1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 BRANDON JEREL WILLIAMS, No. 2:21-cv-1559 AC P 11 Plaintiff, 12 v. ORDER AND FINDINGS AND RECOMMENDATIONS 13 CALIFORNIA DEPARTMENT OF CORRECTIONS AND 14 REHABILITATION, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. By 18 order filed November 13, 2023, the court screened the first amended complaint and found it did 19 not state any claims on which relief could be granted. ECF No. 10. Plaintiff was given leave to 20 amend and he has now filed a second amended complaint. ECF No. 11. 21 I. Statutory Screening of Prisoner Complaints 22 The court is required to screen complaints brought by prisoners seeking relief against “a 23 governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). 24 The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 25 “frivolous, malicious, or fail[] to state a claim upon which relief may be granted,” or that “seek[] 26 monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b). 27 A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.” 28 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 1 Cir. 1984). “[A] judge may dismiss . . . claims which are ‘based on indisputably meritless legal 2 theories’ or whose ‘factual contentions are clearly baseless.’” Jackson v. Arizona, 885 F.2d 639, 3 640 (9th Cir. 1989) (quoting Neitzke, 490 U.S. at 327), superseded by statute on other grounds as 4 stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). The critical inquiry is whether a 5 constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. 6 Franklin, 745 F.2d at 1227-28 (citations omitted). 7 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the 8 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of 9 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 10 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 11 “Failure to state a claim under § 1915A incorporates the familiar standard applied in the context 12 of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman, 13 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). In order to survive dismissal for failure 14 to state a claim, a complaint must contain more than “a formulaic recitation of the elements of a 15 cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the 16 speculative level.” Twombly, 550 U.S. at 555 (citations omitted). “[T]he pleading must contain 17 something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally 18 cognizable right of action.” Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur 19 R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)). 20 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 21 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 22 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual 23 content that allows the court to draw the reasonable inference that the defendant is liable for the 24 misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In reviewing a complaint under this 25 standard, the court must accept as true the allegations of the complaint in question, Hosp. Bldg. 26 Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976) (citation omitted), as well as construe the 27 pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, 28 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted). 1 II. Second Amended Complaint 2 The second amended complaint alleges that defendants Lizarraga and Covello violated 3 plaintiff’s rights under the Eighth Amendment. ECF No. 11. Plaintiff alleges that the water 4 provided at Mule Creek State Prison (MCSP) for drinking and bathing is contaminated and that 5 the defendants are the previous and current warden of MCSP, and therefore responsible for the 6 water. Id. at 1-2. Bottled water has been supplied to employees at the prison, who have also been 7 informed that the water is contaminated and polluted, but inmates including plaintiff were not 8 notified and have not received bottled water. Id. at 2. As a result of the contaminated water, 9 plaintiff and other inmates have suffered from illnesses and defendants have “failed in their duty 10 as both custodial guardians and the superintendent of discharge regarding drinkable water 11 source.” Id. at 2. 12 III. Failure to State a Claim 13 As with the first amended complaint, the second amended complaint fails to state a claim 14 against either defendant because plaintiff makes only conclusory allegations that the water at 15 MCSP is contaminated and that, as supervisors, defendants are all liable. “There is no respondeat 16 superior liability under section 1983,” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) 17 (citation omitted), and the complaint provides no specifics regarding the water contamination or 18 any defendants’ involvement in causing or failing to address the contamination, see Cousins v. 19 Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009) (“’[C]onclusory allegations of law and unwarranted 20 inferences are insufficient’ to avoid a Rule 12(b)(6) dismissal”); Barren v. Harrington, 152 F.3d 21 1193, 1194 (9th Cir. 1998) (“Liability under § 1983 must be based on the personal involvement 22 of the defendant.” (citing May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980))). For this reason, 23 the second amended complaint fails to state a claim for relief. 24 IV. No Leave to Amend 25 Leave to amend should be granted if it appears possible that the defects in the complaint 26 could be corrected, especially if a plaintiff is pro se. Lopez v. Smith, 203 F.3d 1122, 1130-31 27 (9th Cir. 2000) (en banc). However, if, after careful consideration, it is clear that a complaint 28 cannot be cured by amendment, the court may dismiss without leave to amend. Cato v.
