(PC) Amburn v. Raoul, No. 2:2014cv02315 - Document 7 (E.D. Cal. 2014)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 10/30/14 RECOMMENDING that this action be dismissed. Referred to Judge John A. Mendez; Objections to F&R due within 14 days.(Dillon, M)

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(PC) Amburn v. Raoul Doc. 7 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DANIEL LEE AMBURN, 12 13 14 15 16 17 18 19 No. 2:14-CV-2315-JAM-CMK-P Plaintiff, vs. FINDINGS AND RECOMMENDATIONS RAOUL, et al., Defendants. / Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff’s complaint (Doc. 1). The court is required to screen complaints brought by prisoners seeking relief 20 against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 21 § 1915A(a). The court must dismiss a complaint or portion thereof if it: (1) is frivolous or 22 malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief 23 from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover, 24 the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain 25 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). 26 This means that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 1 Dockets.Justia.com 1 84 F.3d 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied 2 if the complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon 3 which it rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must 4 allege with at least some degree of particularity overt acts by specific defendants which support 5 the claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is 6 impossible for the court to conduct the screening required by law when the allegations are vague 7 and conclusory. 8 9 Plaintiff names as defendant Raoul, the “P.M. Kitchen Supervisor.” Plaintiff alleges: 10 On Oct. 25th 2013 reported to work as a P.M. cook. . . . After preparing the evening meal, connected a hose to the water faucet located between pots (2) and (3). As I stepped back on the trough grating running in front of the pot it gave way and my left foot dropped down into the trough. This trough is approximately 6" deep and runs the length of all (15) pots. This trough is used to collect water from cleaning the pots and floor. There are (3) grates over each trough. The (1) grate at the end of my trough had been having an ongoing problem of dropping down into the trough. Kitchen staff had been notified on numerous occasions by both the A.M. and P.M. kitchen workers. Told that work orders had been turned in to resolve the problem. After my injury maintenance came in the next day and repaired the trough and grating! 11 12 13 14 15 16 17 Plaintiff then describes injuries sustained to his foot as a result of the incident. He states that he 18 was sent to the medical clinic where he was given a “cast boot and crutches.” Plaintiff adds: 19 20 The whole incident could have been avoided if kitchen staff and prison maintenance would have taken more seriously the kitchen workers’ concerns with the working environment, i.e., grating and trough. 21 Section 1983 provides a remedy for violations of constitutional rights. 22 See Buckley v. City of Redding. 66 F.3d 188 (9th Cir. 1995). It does not provide a cause of 23 action for violations of state law. See Ove v. Gwinn, 264 F.3d 817 (9th Cir. 2001). In this case, 24 plaintiff’s alleged facts clearly state a negligence claim under state law. Plaintiff does not, 25 however, allege a violation of a constitutional right. 26 /// 2 1 Because it does not appear possible that the deficiencies identified herein can be 2 cured by amending the complaint, plaintiff is not entitled to leave to amend prior to dismissal of 3 the entire action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). 4 5 Based on the foregoing, the undersigned recommends that this action be dismissed. 6 These findings and recommendations are submitted to the United States District 7 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 8 after being served with these findings and recommendations, any party may file written 9 objections with the court. Responses to objections shall be filed within 14 days after service of 10 objections. Failure to file objections within the specified time may waive the right to appeal. 11 See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 12 13 14 15 DATED: October 30, 2014 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 3

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