Grigsby v. Asuncion

          ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND

          PAUL L. ABRAMS UNITED STATES MAGISTRATE JUDGE

         Plaintiff, a state prisoner who was incarcerated at the California State Prison, Lancaster, California (“CSP-LAC”) at the time that he initiated this action, filed a pro se civil rights action pursuant to 42 U.S.C. § 1983 on November 21, 2018. (ECF No. 1). Plaintiff also filed a request to proceed without prepayment of the filing fee, which was denied by the District Court on the grounds that plaintiff had previously had three or more cases dismissed that constitute strikes in accordance with 28 U.S.C. § 1915(g). (ECF Nos. 2, 8). Plaintiff subsequently paid the full filing fee. (ECF No. 25).

         Plaintiff's Complaint named numerous employees of the California Department of Corrections and Rehabilitation (“CDCR”) as defendants. (ECF No. 1 at 3-13). Plaintiff, however, was able to successfully serve the summons and Complaint on only two defendants, Correctional Officer Escajeda and Supervisor of Health Appeals Mason. (ECF Nos. 98-99). On October 1, 2019, after considering plaintiff's Objections (ECF No. 106), the District Court accepted this Court's Initial Report and Recommendation (ECF No. 103) and dismissed all unserved named defendants from this action for failure to prosecute. (ECF No. 107). Subsequently, the Court granted the Motion to Stay the Case filed by the two remaining defendants while the Court conducted additional screening. (ECF Nos. 109-112).

         Plaintiff's claims in this action arise from an incident on July 16 to 17, 2018, when plaintiff was not taken from his cell for medical attention for several hours while he was in severe pain and calling for help. (ECF No. 1 at 11-16). Plaintiff sought to have criminal charges filed against unnamed prison employees who allegedly falsified documents and failed to investigate plaintiff's claims. Plaintiff also sought compensatory damages. (Id. at 20).

         In accordance with the mandate of the Prison Litigation Reform Act of 1995 (“PLRA”), the Court screened the Complaint for the purpose of determining whether the action is frivolous or malicious; or fails to state a claim upon which relief may be granted; or seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915A; 42 U.S.C. § 1997e(c)(1). Plaintiff's status as a prisoner is determined at the time when he filed the action. See Olivas v. Nevada ex rel. Dep't of Corr., 856 F.3d 1281, 1284 (9th Cir. 2017) (citing Page v. Torrey, 201 F.3d 1136, 1139-40 (9th Cir. 2000), and holding that the status of “prisoner” for purposes of 28 U.S.C. § 1915A is determined “at the time that the plaintiff files the complaint”).

         After careful review of the Complaint, the Court found that plaintiff's allegations failed to state a short and plain statement of any claim and appeared insufficient to state a claim against the two remaining defendants. Accordingly, the Complaint was dismissed with leave to amend. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987). Plaintiff was ordered, if he desired to pursue this action, to file a First Amended Complaint no later than November 8, 2019, remedying the deficiencies discussed in the Court's Order of October 10, 2019. Further, plaintiff was admonished that, if he failed to timely file a First Amended Complaint or failed to remedy the deficiencies of his pleading, the Court would recommend that the action be dismissed without further leave to amend and with prejudice. (See ECF No. 113).

         On November 4, 2019, plaintiff filed a First Amended Complaint (“FAC”) that names as defendants Warden Asuncion, Correctional Officers Dunn and Escajeda, and Health Appeals Supervisor Mason. Plaintiff names Correctional Officer Escajeda, Supervisor Mason, and Warden Asuncion in both their individual and official capacities. (ECF No. 114 at 3-4). The District Court's Order of October 1, 2019, dismissed without prejudice for failure to prosecute defendants Warden Asuncion and Correctional Officer Dunn. (ECF No. 107). To date, plaintiff has failed to file a proof of service of process on either of these two defendants. In the FAC plaintiff once again seeks to have unspecified CDCR employees fired and have “criminal charges filed.” Plaintiff also seeks monetary damages. (ECF No. 114 at 9).

