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Evans v. Fox

United States District Court, E.D. California

December 23, 2019

GENE EVANS, Plaintiff,
v.
ROBERT FOX, et al., Defendants.

          ORDER AND FINDINGS AND RECOMMENDATIONS

          EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE

         Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. He has filed a fourth amended complaint. ECF No. 22.[1] For the reasons that follow, the court must dismiss several claims but should allow some to proceed.

         I. Screening Requirements and Standards

         Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which relief may be granted, ” or “seeks monetary relief from a defendant who is immune from such relief.” Id. § 1915A(b). A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). While the complaint must comply with the “short and plaint statement” requirements of Rule 8, its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

         To avoid dismissal for failure to state a claim a complaint must contain more than “naked assertions, ” “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555-557. In other words, “[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. Furthermore, a claim upon which the court can grant relief must have facial plausibility. Twombly, 550 U.S. at 570. “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. When considering whether a complaint states a claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

         II. Screening Order

         Plaintiff has not stated cognizable claims against defendants Fox, Zometa, Ballenger, Tabbs, and the Doe defendants.

         Plaintiff alleges generally that Fox, the institution's warden, failed to ensure that grievances were properly processed and received meaningful review. These allegations lack sufficient facts to state a claim for relief. Moreover, as the court has informed plaintiff previously, prisoners lack a constitutional entitlement to a specific grievance procedure and thus this claim fails. ECF No. 16 at 3, citing Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003).

         Plaintiff vaguely alleges that Zometa, who had been assigned to review staff complaints filed by plaintiff, “improperly denied Plaintiff procedural due process.” ECF No. 22 at 7. This claim fails for the same reasons as the claim against Fox - plaintiff has not provided sufficient facts for the court to determine how plaintiff's rights were allegedly violated, and, under Ninth Circuit precedent, plaintiff cannot pursue a due process claim based on the processing of his prison grievance.

         Plaintiff alleges that Ballenger told him, “I want your daughter to suck my penis between my legs” and called one of plaintiff's sisters a “bitch.” Id. at 6, 13. Plaintiff claims that these statements were made in retaliation for plaintiff's staff complaints against Ballenger and other staff. The court has informed plaintiff twice that such verbal harassment alone does not violate the Eighth Amendment. ECF No. 10 at 3; ECF No. 16 at 3. The court has also informed plaintiff that such verbal harassment does not give rise to a First Amendment retaliation claim. ECF No. 16 at 3, n.1.

         Plaintiff alleges that a number of Doe defendants made lewd comments to him and/or failed to process his inmate grievances properly. These claims fail because, as previously stated, lewd comments alone do not violate the Constitution and because plaintiff lacks a Constitutional entitlement to a specific grievance procedure.

         Plaintiff lists Tabbs as a defendant but the complaint contains no allegations against him. Thus, Tabbs must be dismissed.

         Because plaintiff has had several opportunities to state viable claims against these defendants and has not done so, the above claims should be dismissed without leave to amend. See ECF No. 16 at 4 (providing plaintiff with “one final opportunity” to state viable claims).

         For the limited purposes of screening under § 1915A, plaintiff has stated potentially cognizable claims against defendants Montemayor, Bjorson, Wong, and Lasseter (alleged to be correctional officers at the California Medical Facility) for violating his Eighth Amendment rights. Plaintiff alleges that each of these defendants made egregious statements to him, either telling plaintiff to kill himself or threatening to kill plaintiff. While verbal harassment is usually not sufficient to state an Eighth Amendment claim, the Ninth Circuit has left open the possibility that comments that are “unusually gross even for a prison setting” and are “calculated to and [do] cause . . . psychological damage” may violate that provision. Keenan ...


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