(PC) Puckett v. North Kern State Prison Employees, No. 1:2008cv01243 - Document 24 (E.D. Cal. 2009)
Court Description: ORDER DENYING 23 Motion for Court to Consider Documents without Prejudice; SUA SPONTE DISMISSING Defendants for Failing to State a Claim; ORDER DIRECTING PLAINTIFF TO SUBMIT SERVICE DOCUMENTS and USM-285 Forms signed by Judge Barry T. Moskowitz on 7/31/2009. Service is appropriate for Murguia, Hill, Zollenger, Biggs, Roth, Hense, Grannis. Clerk to send plaintiff: 7 Summons, 7 USM-285 Forms, and 1 copy of the Third Amended Complaint filed on 5/18/2009. Case Management Deadline: 9/8/2009. (Sant Agata, S)
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(PC) Puckett v. North Kern State Prison Employees Doc. 24 1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA FRESNO DIVISION 11 12 13 14 DURRELL PUCKETT, CDCR #G-05549, Civil No. 08-1243 BTM (POR) Plaintiff, 15 ORDER: 16 (1) DENYING MOTION FOR COURT TO CONSIDER DOCUMENTS WITHOUT PREJUDICE [Doc. No. 23] 17 18 vs. (2) SUA SPONTE DISMISSING DEFENDANTS FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. §§ 1915(e)(2) and 1915A(b); and 19 20 21 22 NORTH KERN STATE PRISON EMPLOYEES, et al., (3) ORDER DIRECTING U.S. MARSHAL TO EFFECT SERVICE OF PLAINTIFF’S THIRD AMENDED COMPLAINT ON DEFENDANTS MURGUIA, HILL, ZOLLENGER, BIGGS, ROTH, HENSE AND GRANNIS PURSUANT TO FED.R.CIV.P. 4(c)(3) AND 28 U.S.C. § 1915(d) 23 24 Defendants. 25 26 27 28 -1- 08cv1243 Dockets.Justia.com 1 I. 2 PROCEDURAL HISTORY 3 On August 22, 2008, Plaintiff, an inmate currently incarcerated at the California 4 Correctional Institute located in Tehachapi, California and proceeding pro se, filed a civil rights 5 Complaint pursuant to 42 U.S.C. § 1983. Plaintiff also filed a Motion to Proceed In Forma 6 Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) [Doc. No. 2]. The Court granted Plaintiff’s 7 Motion to Proceed IFP on August 28, 2008 [Doc. No. 4]. On November 26, 2008, this matter 8 was reassigned to District Judge Barry Ted Moskowitz for all further proceedings [Doc. No. 7]. 9 Plaintiff then filed a “Motion to Amend the Complaint” on December 12, 2008 [Doc. No. 8]. 10 However, Plaintiff may amend his Complaint once “as a matter of course before being served 11 with a responsive pleading.” FED.R.CIV.P. 15(a)(1)(A). Thus, the Court accepted Plaintiff’s 12 First Amended Complaint (“FAC”) for filing on December 15, 2008. On January 21, 2009, the 13 Court sua sponte screened Plaintiff’s First Amended Complaint and found that it contained 14 several causes of action that must be dismissed for failing to state a claim upon which relief 15 could be granted. See Jan. 21, 2009 Order at 3-9. Plaintiff was to inform the Court whether he 16 intended to proceed on the one cause of action that survived screening or file a Second Amended 17 Complaint. Id. Plaintiff chose to file a Second Amended Complaint but then sought leave to 18 further amend that pleading. On May 18, 2009, the Court accepted Plaintiff’s Third Amended 19 Complaint (“TAC”) for filing. 20 II. 21 SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b) 22 The Prison Litigation Reform Act (“PLRA”) obligates the Court to review complaints 23 filed by all persons proceeding IFP and by those, like Plaintiff, who are “incarcerated or detained 24 in any facility [and] accused of, sentenced for, or adjudicated delinquent for, violations of 25 criminal law or the terms or conditions of parole, probation, pretrial release, or diversionary 26 program,” “as soon as practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). 27 Under these provisions, the Court must sua sponte dismiss any IFP or prisoner complaint, or any 28 portion thereof, which is frivolous, malicious, fails to state a claim, or which seeks damages from -2- 08cv1243 1 defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 2 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Resnick v. Hayes, 213 F.3d 443, 3 446 (9th Cir. 2000) (§ 1915A). 4 Section 1983 imposes two essential proof requirements upon a claimant: (1) that a person 5 acting under color of state law committed the conduct at issue, and (2) that the conduct deprived 6 the claimant of some right, privilege, or immunity protected by the Constitution or laws of the 7 United States. See 42 U.S.C. § 1983. 8 As an initial matter, the Court finds that Plaintiff’s Third Amended Complaint suffers 9 from many of the same deficiencies of pleading previously identified in the Court’s January 21, 10 2009 Order. Most of Plaintiff’s claims must be dismissed because they lack clarity and even 11 liberally construing many of the claims, it is difficult to decipher the factual basis that underlies 12 the alleged constitutional violations. 