         The Court once again has screened the FAC for the purpose of determining whether the action is frivolous or malicious; or fails to state a claim upon which relief may be granted; or seeks monetary relief against a defendant who is immune from such relief. The Court's screening of the pleading under the foregoing statutes is governed by the following standards. A complaint may be dismissed as a matter of law for failure to state a claim for two reasons: (1) lack of a cognizable legal theory; or (2) insufficient facts alleged under a cognizable legal theory. See, e.g., Kwan v. SanMedica Int'l, 854 F.3d 1088, 1093 (9th Cir. 2017); see also Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“In determining whether a complaint should be dismissed for failure to state a claim under the [PLRA], we apply the familiar standard of Fed.R.Civ.P. 12(b)(6).”). Further, with respect to a plaintiff's pleading burden, the Supreme Court has held that: “a plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. … Factual allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal citations omitted, alteration in original); see also Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (To avoid dismissal for failure to state a claim, “a complaint must contain 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.” (internal citation omitted)).

         Since plaintiff is appearing pro se, the Court must construe the allegations of the pleading liberally and must afford plaintiff the benefit of any doubt. See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). Further, it is particularly important in a civil rights case filed by a pro se litigant to attempt to ascertain plaintiff's claims to protect his or her access to the courts. See Blaisdell v. Frappiea, 729 F.3d 1237, 1241 (9th Cir. 2013) (the rule of liberal construction “relieves pro se litigants from the strict application of procedural rules”); Pouncil v. Tilton, 704 F.3d 568, 574-75 (9th Cir. 2012) (the rule of liberal construction “protects the rights of pro se litigants to self-representation and meaningful access to the courts”). In addition, the Court may not dismiss a claim because a pro se litigant has set forth an incomplete “legal theory supporting the claim” alleged. See Johnson v. City of Shelby, 574 U.S. 10, 135 S.Ct. 346, 346, 190 L.Ed.2d 309 (2014). Finally, in determining whether a complaint states a claim to relief that is plausible on its face, factual allegations are accepted as true and construed in the light most favorable to plaintiff. See, e.g., Soltysik v. Padilla, 910 F.3d 438, 444 (9th Cir. 2018). However, the “tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678; see also Chavez v. United States, 683 F.3d 1102, 1108 (9th Cir. 2012) (“a court discounts conclusory statements, which are not entitled to the presumption of truth, before determining whether a claim is plausible”). Nor is the Court “bound to accept as true a legal conclusion couched as a factual allegation or an unadorned, the-defendant-unlawfully-harmed-me accusation.” Keates v. Koile, 883 F.3d 1228, 1243 (9th Cir. 2018) (internal quotation marks and citations omitted).

         After careful review of the FAC under the foregoing standards, the Court finds that plaintiff's allegations once again appear insufficient to state a claim against any defendant. Because plaintiff is an inmate proceeding pro se in a civil rights action, the Court, although doubtful that plaintiff will be able to correct the deficiencies in his pleading, will give plaintiff one additional opportunity to amend his FAC to correct the deficiencies in his claims. Accordingly, the FAC is dismissed with leave to amend. See Noll, 809 F.2d at 1448 (a “pro se litigant must be given leave to amend his or her complaint unless it is absolutely clear that the deficiencies of the complaint cannot be cured by amendment” (internal quotation marks omitted)).

         Plaintiff is admonished that, if plaintiff desires to pursue this action, he must file a Second Amended Complaint no later than January 17, 2020, remedying the deficiencies discussed below. Further, plaintiff is admonished that, if he fails to timely file a Second Amended Complaint or fails to remedy the deficiencies of this pleading as discussed herein, the Court will recommend that the action be dismissed without further leave to amend and with prejudice.^[1]

         A. ELEVENTH AMENDMENT IMMUNITY

         Plaintiff's FAC once again names three defendants in their official capacities, and he appears to seek only monetary damages against these defendants.

         As the Court has previously admonished plaintiff, the Supreme Court has held that an “official-capacity suit is, in all respects other than name, to be treated as a suit against the entity.” Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). Such a suit “is not a suit against the official personally, for the real party in interest is the entity.” Id. at 166 (emphasis in original). Further, in Will v. Mich. Dep't. of State Police, 491 U.S. 58, 64-66, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989), the Supreme Court held that states and state agencies are not persons subject to civil rights ...