(PC) Sekona v. Bradley, et al., No. 2:2017cv02484 - Document 19 (E.D. Cal. 2019)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 4/18/2019 RECOMMENDING 14 Amended Prisoner Civil Rights Complaint be dismissed without further leave to amend and the Clerk of Court be directed to close this case. Referred to Judge Morrison C. England, Jr. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)
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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 ETUATE SEKONA, 12 13 14 No. 2:17-cv-02484 MCE CKD P Plaintiff, v. FINDINGS AND RECOMMENDATIONS OFFICER BRADLEY, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights 18 action filed pursuant to 42 U.S.C. § 1983. This proceeding was referred to this court pursuant to 19 28 U.S.C. § 636(b)(1) and Local Rule 302. Plaintiff’s first amended complaint is now before the 20 court for screening following this court’s May 23, 2018 order dismissing his original complaint 21 with leave to amend as to certain claims and defendants. See ECF No. 9. By order dated 22 September 4, 2018, the district court judge assigned to this case dismissed defendant Hang with 23 prejudice based on the duplicative nature of the allegations in the complaint. ECF No. 15. The 24 court also dismissed the due process claim against defendant Bradley and the official capacity 25 claims against defendant Bradley and Santillan all without leave to amend. Id. 26 I. 27 The court is required to screen complaints brought by prisoners seeking relief against a 28 Screening Standard governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 1 1 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 2 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 3 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 4 II. Allegations in the First Amended Complaint 5 While an inmate at Mule Creek State Prison, plaintiff contends that defendant Bradley 6 required him to wait outside in the 30-degree weather without a jacket or beanie on his head for 7 “about 3 hours” on December 29, 2015 in order to provide a urine sample. ECF No. 14 at 3. 8 After waiting this period of time, plaintiff was ordered to take off all his clothes before he 9 provided a urine sample. Id. at 3-5. Plaintiff asserts that this violated state prison regulations and 10 caused him to suffer dizziness, high blood pressure, and exacerbated his PTSD and CTE 11 symptoms. Id. at 3. Ultimately, plaintiff decided not to provide a urine sample and was issued a 12 rule violation report by defendant Bradley. Id. at 5. 13 At the January 2, 2016 disciplinary hearing on the rule violation, plaintiff alleges that 14 defendant Santillan denied him witnesses. ECF No. 14 at 10-21. However, plaintiff never 15 identifies any particular witness that he requested at his hearing or describes how such testimony 16 would have assisted him. 17 Plaintiff also alleges that defendants’ conduct was retaliatory in nature because plaintiff 18 filed a civil rights lawsuit against other Mule Creek prison guards in March of 2016. ECF No. 14 19 at 8, 22. However, the lawsuit was not filed until after the events alleged in the amended 20 complaint. 21 III. 22 The court finds that plaintiff has failed to cure any of the deficiencies identified in his Analysis 23 original complaint with respect to the allegations against either defendant Bradley or Santillan. In 24 the screening order of plaintiff’s original complaint, plaintiff was advised that he failed to allege 25 that defendant Bradley knew of and disregarded an excessive risk to his health and safety by 26 making him wait outside in the cold. ECF No. 9 at 5. This was fatal to any Eighth Amendment 27 claim for relief. The court previously granted plaintiff leave to amend this claim. However, 28 plaintiff has not provided any additional information in the first amended complaint with respect 2 1 to this allegation. Accordingly, plaintiff has failed to state a valid Eighth Amendment claim 2 against defendant Bradley. 3 Likewise, the procedural due process claim against defendant Santillan once again fails to 4 state a claim for relief. Plaintiff asserts that she failed to call witnesses at his prison disciplinary 5 hearing, but the court previously informed plaintiff that the failure to call unspecified witnesses is 6 not enough to state a cognizable due process claim. ECF No. 9 at 7. Leave to amend this claim 7 was granted, but plaintiff has failed to correct this deficiency in his first amended complaint. 8 With respect to plaintiff’s alleged retaliation claim, the court previously found that the 9 complaint failed to state sufficient facts that show the link between plaintiff’s filing of a lawsuit 10 in 2016 and defendants’ knowledge of such a lawsuit in order to establish the requisite animus 11 behind defendants’ actions. ECF No. 9 at 6. Plaintiff now alleges that “all officials in MCSP 12 knew about it,” but the court takes judicial notice of the fact that this lawsuit was not filed until 13 March 2016, after the events alleged in the amended complaint. Therefore, it does not provide a 14 sufficient factual basis upon which plaintiff can predicate a retaliation claim against defendants. 15 III. 16 In dismissing a complaint, leave to amend should be granted if it appears possible that the 17 defects in the complaint could be corrected, especially if a plaintiff is pro se. Lopez v. Smith, 203 18 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc); Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 19 1995) (“A pro se litigant must be given leave to amend his or her complaint, and some notice of 20 its deficiencies, unless it is absolutely clear that the deficiencies of the complaint could not be 21 cured by amendment.” (citing Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) ). However, 22 if, after careful consideration, it is clear that a complaint cannot be cured by amendment, the court 23 may dismiss without leave to amend. Cato, 70 F.3d at 1005-06. 24 No Leave to Amend Despite the instructions plaintiff was given regarding the type of information necessary to 25 state a claim for relief, the allegations in the first amended complaint still fall far short of a 26 constitutional violation. The court therefore concludes that plaintiff has no further facts to allege 27 and is convinced that further opportunities to amend would be futile. Accordingly, the 28 undersigned recommends that the complaint be dismissed without leave to amend. 3 1 IV. Plain Language Summary for Pro Se Party 2 Since plaintiff is acting as his own attorney in this case, the court wants to make sure that 3 this order is understood. The following information is meant to explain this order in plain English 4 and is not intended as legal advice. 5 The court has read the allegations in your first amended complaint and is recommending 6 that it be dismissed without leave to amend because the things that you are complaining about do 7 not state constitutional violations. If this recommendation is accepted by the district court judge 8 assigned to your case, this case will not proceed any further and this civil action will be closed. If 9 you disagree with this outcome in your case, you may file written “Objections to the Magistrate 10 Judge’s Findings and Recommendations” within 14 days from the date of this order. 11 In accordance with the above, IT IS HEREBY RECOMMENDED that: 12 1. Plaintiff’s first amended complaint be dismissed without further leave to amend. 13 2. The Clerk of Court be directed to close this case. 14 These findings and recommendations are submitted to the United States District Judge 15 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 16 after being served with these findings and recommendations, any party may file written 17 objections with the court and serve a copy on all parties. Such a document should be captioned 18 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 19 objections shall be served and filed within fourteen days after service of the objections. The 20 parties are advised that failure to file objections within the specified time may waive the right to 21 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 22 Dated: April 18, 2019 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 12/seko2484.14amd.new.docx 4
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