13 A. Claims against Defendant Murguia 14 The Court finds, as it did in the previous Order, that Plaintiff has alleged sufficient facts 15 to state a retaliation claim against Defendant Murguia. However, Plaintiff has failed to state any 16 other claim against Defendant Murguia. For example, Plaintiff alleges that Defendant Murguia 17 wrote a “false report” of “threatening a peace officer” which led to Plaintiff being housed in the 18 Administrative Segregation (“Ad-Seg”) unit for forty five (45) days. (TAC at 3.) Plaintiff was 19 informed that in order to state a Fourteenth Amendment due process claim he must allege facts 20 which show that Defendants: (1) restrained his freedom in a manner not expected from his 21 sentence, and (2) “impose[d] atypical and significant hardship on [him] in relation to the 22 ordinary incidents of prison life.” See Jan. 21, 2009 Order at 8 (citing Sandin v. Conner, 515 23 U.S. 472, 484 (1995)). Plaintiff has alleged no facts to show that the forty five (45) days he 24 spent in Ad-Seg imposed an “atypical and significant hardship” and thus, he has not stated a 25 Fourteenth Amendment due process claim against Murguia. 26 In addition, Plaintiff claims that Defendant Murguia “told the nurse not to provide 27 medication [or] cleansing of [Plaintiff’s] stab wounds.” (TAC at 3.) There are no facts to 28 suggest that the nurse or any other medical personnel acted on Murguia’s request to deny -3- 08cv1243 1 Plaintiff medical care. Where a prisoner’s Eighth Amendment claim is one of inadequate 2 medical care, the prisoner must allege “acts or omissions sufficiently harmful to evidence 3 deliberate indifference to serious medical needs.” See Jan. 21, 2009 Order at 4 (citing Estelle v. 4 Gamble , 429 U.S. 97, 106 (1976)). Assuming Plaintiff’s statements to be true, the only 5 allegation is a verbal statement by Murguia. There are no allegations that Murguia played an 6 actual role in the medical attention, or lack thereof, given to Plaintiff. 7 8 9 Thus, all the claims against Defendant Murguia are dismissed with the exception of Plaintiff’s retaliation claim for failing to state a claim upon which relief may be granted. B. Claims against Defendants Hill, Zollenger, Biggs, Roth, Hense, Grannis 10 Plaintiff alleges that Defendant Hill insinuated that he was a “child molester and [an] 11 informant” and as a result of these statements he was “stabbed several times.” (TAC at 7.) 12 Plaintiff further alleges that Defendant Zollenger was present when Hill made these statements 13 but took no action to protect him from harm. (Id. at 8.) Finally, Plaintiff alleges that he 14 informed Defendants Biggs, Roth, Hense and Grannis of his fears of being attacked by other 15 inmates due to these allegedly false statements but they took no action to protect him from harm. 16 The Court finds that these Eighth Amendment failure to protect allegations survive the sua 17 sponte screening pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A. 18 C. Remaining claims 19 Plaintiff alleges a variety of other claims which the Court had previously dismissed in the 20 January 21, 2009 Order but has failed to correct any of the deficiencies of pleading as to these 21 claims. 22 Throughout his Third Amended Complaint, Plaintiff refers to “differential treatment” 23 which the Court liberally construes to be a Fourteenth Amendment equal protection claim. For 24 example, Plaintiff claims that Defendants “showed differential treatment by having my cellmate 25 return back my 602 to me or he can’t get his insulin shot.” (TAC at 4.) Plaintiff suggests that 26 these actions are discriminatory because they promote “racial profiling.” (Id.) 27 The “Equal Protection Clause of the Fourteenth Amendment commands that no State 28 shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is -4- 08cv1243 1 essentially a direction that all persons similarly situated should be treated alike.” City of 2 Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985); Shaw v. Reno, 509 U.S. 630 3 (1993). Prisoners are protected by the Equal Protection clause against discrimination based on 4 race. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). 5 However, conclusory allegations of discrimination are insufficient to withstand a motion 6 to dismiss, unless they are supported by facts that may prove invidious discriminatory intent or 7 purpose. Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977). 8 Therefore, when an equal protection violation is alleged, the plaintiff must plead facts to show 9 that the defendant “acted in a discriminatory manner and that the discrimination was 10 intentional.” FDIC v. Henderson, 940 F.2d 465, 471 (9th Cir. 1991) (citations omitted). 11 “‘Discriminatory purpose’ . . . implies more than intent as volition or intent as awareness of 12 consequences. It implies that the decision maker . . . selected or reaffirmed a particular course 13 of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an 14 identifiable group.” Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979). 15 There are no facts in Plaintiff’s Third Amended Complaint linking the actions of 16 Defendants to a discriminatory purpose. (See TAC at 4.) However, Plaintiff does not allege that 17 any of the actions taken by Defendants were based on intentional racial discrimination. Thus, 18 Plaintiff’s Fourteenth Amendment Equal Protection claims are dismissed. 