(PC) Mitchell v. CDCR

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RONALD MITCHELL, No. 2:24-cv-0713 CKD P 12 Plaintiff, 13 v. ORDER AND 14 CALIFORNIA DEPARTMENT OF FINDINGS AND RECOMMENDATIONS CORRECTIONS AND 15 REHABILITATION, et al., 16 Defendants. 17 18 Plaintiff is a state prisoner proceeding pro se and seeking relief pursuant to 42 U.S.C. § 19 1983. On October 2, 2024, the court dismissed plaintiff’s amended complaint with leave to 20 amend. Plaintiff has filed a second amended complaint. 21 The court is required to screen complaints brought by prisoners seeking relief against a 22 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 23 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 24 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 25 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 26 While not entirely clear, it appears plaintiff suffered second-hand exposure to a chemical 27 agent like pepper spray which caused him difficulty breathing. Plaintiff sought assistance and 28 complains about a delayed response and the exposure itself. For the most part, plaintiff fails to 1 | identify anyone in particular who caused plaintiff injury. Plaintiff does point to one officer and 2 || blames that officer for the exposure. But plaintiff fails to point to facts suggesting the exposure 3 || was the result of that officer being at least deliberately indifferent to a serious risk of harm. See 4 | Farmer v. Brennan, 511 U.S. 825, 834-837 (1994). 5 Plaintiff asserts claims arising under California law, but fails to plead compliance with the 6 || California Tort Claims Act. See Cal. Gov’t Code § 910 et seq.; Mangold v. Cal. Pub. Utils. 7 || Comm’n, 67 F.3d. 1470, 1477 (9th Cir. 1995). Complaints must present facts demonstrating 8 || compliance, rather than simply conclusions suggesting as much. Shirk v. Vista Unified School 9 || Dist., 42 Cal.4th 201, 209 (2007). 10 For these reasons, plaintiff's second amended complaint fails to state a claim upon which 11 | plaintiff can proceed. The court has already given plaintiff two attempts to cure the defects in his 12 || pleadings and plaintiff has not been able to do so. Granting a third attempt appears futile. 13 In accordance with the above, IT IS HEREBY ORDERED that the Clerk of the Court 14 | assign a district court judge to this case. 15 IT IS HEREBY RECOMMENDED that: 16 1. Plaintiff's second amended complaint be dismissed; and 17 2. This case be closed. 18 These findings and recommendations are submitted to the United States District Judge 19 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 20 | after being served with these findings and recommendations, plaintiff may file written objections 21 || with the court. The document should be captioned “Objections to Magistrate Judge’s Findings 22 || and Recommendations.” Plaintiff is advised that failure to file objections within the specified 23 || time waives the right to appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th 24 | Cir. 1991). 25 | Dated: February 24, 2025 / ae / a ly. ae 26 CAROLYNK. DELANEY 27 || inmitco713.fis UNITED STATES MAGISTRATE JUDGE 28