(PC) Brown v. CDCR Medical Care System, No. 2:2017cv01833 - Document 22 (E.D. Cal. 2018)
Court Description: ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 10/3/2018 ORDERING the Clerk to assign a district court judge to this case and RECOMMENDING plaintiff's 19 fourth amended complaint be dismissed for failure to state a claim upon which relief can be granted, and this case be closed. Assigned and referred to Judge Troy L. Nunley; Objections to F&R due within 14 days. (Yin, K)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KENNY BROWN, 12 13 14 15 No. 2:17-cv-1833 CKD P Plaintiff, v. ORDER AND CDCR MEDICAL CARE SYSTEM, FINDINGS AND RECOMMENDATIONS Defendant. 16 17 Plaintiff is a California prisoner proceeding without counsel. Plaintiff seeks relief 18 pursuant to 42 U.S.C. § 1983, and is proceeding in forma pauperis. This proceeding was referred 19 to this court pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302. 20 On November 8, 2017, the court screened plaintiff’s complaint, as the court is required to 21 do under 28 U.S.C. § 1915A(a). The court found the complaint failed to state a claim upon which 22 relief can be granted and dismissed with leave to amend. The court provided plaintiff with 23 guidance as to the contents of his amended complaint. 24 On May 3, 2018, the court screened plaintiff’s amended complaint. The amended 25 complaint was also dismissed for failure to state a claim upon which relief can be granted and 26 leave to amend a second time was granted. Again, the court provided plaintiff with guidance as 27 to how to proceed. In response to the court’s order, plaintiff has filed a second, third and fourth 28 amended complaint. As plaintiff knows, Local Rule 220 requires that any amended complaint be 1 1 complete in itself without reference to any prior pleading. See ECF Nos. 5 at 3 & 12 at 2. 2 Therefore, the court will now screen plaintiff’s latest amended complaint, the fourth amended. 3 As plaintiff also already knows, the court must dismiss a complaint or portion thereof if 4 the prisoner has raised claims that are legally “frivolous or malicious,” that fail to state a claim 5 upon which relief may be granted, or that seek monetary relief from a defendant who is immune 6 from such relief. 28 U.S.C. § 1915A(b)(1), (2). 7 Generally speaking, plaintiff complains about his conviction, sentence and medical care in 8 his fourth amended complaint. As with his original and first amended complaints, the allegations 9 are too vague to state a claim upon which relief might be granted under the Eighth Amendment 10 for denial of medical care despite the fact that in the court’s previous two screening orders, 11 plaintiff was instructed as to the requirements for stating a claim. As for his conviction and 12 sentence, when a state prisoner challenges the legality of his custody and the relief he seeks is the 13 determination of his entitlement to an earlier or immediate release, his sole federal remedy is a 14 writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). For these reasons, plaintiff’s fourth amended complaint fails to state a claim upon which 15 16 relief can be granted and must be dismissed. Providing plaintiff with advice a third time as to 17 how he might state a claim upon which he might proceed under the Eighth Amendment, and 18 providing plaintiff leave to file a fifth amended complaint appear futile.1 Therefore, leave to 19 amend will not be granted. 20 Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court assign a district 21 court judge to this case. 22 ///// 23 ///// 24 ///// 25 ///// 26 27 28 The court has reviewed plaintiff’s second and third amended complaints. Neither of those pleadings state a claim upon which relief can be granted, and neither suggest any reasonable basis for again granting plaintiff leave to amend. 2 1 1 IT IS HEREBY RECOMMENDED that: 2 1. Plaintiff’s fourth amended complaint (ECF No. 19) be dismissed for failure to state a 3 claim upon which relief can be granted; and 4 2. This case be closed. 5 These findings and recommendations are submitted to the United States District Judge 6 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen after 7 being served with these findings and recommendations, plaintiff may file written objections with 8 the court. The document should be captioned “Objections to Magistrate Judge’s Findings and 9 Recommendations.” Plaintiff is advised that failure to file objections within the specified time 10 waives the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 11 1991). 12 Dated: October 3, 2018 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 1 brow1833.frs 19 20 21 22 23 24 25 26 27 28 3
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