19 Finally, Plaintiff claims throughout his Third Amended Complaint that various 20 Defendants called him names. However, claims of verbal harassment generally do not rise to 21 the level of an Eighth Amendment violation. See Jan. 21, 2009 Order at 4 (citing Keenan v. 22 Hall, 83 F.3d 1083, 1092 (9th Cir. 1996)). 23 D. U.S. Marshal Service 24 In conclusion, the Court finds that Plaintiff’s retaliation claims against Defendant 25 Murguia and the Eighth Amendment failure to protect claims against Hill, Zollenger, Biggs, 26 Roth, Hense and Grannis in his Third Amended Complaint survive the sua sponte screening 27 required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and that Plaintiff is therefore entitled to U.S. 28 Marshal service on his behalf. See Lopez, 203 F.3d at 1126-27; 28 U.S.C. § 1915(d) (“The -5- 08cv1243 1 officers of the court shall issue and serve all process, and perform all duties in [IFP] cases.”); 2 FED.R.CIV.P. 4(c)(3) (providing that “service be effected by a United States marshal, deputy 3 Untied States marshal, or other officer specially appointed by the court ... when the plaintiff is 4 authorized to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.”). Plaintiff is cautioned, 5 however, that “the sua sponte screening and dismissal procedure is cumulative of, and not a 6 substitute for, any subsequent Rule 12(b)(6) motion that [a defendant] may choose to bring.” 7 Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D. Cal. 2007). 8 All the remaining claims against all the remaining Defendants are dismissed for failing 9 to state a claim upon which § 1983 relief may be granted for all the reasons set forth in this 10 Order and the Court’s January 21, 2009 Order. 11 III. 12 PLAINTIFF’S MOTION FOR COURT TO CONSIDER DOCUMENTS 13 On June 1, 2009, Plaintiff filed a Motion in which he requests the Court to consider 14 affidavits filed by fellow inmates in support of his Third Amended Complaint [Doc. No. 23]. 15 The filing of the affidavits is premature and is better left for consideration after Defendants have 16 appeared in the action. If Defendants file a Motion to Dismiss or Motion for Summary 17 Judgment, Plaintiff may file a request with the Court to consider these documents. Defendants 18 will be given the opportunity to respond. Thus, Plaintiff’s “Motion to Consider Documents” 19 [Doc. No. 23] is DENIED without prejudice. 20 IV. 21 CONCLUSION AND ORDER 22 Good cause appearing, IT IS HEREBY ORDERED that: 23 (1) 24 prejudice. 25 (2) Plaintiff’s “Motion to Consider Documents” [Doc. No. 23] is DENIED without Plaintiff’s claims against Defendants Cortes, Roberts, Waters, J. Smith, Agra and 26 Casarez are DISMISSED without prejudice for failing to state a claim upon which relief may 27 be granted. See 28 U.S.C. §§ 1915(e)(2)(b) & 1915A(b). 28 opportunities to correct the deficiencies as to these claims, the Court finds amendment of -6- Because Plaintiff has had three 08cv1243 1 Plaintiff’s § 1983 claims as to Defendants Cortes, Roberts, Waters, Smith, Agra and Casarez 2 would be futile at this time, and DENIES leave to amend these claims. See Cahill v. Liberty 3 Mut. Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996) (denial of a leave to amend is not an abuse of 4 discretion where further amendment would be futile). 5 (3) The Clerk shall issue a summons upon the Defendants Murguia, Hill, Zollenger, 6 Biggs, Roth, Hense and Grannis and forward it to Plaintiff along with a blank U.S. Marshal 7 Form 285 for each of these Defendants. In addition, the Clerk shall provide Plaintiff with a 8 certified copy of this Order, and certified copies of his Third Amended Complaint and the 9 summons for purposes of serving each of these Defendants. Upon receipt of this “IFP Package,” 10 Plaintiff is directed to complete the Form 285s as completely and accurately as possible, and to 11 return them according to the instructions provided by the Clerk in the letter accompanying his 12 IFP package. Thereafter, the U.S. Marshal shall serve a copy of the Third Amended Complaint 13 and summons upon each Defendant as directed by Plaintiff on each Form 285. All costs of 14 service shall be advanced by the United States. See 28 U.S.C. § 1915(d); FED.R.CIV.P. 4(c)(3). 15 (4) Plaintiff shall serve upon Defendants or, if appearance has been entered by 16 counsel, upon Defendants’ counsel, a copy of every further pleading or other document 17 submitted for consideration of the Court. Plaintiff shall include with the original paper to be 18 filed with the Clerk of the Court a certificate stating the manner in which a true and correct copy 19 of any document was served on Defendants, or counsel for Defendants, and the date of service. 20 Any paper received by the Court which has not been filed with the Clerk or which fails to 21 include a Certificate of Service will be disregarded. 22 23 DATED: July 31, 2009 24 25 Honorable Barry Ted Moskowitz United States District Judge 26 27 28 -7- 08cv1243
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