United States District Court, E.D. California
DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE.
is a state prisoner proceeding pro se with a civil rights
action under 42 U.S.C. § 1983. Before the court is
plaintiff's first amended complaint for screening. For
the reasons set forth below, this court finds plaintiff has
failed to state any claims cognizable under § 1983.
Plaintiff will be given another opportunity to amend his
filed his original complaint on September 18, 2019. On
screening, this court found plaintiff failed to state any
cognizable claims for relief. (Sept. 27, 2019 Order (ECF No.
5).) Plaintiff was provided instructions for amending his
complaint. On December 23, plaintiff filed a first amended
complaint (“FAC”). (ECF No. 13.)
described in this court's prior screening order, the
court is required to screen complaints brought by prisoners
to determine whether they sufficiently state claims under 42
U.S.C. § 1983. 28 U.S.C. § 1915A(a). The prisoner
must plead an arguable legal and factual basis for each claim
in order to survive dismissal. Franklin v. Murphy,
745 F.2d 1221, 1227-28 (9th Cir. 1984). In addition, the
prisoner must demonstrate a link between the actions of each
defendant and the deprivation of his rights. Monell v.
Dept. of Social Servs., 436 U.S. 658 (1978). “A
person ‘subjects' another to the deprivation of a
constitutional right, within the meaning of § 1983, if
he does an affirmative act, participates in another's
affirmative acts or omits to perform an act which he is
legally required to do that causes the deprivation of which
complaint is made.” Johnson v. Duffy, 588 F.2d
740, 743 (9th Cir. 1978).
Allegations of the First Amended Complaint
is incarcerated at the California Medical Facility
(“CMF”). He identifies eight defendants: (1) Dr.
Eusebio Montejo; (2) Captain Brown; (3) Lopez, CMF
Institutional Security Unit; (4) Warden Jared Lozano; (5)
Correctional Officer (“CO”) Borbe; (6) CO
Lockwood; (7) Marrie, CMF food service; and (8) Associate
his original complaint, plaintiff's FAC is difficult to
decipher. In addition, plaintiff has attached over 700 pages
of exhibits to his FAC. This court will not review those
exhibits to attempt to determine the bases for
plaintiff's claims. It is plaintiff's responsibility
to explain his claims plainly and briefly in the body of his
complaint. Fed.R.Civ.P. 8(a).
this court can tell, plaintiff makes the following
allegations. First, Montejo made sexual advances toward him.
Plaintiff then filed a complaint against Montejo under the
Prison Rape Elimination Act (“PREA”). Montejo
retaliated against plaintiff for filing the complaint by
taking away plaintiff's disability classification,
plaintiff's walker, and plaintiff's pain medications.
Plaintiff also appears to be alleging that Montejo denied him
appropriate medical care, specifically shoulder surgery,
referral to an orthopedic specialist, and appropriate food.
Plaintiff alleges these actions were also retaliatory.
second claim, plaintiff alleges his ingoing and outgoing
legal mail has been stolen. He further alleges: (1)
defendants Brown and Lozano have refused to respond to his 22
forms; (2) defendant Borbe stole plaintiff's priority
envelopes and gave them to “CCPOA gang members;”
(3) CO Lockwood harassed plaintiff; and (4) COs Lockwood and
Borbe took numerous actions against plaintiff, including
having him assaulted by another inmate.
in plaintiff's third claim, he appears to re-state some
of the issues he raised in his first two claims. He adds
allegations that he was denied the right to a hearing on two
rules violation reports - one issued by CO Bird and one
issued by defendant Borbe.
Does Plaintiff State Cognizable Claims?
number of reasons, plaintiff's FAC fails to state any
cognizable claims under § 1983. Below, this court points
out the problems with plaintiff's allegations. In any
second amended complaint, plaintiff must ...