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 BRANDON JEREL WILLIAMS, No. 2:21-cv-1559 AC P 11 Plaintiff, 12 v. ORDER AND FINDINGS AND RECOMMENDATIONS 13 CALIFORNIA DEPARTMENT OF CORRECTIONS AND 14 REHABILITATION, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. By 18 order filed November 13, 2023, the court screened the first amended complaint and found it did 19 not state any claims on which relief could be granted. ECF No. 10. Plaintiff was given leave to 20 amend and he has now filed a second amended complaint. ECF No. 11. 21 I. Statutory Screening of Prisoner Complaints 22 The court is required to screen complaints brought by prisoners seeking relief against “a 23 governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). 24 The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 25 “frivolous, malicious, or fail[] to state a claim upon which relief may be granted,” or that “seek[] 26 monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b). 27 A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.” 28 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 1 Cir. 1984). “[A] judge may dismiss . . . claims which are ‘based on indisputably meritless legal 2 theories’ or whose ‘factual contentions are clearly baseless.’” Jackson v. Arizona, 885 F.2d 639, 3 640 (9th Cir. 1989) (quoting Neitzke, 490 U.S. at 327), superseded by statute on other grounds as 4 stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). The critical inquiry is whether a 5 constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. 6 Franklin, 745 F.2d at 1227-28 (citations omitted). 7 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the 8 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of 9 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 10 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 11 “Failure to state a claim under § 1915A incorporates the familiar standard applied in the context 12 of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman, 13 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). In order to survive dismissal for failure 14 to state a claim, a complaint must contain more than “a formulaic recitation of the elements of a 15 cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the 16 speculative level.” Twombly, 550 U.S. at 555 (citations omitted). “[T]he pleading must contain 17 something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally 18 cognizable right of action.” Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur 19 R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)). 20 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 21 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 22 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual 23 content that allows the court to draw the reasonable inference that the defendant is liable for the 24 misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In reviewing a complaint under this 25 standard, the court must accept as true the allegations of the complaint in question, Hosp. Bldg. 26 Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976) (citation omitted), as well as construe the 27 pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, 28 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted). 1 II. Second Amended Complaint 2 The second amended complaint alleges that defendants Lizarraga and Covello violated 3 plaintiff’s rights under the Eighth Amendment. ECF No. 11. Plaintiff alleges that the water 4 provided at Mule Creek State Prison (MCSP) for drinking and bathing is contaminated and that 5 the defendants are the previous and current warden of MCSP, and therefore responsible for the 6 water. Id. at 1-2. Bottled water has been supplied to employees at the prison, who have also been 7 informed that the water is contaminated and polluted, but inmates including plaintiff were not 8 notified and have not received bottled water. Id. at 2. As a result of the contaminated water, 9 plaintiff and other inmates have suffered from illnesses and defendants have “failed in their duty 10 as both custodial guardians and the superintendent of discharge regarding drinkable water 11 source.” Id. at 2. 12 III. Failure to State a Claim 13 As with the first amended complaint, the second amended complaint fails to state a claim 14 against either defendant because plaintiff makes only conclusory allegations that the water at 15 MCSP is contaminated and that, as supervisors, defendants are all liable. “There is no respondeat 16 superior liability under section 1983,” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) 17 (citation omitted), and the complaint provides no specifics regarding the water contamination or 18 any defendants’ involvement in causing or failing to address the contamination, see Cousins v. 19 Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009) (“’[C]onclusory allegations of law and unwarranted 20 inferences are insufficient’ to avoid a Rule 12(b)(6) dismissal”); Barren v. Harrington, 152 F.3d 21 1193, 1194 (9th Cir. 1998) (“Liability under § 1983 must be based on the personal involvement 22 of the defendant.” (citing May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980))). For this reason, 23 the second amended complaint fails to state a claim for relief. 24 IV. No Leave to Amend 25 Leave to amend should be granted if it appears possible that the defects in the complaint 26 could be corrected, especially if a plaintiff is pro se. Lopez v. Smith, 203 F.3d 1122, 1130-31 27 (9th Cir. 2000) (en banc). However, if, after careful consideration, it is clear that a complaint 28 cannot be cured by amendment, the court may dismiss without leave to amend. Cato v. United 1 || States, 70 F.3d 1103, 1105-06 (9th Cir. 1995). 2 The undersigned finds that, as set forth above, the complaint fails to state a claim upon 3 || which relief may be granted. Plaintiff has already been given two opportunities to amend the 4 || complaint and advised what kind of information he needed to provide. Rather than providing 5 || additional information, plaintiff has provided progressively less information with each 6 || amendment. It therefore does not appear that further amendment would result in a cognizable 7 || claim. Asa result, leave to amend would be futile and the complaint should be dismissed without 8 | leave to amend. 9 V. Plain Language Summary of this Order for a Pro Se Litigant 10 It is being recommended that the second amended complaint be dismissed without leave 11 || to amend because you have not alleged any facts regarding the defendants’ actions. The fact that 12 || they are supervisors or have a duty to manage the water is not enough to state a claim against 13 || them under § 1983. They must have personally participated in the violation. 14 CONCLUSION 15 In accordance with the above, IT IS HEREBY ORDERED that the Clerk of the Court 16 | shall randomly assign a United States District Judge to this action. 17 IT IS FURTHER RECOMMEDED that the second amended complaint be dismissed 18 || without leave to amend for failure to state a claim. 19 These findings and recommendations are submitted to the United States District Judge 20 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one days 21 || after being served with these findings and recommendations, plaintiff may file written objections 22 || with the court. Such a document should be captioned “Objections to Magistrate Judges Findings 23 || and Recommendations.” Plaintiff is advised that failure to file objections within the specified 24 || time may waive the right to appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 25 | (9th Cir. 1991). 26 || DATED: June 26, 2024 A /
27 ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE