1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 MARK ANTHONY JONES, Case No.: 3:21-cv-1286-BTM-MSB CDCR #P-73659, 11 ORDER: Plaintiff, 12 vs. 1) DISMISSING DEFENDANT 13 PEREZ;
14 EMILLO TORRES, Correctional Officer; 2) DISMISSING FOURTEENTH 15 Defendants. AMENDMENT DUE PROCESS 16 CLAIM FOR FAILING TO STATE A CLAIM; AND 17
18 3) DIRECTING SERVICE OF FIRST AMENDED COMPLAINT ON 19 DEFENDANT TORRES 20
22 I. Procedural History 23 On July 15, 2021, Plaintiff Mark Anthony Jones, an inmate at Salinas Valley State 24 Prison (“SVSP”) located in Soledad, California, and proceeding pro se, filed a new civil 25 rights action pursuant to 42 U.S.C. § 1983. See Compl., ECF No. 1. Plaintiff claimed 26 Correctional Officer Emillo Torres used excessive force against him on May 22, 2020, and 27 Correctional Officer C. Perez failed to protect him from this attack when he was previously 28 1 housed at the Richard J. Donovan Correctional Facility (“RJD”). (See id. at 3.) In addition, 2 Plaintiff filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. 3 § 1915(a) (ECF No. 2). 4 The Court granted Plaintiff’s Motion to Proceed IFP, dismissed his Eighth 5 Amendment failure to protect claim against Defendant Perez, and dismissed his Fourteenth 6 Amendment due process claims. (ECF No. 3 at 5-7.) However, the Court found that the 7 Eighth Amendment claims as to Defendant Torres survived the sua sponte screening 8 required by 28 U.S.C. § 1915(e)(2) and § 1915A(b). (Id. at 5.) 9 The Court gave Plaintiff the option to file an amended pleading in order to cure the 10 problems the Court found in Plaintiff’s Complaint or proceed with his Eighth Amendment 11 claims as to Defendant Torres. (Id. at 7.) Plaintiff was cautioned that if he chose to file an 12 amended pleading “[d]efendants not named and any claims not re-alleged in the Amended 13 Complaint will be considered waived.” (Id. at 8; citing S.D. CAL. CIVLR 15.1; Hal Roach 14 Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n 15 amended pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 16 (9th Cir. 2012) (noting that claims dismissed with leave to amend which are not re-alleged 17 in an amended pleading may be “considered waived if not repled.”).) 18 On September 13, 2021, Plaintiff filed a First Amended Complaint (“FAC”). (ECF 19 No. 4.) In his FAC, Plaintiff no longer names Perez as a Defendant and thus, Perez is 20 dismissed from this action. Lacey, 693 F.3d at 928. 21 II. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) 22 A. Standard of Review 23 As the Court previously informed Plaintiff, because he is a prisoner and is 24 proceeding IFP, his FAC also requires a pre-answer screening pursuant to 28 U.S.C. 25 § 1915(e)(2) and § 1915A(b). Under these statutes, the Court must sua sponte dismiss a 26 prisoner’s IFP complaint, or any portion of it, which is frivolous, malicious, fails to state a 27 claim, or seeks damages from defendants who are immune. See Lopez v. Smith, 203 F.3d 28 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. 1 Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The 2 purpose of [screening] is ‘to ensure that the targets of frivolous or malicious suits need not 3 bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) 4 (citation omitted). 5 “The standard for determining whether a plaintiff has failed to state a claim upon 6 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 7 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 8 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 9 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 10 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 11 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted 12 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 13 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 14 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 15 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 16 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief 17 [is] ... a context-specific task that requires the reviewing court to draw on its judicial 18 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, 19 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 20 standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 21 C. Fourteenth Amendment due process claims 22 Once again, Plaintiff alleges that his due process rights were violated by the alleged 23 failure of prison officials to properly process his grievances. (FAC at 4.) However, as the 24 Court previously informed Plaintiff, a prison official’s allegedly improper processing of an 25 inmate’s grievances or appeals, without more, cannot serve as a basis for Section 1983 26 liability. See generally Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (prisoners 27 do not have a “separate constitutional entitlement to a specific prison grievance procedure.” 28 (citation omitted)); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988) (due process not 1 violated simply because defendant fails properly to process grievances submitted for 2 consideration); see also Todd v. Cal. Dep’t of Corrs. & Rehab., 615 F. App’x 415, 415 (9th 3 Cir. 2015) (district court properly dismissed claim based on improper “processing and 4 handling of [. . .] prison grievances,” since prisoners have no “constitutional entitlement to 5 a specific prison grievance procedure.” (citing Ramirez, 334 F.3d at 860) (quotation marks 6 omitted)) 7 For these reasons, Plaintiff’s Fourteenth Amendment due process claims are 8 dismissed sua sponte for failure to state a plausible claim upon which Section 1983 relief 9 may be granted. See Iqbal, 556 U.S. at 680-84.
