United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS TO DISMISS FEDERAL
CLAIMS WITH PREJUDICE FOR FAILURE TO STATE A CLAIM AND
DISMISS STATE CLAIMS WITHOUT PREJUDICE FOR LACK OF
JURISDICTION (ECF NO. 12) OBJECTIONS DUE WITHIN TWENTY-ONE
(21) DAYS
I.
BACKGROUND
Christopher
Lipsey, Jr. (“Plaintiff”) is a state prisoner
proceeding pro se and in forma pauperis in
this civil rights action filed pursuant to 42 U.S.C. §
1983. Plaintiff filed his original complaint on July 6, 2017.
(ECF No. 1). He filed a First Amended Complaint on October
11, 2017 (ECF No. 9), and a Second Amended Complaint on March
7, 2018 (which was labelled “First Amended
Complaint”) (ECF No. 12). Plaintiff asserts that a
nurse filed a false report against him, allegedly because he
used a disrespectful name to refer to her. The false report
was filed weeks after the nurse complained about staying late
for Plaintiff's suicide watch.
For the
reasons described below, the Court recommends that this case
be dismissed because Plaintiff failed to state a claim upon
which relief may be granted. Plaintiff may file objections to
these findings and recommendations within twenty-one (21)
days from the date of service of this order.
II.
SCREENING REQUIREMENT
The
Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or officer or
employee of a governmental entity. 28 U.S.C. § 1915A(a).
The Court must dismiss a complaint or portion thereof if the
prisoner has raised claims that are legally “frivolous
or malicious, ” that fail to state a claim upon which
relief may be granted, or that seek monetary relief from a
defendant who is immune from such relief. 28 U.S.C. §
1915A(b)(1), (2). As Plaintiff is proceeding in forma
pauperis (ECF No. 5), the Court may also screen the
complaint under 28 U.S.C. § 1915. “Notwithstanding
any filing fee, or any portion thereof, that may have been
paid, the court shall dismiss the case at any time if the
court determines that the action or appeal fails to state a
claim upon which relief may be granted.” 28 U.S.C.
§ 1915(e)(2)(B)(ii).
A
complaint is required to contain “a short and plain
statement of the claim showing that the pleader is entitled
to relief.” Fed.R.Civ.P. 8(a)(2). Detailed factual
allegations are not required, but “[t]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007)). Plaintiff must set forth “sufficient factual
matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.'” Id.
(quoting Twombly, 550 U.S. at 570). The mere
possibility of misconduct falls short of meeting this
plausibility standard. Id. at 679. While a
plaintiff's allegations are taken as true, courts
“are not required to indulge unwarranted
inferences.” Doe I v. Wal-Mart Stores, Inc.,
572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks
and citation omitted). Additionally, a plaintiff's legal
conclusions are not accepted as true. Iqbal, 556
U.S. at 678.
Pleadings
of pro se plaintiffs “must be held to less
stringent standards than formal pleadings drafted by
lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342
(9th Cir. 2010) (holding that pro se complaints
should continue to be liberally construed after
Iqbal).
III.
SUMMARY OF PLAINTIFF'S SECOND AMENDED COMPLAINT
Plaintiff
alleges that, on March 30, 2017, he was on the yard
exercising in a secured cage. Plaintiff and other inmates
were debating what candy is the most popular during Easter.
Plaintiff yelled out “Peeps or Pepe's, whatever
they're called!” Defendant Nurse Guzman was walking
by as Plaintiff yelled this out, and yelled “what did
you say?”
Plaintiff
replied, “Peeps or Pepe's.” Defendant Guzman
then angrily yelled “what did you call me? I'm
going to write you up, call me only by my name.”
Plaintiff went back to his cell and thought about why she
would single him out like that. He realized Defendant Guzman
was the nurse who, a week or two before, complained to
another officer about not being able to go home early because
she was attending to Plaintiff during a suicide watch.
Plaintiff had also told her that he would be writing her up
for inappropriate comments.
Defendant
Guzman wrote Plaintiff up on a serious rules violation. This
write-up was dismissed. However, Plaintiff was still
reluctant to go to the exercise yard and to report depression
for fear of Defendant Guzman retaliating further. He alleges
that the write-up was done “in retaliation for either
telling the doctor he's still suicidal; or for telling
Guzman he's going to write her up for her comments of
disapproval to the officer about Plaintiff communications
with the doctor (who still considered Plaintiff to be at risk
of self-injurious and/or suicidal.).”
Plaintiff
claims he now has anxiety attacks when nurses walk by. He
worries that he now has a reputation of being disrespectful
to women. He does not discuss religion because it causes
people to get amped up and loud, which has previously gotten
Plaintiff written up. He also states “Plaintiff started
to feel like he was such an inconvenience in this world you
can barely find someone who's willing to accept payment
to be sure Plaintiff doesn't take his life. After this,
Plaintiff has just started cutting and choking himself out
(unconscious) when he feels suicidal.”
He now
brings a claim against thirteen defendants including Guzman,
the warden of Corcoran State Prison, the Secretary of the
California Department of Corrections and Rehabilitation
(“CDCR”), the CDCR itself, and the Governor.
IV.
EVALUATION OF PLAINTIFF'S AMENDED COMPLAINT
A.
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