(PC) Grant v. Covello et al, No. 2:2021cv01878 - Document 22 (E.D. Cal. 2023)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Jeremy D. Peterson on 4/25/2023 ORDERING that the Clerk of Court assign a district judge to this action and RECOMMENDING that 21 Third Amended Prisoner Civil Rights Complaint be dismissed without further leave to amend for failure to state a claim. Senior Judge William B. Shubb and Magistrate Judge Jeremy D. Peterson assigned for all further proceedings. Referred to Senior Judge William B. Shubb. Objections due within 14 days after being served with these findings and recommendations. New Case No: 2:21-cv-1878-WBS-JDP (PC). (Huang, H)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 BOBBY RAY GRANT, JR., 11 12 13 14 15 16 17 Plaintiff, v. PATRICK COVELLO, et al., Defendants. Case No. 2:21-cv-01878-JDP (PC) ORDER THAT THE CLERK OF COURT ASSIGN A DISTRICT JUDGE TO THIS ACTION FINDINGS AND RECOMMENDATIONS THAT THE THIRD AMENDED COMPLAINT BE DISMISSED FOR FAILURE TO STATE A CLAIM ECF No. 21 FOURTEEN-DAY DEADLINE FOR OBJECTIONS 18 19 20 Plaintiff, a state prisoner, has filed a third amended complaint that contains two unrelated 21 claims, neither of which is cognizable. I have found three of plaintiff’s earlier complaints 22 insufficient to proceed past screening. ECF Nos. 8, 16, & 20. In my last screening order, I 23 warned plaintiff that he would have one final opportunity to amend. ECF No. 20 at 1. Plaintiff’s 24 third amended complaint, like its predecessors, fails to state a cognizable claim. I now 25 recommend that this action be dismissed for failure to state a claim. 26 27 28 1 1 Screening Order 2 I. Screening and Pleading Requirements 3 A federal court must screen a prisoner’s complaint that seeks relief against a governmental 4 entity, officer, or employee. See 28 U.S.C. § 1915A(a). The court must identify any cognizable 5 claims and dismiss any portion of the complaint that is frivolous or malicious, fails to state a 6 claim upon which relief may be granted, or seeks monetary relief from a defendant who is 7 immune from such relief. See 28 U.S.C. §§ 1915A(b)(1), (2). 8 A complaint must contain a short and plain statement that plaintiff is entitled to relief, 9 Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its 10 face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not 11 require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S. 12 662, 678 (2009). If the allegations “do not permit the court to infer more than the mere 13 possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not 14 identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 15 1038 (9th Cir. 2016). Instead, what plaintiff must state is a “claim”—a set of “allegations that 16 give rise to an enforceable right to relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264 17 n.2 (9th Cir. 2006) (en banc) (citations omitted). 18 The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404 19 U.S. 519, 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint “if it 20 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 21 would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017). 22 However, “‘a liberal interpretation of a civil rights complaint may not supply essential elements 23 of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 24 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). 25 II. Analysis 26 Plaintiff’s third amended complaint contains two separate and unrelated claims. First, he 27 alleges that defendant Hernandez, a registered nurse, failed to offer him adequate pain relief for a 28 knee injury. ECF No. 21 at 3. He provides no specifics as to either the nature of the injury or his 2 1 medical interactions with Hernandez. Id. He alleges only that she was disrespectful and used 2 profanity with him. Id. These allegations, while perhaps describing a lack of professionalism, do 3 not show deliberate indifference to serious medical needs. See Oltarzewski v. Ruggiero, 830 F.2d 4 136, 139 (9th Cir. 1987) (verbal harassment, standing alone, does not violate the constitution). 5 Second, plaintiff alleges that defendant Davenport, a correctional officer, authored a rules 6 violation report against him that contained “hearsay.” Id. at 4. To the extent he alleges that the 7 rules violation report violated prison regulations, plaintiff fails to state a claim. See Cousins v. 8 Lockyer, 568 F.3d 1063, 1070 (9th Cir. 2009) (California prison regulations do not give rise to 9 constitutional claims.). Similarly, a false rules violation report does not, on its own, give rise to a 10 constitutional violation. See Lopez v. Celaya, C 06-5071 TEH (PR), 2008 U.S. Dist. LEXIS 11 8898, 2008 WL 205256, *5 (N.D. Cal. 2008) (“A prisoner has no constitutionally guaranteed 12 immunity from being wrongly or falsely accused of conduct which may result in the deprivation 13 of a protected liberty interest.”). The only link between this claim and the alleged denial of 14 adequate medical care is that Davenport allegedly admitted that the rules violation was issued 15 because of plaintiff’s disrespect toward defendant Hernandez. ECF No. 21 at 4. Plaintiff claims 16 that Davenport’s actions were retaliatory and, therefore, violative of his First Amendment rights. 17 Id. A valid first Amendment retaliation claim, however, requires that the retaliation be 18 undertaken as reprisal for some protected conduct. See O’Brian v. Welty, 818 F.3d 920, 932 (9th 19 Cir. 2016) (explaining that a claimant bringing a First Amendment retaliation claim must show, 20 among other elements, that he was engaged protected activity). Here, plaintiff does not allege 21 any protected conduct; he claims only that he exchanged insults and profanity with defendant 22 Hernandez. 23 In what might be another, separate claim, plaintiff alleges that defendants Davenport and 24 Pern wrote other, unspecified rules violation reports against him and even threatened him with 25 “felony prosecution” if he continued to call “man down.” ECF No. 21 at 5. These allegations are 26 too vague to state a claim. Plaintiff provides no details as to these other rules violation reports or 27 the circumstances that led to the alleged threat of felony prosecution. Absent any specific, factual 28 allegations, I find that plaintiff has failed to comply with federal pleading standards. See Bell 3 1 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (“Factual allegations must be enough to 2 raise a right to relief above the speculative level . . . .”). 3 This is plaintiff’s third amended complaint, and he is no closer to bringing a viable claim 4 that can proceed past screening. Accordingly, I find that continuing to offer him leave to amend 5 would be futile. 6 Accordingly, it is ORDERED that the Clerk of Court assign a district judge to this action. 7 Further, it is RECOMMENDED that the Third Amended Complaint, ECF No. 22, be 8 DISMISSED without further leave to amend and for failure to state a claim. 9 These findings and recommendations are submitted to the United States District Judge 10 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 11 after being served with these findings and recommendations, any party may file written 12 objections with the court and serve a copy on all parties. Such a document should be captioned 13 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 14 objections shall be served and filed within fourteen days after service of the objections. The 15 parties are advised that failure to file objections within the specified time may waive the right to 16 appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez 17 v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 18 19 IT IS SO ORDERED. 20 Dated: 21 22 April 25, 2023 JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 4

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