaintiff’s First Amended Complaint must be dismissed for two reasons. 21 First, as the Court explained in dismissing Plaintiff’s initial Complaint, “‘[b]ecause 22 vicarious liability is inapplicable to . . . § 1983 suits,’ [Plaintiff] must . . . allege that 23 Defendant Pollard or any other government official he wishes to sue, ‘through the official’s 24 own individual actions, has violated the constitution.’” (ECF No. 3, at 5 (quoting Iqbal, 25 556 U.S. at 676).) The only factual allegation in the First Amended Complaint regarding 26 Defendant Pollard’s actions is Plaintiff’s conclusory assertion that “relief can be granted 27 by way of Warden Marcus Pollard compensating [Plaintiff] the amount requested d[ue] to 28 being responsible for the loss of [his] property and the mental anguish it has caused 1 [him] . . . .” (See FAC at 1.) This allegation fails plausibly to allege that Defendant 2 Pollard’s actions violated Plaintiff’s rights. See Iqbal, 556 U.S. at 678 (explaining that 3 “more than unadorned, the-defendant-unlawfully-harmed-me accusation[s]” are required 4 to state a plausible claim for relief (citing Twombly, 550 U.S. at 555)). For this reason 5 alone, Plaintiff’s First Amended Complaint must be dismissed for failure to state a claim 6 upon which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii); 28 U.S.C. § 7 1915A(b)(1). 8 Second, “[c]ausation is, of course, a required element of a § 1983 claim.” Estate of 9 Brooks v. United States, 197 F.3d 1245, 1248 (9th Cir. 1999). Plaintiff has not connected 10 the actions of Defendant Pollard to the loss of his personal property. See Harper v. City of 11 Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008) (“In a § 1983 action, the plaintiff 12 must . . . demonstrate that the defendant’s conduct was the actionable cause of the claimed 13 injury. To meet this causation requirement, the plaintiff must establish both causation-in- 14 fact and proximate causation.”). Without alleging a causal connection between Defendant 15 Pollard’s actions and the alleged violation of Plaintiff’s rights, Plaintiff cannot state a claim 16 under Section 1983. See 28 U.S.C. § 1915(e)(2)(B)(ii); 28 U.S.C. § 1915A(b)(1). 17 For both of these reasons, Plaintiff’s First Amended Complaint is dismissed for 18 failure to state a claim upon which relief may be granted. See 28 U.S.C. § 19 1915(e)(2)(B)(ii); 28 U.S.C. § 1915A(b)(1). 20 D. Leave to Amend 21 Because Plaintiff has already been provided a short and plain statement of his 22 pleading deficiencies, as well as an opportunity to amend those claims to no avail, the 23 Court finds that granting further leave to amend would be futile. See Gonzalez v. 24 Planned Parenthood, 759 F.3d 1112, 1116 (9th Cir. 2014) (“‘Futility of amendment can, 25 by itself, justify the denial of . . . leave to amend.’”) (quoting Bonin v. Calderon, 59 F.3d 26 815, 845 (9th Cir. 1995)); Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 1007 27 (9th Cir. 2009) (“[W]here the plaintiff has previously been granted leave to amend and 28 has subsequently failed to add the requisite particularity to its claims, [t]he district court’s 1 discretion to deny leave to amend is particularly broad.” (internal quotation marks 2 omitted) (second alteration in original)). 3 III. Conclusion and Orders 4 For the reasons discussed, the Court: 5 1) DISMISSES this civil action without further leave to amend for failure to 6 state a claim upon which Section 1983 relief can be granted pursuant to 28 U.S.C. 7 Section 1915(e)(2)(B)(ii) and 28 U.S.C. Section 1915A(b)(1); 8 2) CERTIFIES that an IFP appeal would not be taken in good faith pursuant 9 to 28 U.S.C. Section 1915(a)(3); and 10 3) DIRECTS the Clerk of Court to enter a final judgment of dismissal and 11 close the file. 12 IT IS SO ORDERED. 13 Dated: May 5, 2021 14 Hon. Dana M. Sabraw, Chief Judge United States District Court 15 16 17 18 19 20 21 22 23 24 25 26 27 28