United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE.
is a state prisoner at the California Health Care Facility
(CHCF), under the authority of the California Department of
Corrections and Rehabilitation (CDCR). Plaintiff proceeds pro
se and in forma pauperis with this civil rights action filed
pursuant to 42 U.S.C. Â§ 1983.
September 13, 2019, the undersigned screened plaintiff's
Fourth Amended Complaint pursuant to 28 U.S.C. § 1915A,
and found that service was not appropriate. ECF No. 37.
Plaintiff was granted leave to file a Fifth Amended
Complaint, and provided with information about the applicable
legal standards and pleading requirements. Id. By
order filed October 2, 2019, the district judge adopted the
undersigned's findings and recommendations that
defendants State of California and the California Governor be
dismissed from this action, and that plaintiff's numerous
requests for preliminary injunctive relief be denied without
prejudice. ECF No. 45.
undersigned now screens plaintiff's Fifth Amended
Complaint pursuant to 28 U.S.C. § 1915A. See ECF
No. 44. For the reasons set forth below, the undersigned
recommends that this action be dismissed without prejudice.
Fifth Amended Complaint identifies three proposed claims, for
which he seeks 98 million dollars in damages and an order
requiring CDCR to provide plaintiff with outside medical
care. In his first claim, plaintiff alleges a putative Fourth
Amendment violation described in full as follows, ECF No. 44
at 3 (with minor edits):
I have court tell me out February 29, 2020 but 1-23-2021 I
had February 29, 2020 now have January 23, 2021. The DA from
this county filed nothing but CDCR filed this.
allegations do not state a cognizable civil rights claim and
indicate that amendment would be futile.
prior complaints suggest that plaintiff is attempting to
challenge a disciplinary sentence that lengthened his term of
incarceration. As the court previously explained to
plaintiff, a challenge to the validity of a disciplinary
conviction lies in habeas corpus, not civil rights. See
Nettles v. Grounds, 830 F.3d 922, 935 (9th Cir. 2016)
(en banc), cert. denied, 137 S.Ct. 645 (2017)
(claims falling within the “core” of habeas are
those that would “necessarily lead to [the
petitioner's] immediate or earlier release from
confinement”). All other claims must be brought in a
civil rights action under 42 U.S.C. § 1983. Id.
at 929. However, civil rights claims premised on an intact
disciplinary conviction may only be challenged on due process
grounds, Wolff v. McDonnell, 418 U.S. 539 (1974),
which plaintiff does not allege.
plaintiff alleges a denial of adequate medical care
(incorrectly identified as a Fifth Amendment claim). While
this claim is difficult to decipher, plaintiff appears to
allege that his medical care was better at the Veterans
Administration than it is in prison; that plaintiff has only
one lung; and that CDCR “is going to kill”
plaintiff through “gross negligence” and
“malpractice.” ECF No. 44 at 4. The court has
previously informed plaintiff of the substantive standards
for stating a cognizable medical deliberate indifference
claim under the Eighth Amendment, as well as the requirements
that he identify specific defendants and their specifically
challenged conduct. See ECF No. 37. Plaintiff's
current allegations fail to meet these standards. Due to the
vagueness of the allegations and plaintiff's failure to
cure the vagueness on amendment, it appears that further
amendment would be futile.
plaintiff alleges excessive force and/or “abuse”
by Officers Gonzales and Tovar (incorrectly identified as a
Fifth Amendment claim), and that these officers are
“going behind C/O Traing.” ECF No. 44 at 5. This
claim, which is also difficult to decipher, appears to allege
that Gonzales threatened to “bitch slap”
plaintiff, while Tovar “pull[ed] [plaintiff's]
room” and “told [plaintiff] about HIP[P]A.”
Id. In his original complaint, plaintiff alleged
that C/O Jaspar threatened to “bitch slap”
plaintiff outside view of prison cameras. See ECF
No. 37 at 5, 8. As the court then informed plaintiff,
“to state an Eighth Amendment claim premised on a
correctional officer's statements or threats, plaintiff
must plausibly allege that the officer ‘acted with a
sufficiently culpable state of mind' and ‘the
alleged wrongdoing was objectively harmful enough to
establish a constitutional violation.'”
Id. at 9 (quoting Somers v. Thurman, 109
F.3d 614, 622 (9th Cir. 1997). Neither plaintiff's
original nor current allegations meet these legal standards
and it again appears that further amendment would be futile.
court is persuaded that plaintiff is unable to allege any
additional facts in a Sixth Amended Complaint that may state
a cognizable civil rights claim. Therefore, the undersigned
will recommend that this action be dismissed without
prejudice. “A district court may deny leave to amend
when amendment would be futile.” Hartmann v.
CDCR, 707 F.3d 1114, 1130 (9th Cir. 2013).
IT IS HEREBY RECOMMENDED that this action be dismissed
findings and recommendations are submitted to the United
States District Judge assigned to this case, pursuant to the
provisions of 28 U.S.C. § 636(b)(1). Within fourteen
(14) days after being served with these findings and
recommendations, plaintiff may file written objections with
the court. Such document should be captioned
“Objections to Magistrate Judge's Findings and
Recommendations.” Plaintiff is advised that failure to
file objections ...