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 MARK ANTHONY JONES, Case No.: 3:21-cv-1286-BTM-MSB CDCR #P-73659, 11 ORDER: Plaintiff, 12 vs. 1) DISMISSING DEFENDANT 13 PEREZ;
14 EMILLO TORRES, Correctional Officer; 2) DISMISSING FOURTEENTH 15 Defendants. AMENDMENT DUE PROCESS 16 CLAIM FOR FAILING TO STATE A CLAIM; AND 17
18 3) DIRECTING SERVICE OF FIRST AMENDED COMPLAINT ON 19 DEFENDANT TORRES 20
22 I. Procedural History 23 On July 15, 2021, Plaintiff Mark Anthony Jones, an inmate at Salinas Valley State 24 Prison (“SVSP”) located in Soledad, California, and proceeding pro se, filed a new civil 25 rights action pursuant to 42 U.S.C. § 1983. See Compl., ECF No. 1. Plaintiff claimed 26 Correctional Officer Emillo Torres used excessive force against him on May 22, 2020, and 27 Correctional Officer C. Perez failed to protect him from this attack when he was previously 28 1 housed at the Richard J. Donovan Correctional Facility (“RJD”). (See id. at 3.) In addition, 2 Plaintiff filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. 3 § 1915(a) (ECF No. 2). 4 The Court granted Plaintiff’s Motion to Proceed IFP, dismissed his Eighth 5 Amendment failure to protect claim against Defendant Perez, and dismissed his Fourteenth 6 Amendment due process claims. (ECF No. 3 at 5-7.) However, the Court found that the 7 Eighth Amendment claims as to Defendant Torres survived the sua sponte screening 8 required by 28 U.S.C. § 1915(e)(2) and § 1915A(b). (Id. at 5.) 9 The Court gave Plaintiff the option to file an amended pleading in order to cure the 10 problems the Court found in Plaintiff’s Complaint or proceed with his Eighth Amendment 11 claims as to Defendant Torres. (Id. at 7.) Plaintiff was cautioned that if he chose to file an 12 amended pleading “[d]efendants not named and any claims not re-alleged in the Amended 13 Complaint will be considered waived.” (Id. at 8; citing S.D. CAL. CIVLR 15.1; Hal Roach 14 Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n 15 amended pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 16 (9th Cir. 2012) (noting that claims dismissed with leave to amend which are not re-alleged 17 in an amended pleading may be “considered waived if not repled.”).) 18 On September 13, 2021, Plaintiff filed a First Amended Complaint (“FAC”). (ECF 19 No. 4.) In his FAC, Plaintiff no longer names Perez as a Defendant and thus, Perez is 20 dismissed from this action. Lacey, 693 F.3d at 928. 21 II. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) 22 A. Standard of Review 23 As the Court previously informed Plaintiff, because he is a prisoner and is 24 proceeding IFP, his FAC also requires a pre-answer screening pursuant to 28 U.S.C. 25 § 1915(e)(2) and § 1915A(b). Under these statutes, the Court must sua sponte dismiss a 26 prisoner’s IFP complaint, or any portion of it, which is frivolous, malicious, fails to state a 27 claim, or seeks damages from defendants who are immune. See Lopez v. Smith, 203 F.3d 28 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. 1 Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The 2 purpose of [screening] is ‘to ensure that the targets of frivolous or malicious suits need not 3 bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) 4 (citation omitted). 5 “The standard for determining whether a plaintiff has failed to state a claim upon 6 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 7 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 8 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 9 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 10 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 11 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted 12 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 13 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 14 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 15 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 16 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief 17 [is] ... a context-specific task that requires the reviewing court to draw on its judicial 18 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, 19 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 20 standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 21 C. Fourteenth Amendment due process claims 22 Once again, Plaintiff alleges that his due process rights were violated by the alleged 23 failure of prison officials to properly process his grievances. (FAC at 4.) However, as the 24 Court previously informed Plaintiff, a prison official’s allegedly improper processing of an 25 inmate’s grievances or appeals, without more, cannot serve as a basis for Section 1983 26 liability. See generally Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (prisoners 27 do not have a “separate constitutional entitlement to a specific prison grievance procedure.” 