Smith Arizmendez v. McCourt

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ISSAC L. SMITH ARIZMENDEZ, Case No.: 23cv1625-CAB (DDL) CDCR #J-03517, 12 ORDER DISMISSING ACTION Plaintiff, 13 WITHOUT FURTHER LEAVE TO vs. AMEND PURSUANT TO 28 U.S.C. 14 §§ 1915(e)(2) & 1915A(b) DANIEL McCOURT, Plumbing 15 Supervisor, 16 Defendant. 17 18 19 On August 31, 2023, Plaintiff Issac L. Smith Arizmendez, a state inmate proceeding 20 pro se, filed a Complaint pursuant to 42 U.S.C. § 1983. (ECF No. 1.) He alleged that on 21 May 31, 2023, he was transferred to the Richard J. Donovan Detention Facility (“RJD”) in 22 San Diego, California, where he stayed in a cell without operating plumbing for “a few 23 weeks or so,” named as the sole Defendant the RJD plumbing supervisor, and, along with 24 money damages, sought an injunction preventing RJD from operating an unmanageable 25 and inoperable plumbing system. (Id. at 2-7.) On November 6, 2023, the Court dismissed 26 this action without prejudice for failure to pay the filing fee or submit a request to proceed 27 in forma pauperis (“IFP”). (ECF No. 4.) Plaintiff thereafter filed a motion to proceed IFP 28 and notified the Court he was no longer housed at RJD. (ECF No. 5.) 1 On March 1, 2024, the Court granted Plaintiff leave to proceed IFP and screened the 2 Complaint pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b), which require the Court to 3 sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, which is frivolous, 4 malicious, fails to state a claim, or seeks damages from defendants who are immune. (ECF 5 No. 7.) The Court dismissed the Complaint with leave to amend for failure to state a claim 6 and notified Plaintiff of its pleading deficiencies. (Id.) Specifically, Plaintiff failed to state 7 an Eighth Amendment claim for unconstitutional conditions of confinement because he did 8 not allege that the duration and severity of the conditions in his cell were sufficiently grave, 9 and did not name a proper Defendant because he had not alleged personal participation by 10 the only named Defendant, the RJD plumbing supervisor. (See id. at 4-8, citing Farmer v. 11 Brennan, 511 U.S. 825, 832 (1994) (“The Constitution ‘does not mandate comfortable 12 prisons,’ but neither does it permit inhumane ones.”), quoting Rhodes v. Chapman, 452 13 U.S. 337, 347 (1981) (“Conditions must not involve the wanton and unnecessary infliction 14 of pain.”) and Lemire v. Cal. Dept. of Corrections & Rehabilitation, 726 F.3d 1062, 1074- 15 75 (9th Cir. 2013) (holding that supervisors may only be held liable if they were “personally 16 involved in the constitutional violation or a sufficient causal connection exists between the 17 supervisor’s unlawful conduct and the constitutional violation.”).) Plaintiff was instructed 18 that his amended complaint must be complete by itself without reference to his original 19 pleading, and that any Defendant not re-named and any claim not re-alleged in his amended 20 complaint will be considered waived. (Id. at 8, citing S.D. CAL. CIVLR 15.1 and Hal Roach 21 Studios, Inc., 896 F.2d at 1546 (“[A]n amended pleading supersedes the original.”).) 22 On April 5, 2024, Plaintiff filed a First Amended Complaint (“FAC”). (ECF No. 8.) 23 Plaintiff referenced and relied on the allegations in his original Complaint in disregard of 24 the Court’s instructions, indicated he believes the Warden should be held responsible for 25 the poor plumbing at RJD which he might endure again when he travels there for “legal 26 matters such as board hearings,” and stated that he is bringing this action on behalf of 27 himself and all those prisoners at RJD who have refused to speak up for themselves about 28 the poor plumbing. (Id. at 1-5.) 1 On April 19, 2024, the Court dismissed the FAC pursuant to pursuant to 28 U.S.C. 2 §§ 1915(e)(2) & 1915A(b). (ECF No. 9.) The Court found the FAC had not cured the 3 pleading deficiency in the FAC regarding the severity or duration of the conditions in his 4 cell, and that his reliance on the allegations in the original Complaint was a failure to abide 5 by the Court’s prior instruction that his amended complaint be complete in and of itself. 6 (Id. at 4-5.) The Court also found the SAC had once again failed to allege any Defendant 7 deliberately disregarded a need to fix his plumbing, that because he was no longer housed 8 at RJD his claim for injunctive relief is moot because he did not plausibly allege he would 9 be housed at RJD again, that because he is proceeding pro se, he is not permitted to 10 represent a class of prisoners at RJD. (Id. at 5-7.) The Court provided Plaintiff one final 11 opportunity to amend on or before June 4, 2024. (Id. at 7.) Plaintiff was warned that if he 12 failed to take advantage of this final opportunity to amend, the Court will enter a final 13 Order dismissing this civil action based both on Plaintiff’s failure to state a claim upon 14 which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) & 1915A(b)(1), and 15 his failure to prosecute in compliance with a court order requiring amendment. (Id. at 7-8, 16 citing Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take 17 advantage of the opportunity to fix his complaint, a district court may convert the dismissal 18 of the complaint into dismissal of the entire action.”)) 19 On May 7, 2024, Plaintiff filed a “Letter in Response to Court Order” in which he 20 repeats his allegations and requests dismissal of this action, admitting he is unable to cure 21 the pleading defects of his claims as identified by the Court in its prior dismissal orders. 22 (ECF No. 9.) To the extent this document was intended to be a Second Amended 23 Complaint, it, as with the FAC, ignores the Court’s instruction to file an amended pleading 24 that is complete in and of itself. Rather, it does not name any Defendants or identify any 25 claims Plaintiff wishes to pursue in this action. In any case, because it does not cure the 26 pleading defects of Plaintiff’s claims of which he has twice been notified, and it is now 27 clear Plaintiff is unable to do so and wishes the Court to dismiss this action, this action is 28 dismissed pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b) for failure to state a claim 1 || without further leave to amend for the reasons set forth in the Court’s April 19, 2024, Order 2 || of dismissal. 3 Based on the forgoing, the Court DISMISSES this action without further leave to 4 ||amend for failing to state a claim upon which relief can be granted pursuant to 28 U.S.C. 5 11§§ 1915(e)(2)(B)Gi) & 1915A(b)(1). See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 6 2005) (“If a plaintiff does not take advantage of the opportunity to fix his complaint, a 7 || district court may convert the dismissal of the complaint into dismissal of the entire 8 |{action.”) The Clerk of Court will enter final judgment accordingly. 9 IT IS SO ORDERED. 10 ||Dated: June 6, 2024 (fb 11 Hon. Cathy Ann Bencivengo 12 United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4