Lipsey v. Guzman

          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. ...