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Davis v. Sherman

United States District Court, E.D. California

November 18, 2019

MATTHEW ANDREW DAVIS, Plaintiff,
v.
STEWARD SHERMAN, et al., Defendants.

          FINDINGS AND RECOMMENDATION RECOMMENDING DISMISSAL OF THIS ACTION (ECF NO. 15)

          BARBARA A. McAULIFFE, UNITED STATES MAGISTRATE JUDGE

         I. Background

         Plaintiff Matthew Andrew Davis is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.[1]

         On September 25, 2019, the Court found that Plaintiff's first amended complaint failed to comply with Federal Rule of Civil Procedure 8 and failed to state any cognizable claim for relief. (ECF No. 15.) The Court granted Plaintiff thirty days, running from the date of service of the order, to file either a second amended complaint or a notice of voluntary dismissal. (Id. at 16.) Plaintiff was expressly warned that, if he failed to comply with the Court's order, the Court would recommend to the District Judge that this action be dismissed for failure to prosecute and failure to obey a court order. (Id. at 16.) The allotted time period for Plaintiff to file either a second amended complaint or a notice of voluntary dismissal expired on October 28, 2019, and Plaintiff has not complied with the Court's order or otherwise communicated with the Court. Accordingly, the Court recommends dismissal of this action for the reasons discussed below.

         II. Failure to State a Claim

         A. Screening Requirement and Standard

         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 on which relief may be granted, ” or that “seek[] monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); see also 28 U.S.C. § 1915A(b).

         A complaint must 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)). Moreover, Plaintiff must demonstrate that each defendant personally participated in the deprivation of Plaintiff's rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).

         Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). To survive screening, Plaintiff's claims must be facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and “facts that are ‘merely consistent with' a defendant's liability” falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.

         B. Summary of Plaintiff's Allegations

         Plaintiff is currently housed at California Substance Abuse Treatment Facility and State Prison, Corcoran, where he alleges that many of the events at issue in this action took place. Plaintiff names the following defendants: (1) Steward Sherman; (2) CCRA Appeals Coordinator A. Hernandez; (3) SSA C. Ramos; (4) Rhonda Dotta Skipper, an employee of the Board of Prison Hearing; (5) Tara Doetzeh, an employee of the Board of Prison Hearing; (6) CCI Counselor F. Torres; (7) Fisher, who is employed as a Stanislaus County Superior Court District Attorney; (8) Dina Petrushenko, who is employed as a Stanislaus County Superior Court District Attorney; (9) Stanislaus County Superior Court Judge Joseph Richard; (10) Sweena Pune, who is employed as a Stanislaus County Superior Court Public Defender; (11) Molly Petchenik, a litigation assistant with the Prison Legal Office; (12) Carol Foster, an attorney with the Central California Appellate Program; (13) Stanislaus County Superior Court Judge Stacy P. Speiller; (14) Gabby Sergi, a litigation assistant under Sarah Norman at the Prison Law Office; and (15) Rosen Bien Galvan & Grunfeld[2].

         Plaintiff alleges as follows:

My counselor Torres failed to discharge her duty of initiating due process toward entering my eligibility for parole release to a mental health hospital pursuant to § 2960, § 2962(e)(2)(A)-(O), § 2670, or § 2680. The 60 days for this to be done ended - because she stated she did not know how to perform her job. D.W. Fisher added charges. At my next Board review, and Rhonda Dotta Skipper, along with Tara Doetzeh - failed to order my MDO release to a mental health hospital, charging me with the D.A.s allegation that I had a pocket kniffe (sic) when arrested. They violated my 5th Amendment right against double jeopardy. They further violate[d] my right to adequate placement into a mental health hospital - 8th Amendment constitutional right. Therefore F. Torres - the CCI counselor, A. Hernandez - CCRA, C. Ramos SSA, Rhonda Dotta Skipper - Board staff, Tara Doetzeh - Board staff and D.A. Fisher worked in concert denying me acces[s] to the courts with dil[a]tory appeal prevention tactics, which is the proximate cause of me not being placed in a mental health hospital, resulting in a denial of my right to a granted privilege to release from prison - pursuant to California Constitution Article I, (7) (5th and 14th Amendment of U.S. Constitution. The Defendants are thus li[a]ble for my loss of an integral part of my mental health care.

(ECF No. 11, at 2-3.) Additionally, Plaintiff alleges that:

In Exhibit 38, S. Smith assured me that I would have a representative (sic) to speak for me at my Board hearing. Instead the new counselor (sic) called me to the office and told me the hearing was over and I had been denied. Further appeals with staff complaints got ripped up, Exhibit A21. I wrote the Prison Law Office received no help from Gaby or Molly Petchenik, who claim to be my attornys (sic) for Coleman and ADA rights. Exhibits 33 and 34. Entering the Superior Coort (sic) of Stanislaus - Jooge Speiller denied my right to MDO placement as well. As Judge Richard had. Carol Foster was appointed as appellate defender for me, but refused to represent me. Exhibit A-38. I wrote Rusen Bien Galvin & Grunfeld - they refused to represent me. Exhibit A-41, 42, and 43. Since the judges['] authority has been abused, and the defendants have fail[e]d to discharge their duties my civil injury has a second consequential damage within the meaning of false imprisonment. Such a continuance of wrongful reconviction tactics, are actionable civil injurys (sic) - which cause me to bring suit, pursuant to Logan v. Burge U.S.D.C. (N.D. Ill.) No. 1:09-cv-05471.

(ECF No. 11, at 3-4.)

         Plaintiff seeks nominal, compensatory, and punitive damages in the total amount of $6, 600, 000.00. (Id. at 4.)

         C. Discussion

         1. Federal Rule of Civil Procedure 8

         Pursuant to Rule 8(a), a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a). “Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) (citation and internal quotation marks omitted).

         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.” Iqbal, 556 U.S. at 678 (citation omitted). This is because, while factual allegations are accepted as true, legal conclusions are not. Id.; see also Twombly, 550 U.S. at 556-57; Moss, 572 F.3d at 969. Therefore, Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citations and internal quotation marks omitted).

         In this case, while Plaintiff's complaint is short, it is not a plain statement of his claims. Most of Plaintiff's allegations are vague and conclusory statements unsupported by any facts. Instead, Plaintiff has appended 49 pages of exhibits to his 6-page complaint, apparently anticipating that the Court would cull through the exhibits to ferret out the facts in support of his conclusory allegations. However, Plaintiff must state all of his factual allegations in the body of his complaint. As currently pled, Plaintiff's complaint does not contain enough factual ...


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