United States District Court, E.D. California
KENNETH R. HENRY, Plaintiff,
MIRANDA, et al., Defendants.
ORDER DISMISSING ACTION (ECF NO. 23) ORDER THAT
DISMISSAL IS SUBJECT TO 28 U.S.C. § 1915(G) ORDER
DIRECTING CLERK TO CLOSE CASE
R. Henry (“Plaintiff”) is a former state prisoner
proceeding pro se and in forma pauperis
with this civil rights action pursuant to 42 U.S.C. §
1983, which includes state law claims. Plaintiff filed
the Complaint commencing this action on April 1, 2016. (ECF
No. 1). Plaintiff filed a First Amended Complaint
(“FAC”) on November 4, 2016 (ECF No. 16), which
was dismissed with leave to amend (ECF No. 18). Plaintiff
filed a Second Amended Complaint (“SAC”) on
December 27, 2016 (ECF No. 19), which was dismissed with
leave to amend. (ECF No. 20). Plaintiff filed a Third Amended
Complaint (“TAC”) on March 22, 2017, which is now
before the Court for screening.
has consented to Magistrate Judge jurisdiction in this action
pursuant to 28 U.S.C. § 636(c) (ECF Nos. 3, 8), and no
other parties have made an appearance. Therefore, pursuant to
Appendix A(k)(4) of the Local Rules of the Eastern District
of California, the undersigned shall conduct any and all
proceedings in the case until such time as reassignment to a
District Judge is required. Local Rule Appendix A(k)(3).
Court's first screening order in this case, the Court
found that that the First Amended Complaint failed to state a
cognizable § 1983 claim against any defendant. (ECF No.
18). The Court notified Plaintiff that placement in a work
assignment, even over Plaintiff's strenuous and
well-founded objections, does not state a violation of the
constitution. Plaintiff's allegations about retaliation
for filing grievances did not state a claim absent additional
facts demonstrating the basis for Plaintiff's belief that
the adverse action was due to Plaintiff filing grievances.
Plaintiff failed to state a claim for violation of the equal
protection clause because he alleged no facts that showed
that the reason he was placed on E-yard Kitchen duty despite
his protests or given allegedly false write-ups was because
he is an African-American. Finally, because Plaintiff had not
stated a cognizable claim under federal law, the Court could
not exercise supplemental jurisdiction over Plaintiff's
state law claims. The Court did not make a determination
about the viability of Plaintiff's state law claims. The
Court provided legal standards for claims under the due
process clause, the equal protection clause, the Eighth
Amendment and the First Amendment, and gave Plaintiff leave
Court's second screening order in this case, the Court
found that Plaintiff once again failed to state a cognizable
section 1983 claim. (ECF No. 20). The SAC focused less on
Plaintiff's E-yard Kitchen duty and more on the
retaliation and conspiracy claims, but once again the
complaint lacked sufficient facts that would demonstrate that
any adverse action was due to Plaintiff filing grievances.
Because Plaintiff had not stated a cognizable claim under
federal law, the Court could not to exercise supplemental
jurisdiction over Plaintiff's state law claims. The Court
did not make a determination about the viability of
Plaintiff's state law claims. The Court once again
provided Plaintiff with the applicable legal standards, and
gave Plaintiff leave to amend.
does not contain any new factual allegations. In fact, the
section containing Plaintiff's factual allegations is one
paragraph long, as follows:
On 7-17-15 Plaintiff Henry 8th and 14th
Amendments was grossly violated by all three defendants
(Miranda, Torres, and Luna) to cruel and unusual punishment
to cause great harm in a maliciously and sadistically way.
Plaintiff receive five false write-ups accusations that was
done in retaliation for Plaintiff exercising of his
constitutional rights. Plaintiff allege the false write-ups
and the adverse job position were given to Plaintiff in
retaliation for written complaints against defendants and
saying hello to female staff.
(ECF No. 23, at p. 3). For the reasons stated in previous
orders, and because this statement lacks facts supporting the
legal conclusions, these allegations do not state a claim for
violation of constitutional law.
the Court finds that Plaintiff's TAC fails to state a
claim upon which relief may be granted under § 1983.
Because Plaintiff has failed to state a claim under federal
law, the Court cannot exercise supplemental jurisdiction over
Plaintiff's state law claims (although it does not appear
that Plaintiff's TAC included any state law claims in
this version of the complaint).
Court will not give Plaintiff further leave to amend. After
providing ample guidance, the Court has twice granted
Plaintiff leave to amend the complaint. Plaintiff has now
filed three complaints without stating any claims upon which
relief may be granted under § 1983. The Court finds that
Plaintiff cannot cure the deficiencies outlined above and in
the two prior screening orders by amendment, and therefore
will not grant further leave to amend. 28 U.S.C. §
1915(e)(2)(B)(ii); Lopez v. Smith, 203 F.3d 1122,
1127 (9th Cir. 2000).
§ 1983 claims will be dismissed with prejudice, because
Plaintiff failed to state a claim upon which relief may be
granted. Because the Court has declined to exercise
supplemental jurisdiction over Plaintiff's state law
claims, to the extent that Plaintiff attempted to assert
state law claims in his TAC, the Court will dismiss those
claims without prejudice.
based on the foregoing, IT IS HEREBY ORDERED that:
1. This action is DISMISSED pursuant to 28 U.S.C. §
1915A and 28 U.S.C. ...