28 (citation omitted)); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988) (due process not 1 violated simply because defendant fails properly to process grievances submitted for 2 consideration); see also Todd v. Cal. Dep’t of Corrs. & Rehab., 615 F. App’x 415, 415 (9th 3 Cir. 2015) (district court properly dismissed claim based on improper “processing and 4 handling of [. . .] prison grievances,” since prisoners have no “constitutional entitlement to 5 a specific prison grievance procedure.” (citing Ramirez, 334 F.3d at 860) (quotation marks 6 omitted)) 7 For these reasons, Plaintiff’s Fourteenth Amendment due process claims are 8 dismissed sua sponte for failure to state a plausible claim upon which Section 1983 relief 9 may be granted. See Iqbal, 556 U.S. at 680-84. Because Plaintiff has already been 10 provided a short and plain statement of his pleading deficiencies with regard to his 11 Fourteenth Amendment claims, as well as an opportunity to amend those claims to no avail, 12 the Court finds that granting further leave to amend would be futile. See Gonzalez v. 13 Planned Parenthood, 759 F.3d 1112, 1116 (9th Cir. 2014) (“‘Futility of amendment can, 14 by itself, justify the denial of . . . leave to amend.’”) (quoting Bonin v. Calderon, 59 F.3d 15 815, 845 (9th Cir. 1995)); Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 1007 16 (9th Cir. 2009) (“[W]here the plaintiff has previously been granted leave to amend and has 17 subsequently failed to add the requisite particularity to its claims, [t]he district court’s 18 discretion to deny leave to amend is particularly broad.” (internal quotation marks omitted) 19 (second alteration in original)). 20 D. Eighth Amendment excessive force claims 21 The allegations in Plaintiff’s Complaint involving Correctional Officer Torres are 22 pleaded with enough factual sufficiency to survive the “low threshold” set for sua sponte 23 screening as required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b). See Wilhelm, 680 F.3d at 24 1123; Iqbal, 556 U.S. at 678; Hudson v. McMillian, 503 U.S. 1, 5, (1992) (unnecessary and 25 wanton infliction of pain violates the Cruel and Unusual Punishments Clause of the Eighth 26 Amendment); Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (per curiam) (for claims arising 27 out of the use of excessive physical force, the issue is “whether force was applied in a good- 28 faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.”) 1 (citing Hudson, 503 U.S. at 7). 2 III. Conclusion and Order 3 For the reasons explained, the Court: 4 1. DISMISSES Plaintiff’s Eighth Amendment claims against Defendant Perez 5 as waived and Fourteenth Amendment due process claims as to all named Defendants for 6 failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). The Clerk of 7 Court is directed to terminate Defendant Perez from the Court’s docket. 8 2. DIRECTS the Clerk to issue a summons as to Plaintiff’s FAC (ECF No. 4) 9 and forward it to Plaintiff along with a blank U.S. Marshal Form 285 for Defendant Torres. 10 In addition, the Clerk will provide Plaintiff with a certified copy of the August 24, 2021 11 Order granting Plaintiff IFP status, a certified copy of his FAC, and the summons so that 12 he may serve Defendant Torres. Upon receipt of this “IFP Package,” Plaintiff must 13 complete the Form 285s as completely and accurately as possible, include an address 14 where each named Defendant may be served, see S.D. CAL. CIVLR 4.1.c, and return them 15 to the USMS according to the instructions the Clerk provides in the letter accompanying 16 his IFP package; 17 3. ORDERS the USMS to serve a copy of the FAC and summons upon 18 Defendant Torres as directed by Plaintiff on the USM Form 285 provided to him. All costs 19 of that service will be advanced by the United States. See 28 U.S.C. § 1915(d); FED. R. 20 CIV. P. 4(c)(3); and 21 4. ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to 22 serve upon Defendant or, if appearance has been entered by counsel, upon Defendant’s 23 counsel, a copy of every further pleading, motion, or other document submitted for the 24 Court’s consideration pursuant to FED. R. CIV. P. 5(b). Plaintiff must include with every 25 original document he seeks to file with the Clerk of the Court, a certificate stating the 26 manner in which a true and correct copy of that document has been served on Defendant 27 or Defendant’s counsel, and the date of that service. See S.D. CAL. CIVLR 5.2. 28 Any document received by the Court which has not been properly filed with the 1 ||Clerk, or which fails to include a Certificate of Service upon the Defendant, may be 2 || disregarded. 3 IT IS SO ORDERED. 4 ||Dated: October 4, 2021 5 □□ Honor Barry Ted Moskow 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 oe