Opinion
CV 20-7952-DMG (E)
03-19-2021
MICHAEL DEWAYNE ALLEN, Plaintiff, v. WARDEN DOE, et al., Defendants.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable Dolly M. Gee, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
PROCEEDINGS
Plaintiff, a state prisoner, filed this civil rights action on August 18, 2020 in the United States District Court for the Northern District of California. Plaintiff's claims arise out of his previous confinement at the California State Prison, Los Angeles County (“CSP- 1 LAC”). The original Complaint named as Defendants: (1) CSP-LAC “Warden Doe, ” sued as a fictitious Defendant; (2) CSP-LAC correctional officer Moz; and (3) CSP-LAC nurse Muroko, all sued in their individual and official capacities.
On August 26, 2020, the United States District Court for the Northern District of California transferred the action to this Court. On October 19, 2020, this Court issued an “Order Dismissing Complaint With Leave to Amend.” The Court dismissed Plaintiff's official capacity claims for damages without leave to amend, but otherwise dismissed the Complaint with leave to amend.
Plaintiff did not file a First Amended Complaint within the allotted time. Therefore, on November 25, 2020, the Magistrate Judge issued a Report and Recommendation recommending dismissal of the action for failure to prosecute.
However, on November 30, 2020, the Magistrate Judge received in chambers a filed copy of Plaintiff's “First Amended Complaint, ” bearing a filing date of November 23, 2020. Accordingly, on November 30, 2020, the Magistrate Judge issued a Minute Order withdrawing the Report and Recommendation.
On December 15, 2020, the Court issued an “Order Dismissing First Amended Complaint with Leave to Amend.” Plaintiff did not file a Second Amended Complaint within the allotted time. Therefore, on January 28, 2021, the Magistrate Judge issued a Report and Recommendation recommending dismissal of the action for failure to 2 prosecute.
However, on February 22, 2021, Plaintiff filed “Plaintiff's Objection to Magistrate Judge's Ruling, ” claiming that Plaintiff's assignment to a “mental health crisis bed” assertedly had prevented Plaintiff from filing a timely Second Amended Complaint. Accordingly, on February 26, 2021, the Magistrate Judge issued a Minute Order withdrawing the Report and Recommendation. On March 15, 2021, Plaintiff filed a Second Amended Complaint.
PLAINTIFF'S ALLEGATIONS
I. The Original Complaint
In the original Complaint, Plaintiff alleged:
In approximately December of 2011, Plaintiff notified Defendant Moz that Plaintiff was suicidal (Complaint, p. 3). Plaintiff then swallowed a handful of narcotics and medication (id.). Moz did not activate his alarm or call the “T.T.A., ” which is a standard policy of the California Department of Corrections and Rehabilitation (id.).
Defendant Muroko was informed of the incident but did not call poison control or “T.T.A.” (id.). Muroko did nothing, instead merely watching the incident and failing to respond to her co-worker's “blatant disregard of human life” and ill attempt at “playing God” (id.).3
Sergeant Guevara [not named as a Defendant] “was made fully aware of the whole incident, and chose to side with his corrupt co-workers instead of obeying the laws he was sworn in to protect, and uphold” (id.). Defendant Warden failed to address this misconduct (id.).
The original Complaint contained three purported claims for relief. In Claim I, Plaintiff alleged that Defendants subjected Plaintiff to cruel and unusual punishment by assertedly denying Plaintiff medical care. In Claim II, Plaintiff alleged that Defendants violated: “Article 1, Article 2, Article 5[, ] Article 6, Article 7, 8th Amendment, Article 12.” In Claim III, Plaintiff alleged that the District Judge and the Magistrate Judge (not named as Defendants) supposedly denied Plaintiff access to the courts in a prior action by failing to appoint counsel for Plaintiff. Plaintiff sought general damages in the sum of $4.7 million, punitive damages in the sum of $3.7 million, damages for “mental anguish” in the sum of $2.7 million and payment of all taxes on any monetary award.
II. The First Amended Complaint
The First Amended Complaint again named Correctional Officer Moz and Nurse Muroko as Defendants, and added CSP-LAC Sergeant Guevara. Plaintiff sued Defendants in their individual and official capacities, despite the Court's prior order dismissing Plaintiff's official capacity claims without leave to amend. The factual allegations in the First Amended Complaint were very brief: 4
On Easter in 2011, Plaintiff “swallowed a handful of pills in front of C.O. Moz” (First Amended Complaint, p. 5). Moz told Defendant Muroko and Guevara, “[a]nd they all just did nothing and did not give [Plaintiff] medical attention.”(id.). Plaintiff alleged that Defendants failed to protect Plaintiff in violation of the Eighth Amendment (id.). Plaintiff sought compensatory and punitive damages in the sum of $8.8 million plus “taxes paid” (id., p. 6).
III. The Second Amended Complaint
The Second Amended Complaint consists of one handwritten page. Although the caption indicates Defendants are “John Doe et al., ” the body of the pleading alleges wrongdoing by Moz and Muroko only. The pleading alleges, in its entirety:
On or around “Easter 2011” while housed in Ad-Seg I called “C/O Moz” told him I was suicidal and swallowed a handful of pills in front of him and “nurse Muroko.” They did not notify medical. The eighth Amendment prohibits the infliction of cruel and unusual punishment (Geo LJ 2741). Please understand I am currently in the mental hospital under (Acute care) and have no access to legal research so please appoint me assistance of counsel per the Sixth Amendment because I'm illiterate at law.5
DISCUSSION
The Court previously advised Plaintiff that, under Rule 8(a) of the Federal Rules of Civil Procedure, a complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief” (see “Order Dismissing Complaint with Leave to Amend” filed October 19, 2020; “Order Dismissing First Amended Complaint with Leave to Amend” filed December 15, 2020). “Each allegation must be simple, concise, and direct.” Fed. R. Civ. Proc. 8(d)(1). Conclusory allegations are insufficient. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 686 (2009). “Experience teaches that, unless cases are pled clearly and precisely, issues are not joined, discovery is not controlled, the trial court's docket becomes unmanageable, the litigants suffer, and society loses confidence in the court's ability to administer justice.” Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000) (citations and quotations omitted). A complaint must contain “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. at 678 (citation and internal quotations omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
In the Court's “Order Dismissing First Amended Complaint With Leave to Amend, ” filed December 15, 2020, the Court took judicial notice of the dockets in three of Plaintiff's prior, similar actions filed in this Court: (1) Allen v. Moz, et al., CV 11-10657-DMG(E); 6 (2) Allen v. C.O. Giodonez, et al., CV 12-9814-DMG(E); and (3) Allen v. Masameno, CV 12-9981-DMG(E). The Court observed in that Order that, in two of those actions, the Court had advised Plaintiff that a prisoner alleging that prison officials failed to protect him or her from a risk of harm, or failed to provide medical care for a serious medical condition, must show that the prison officials acted with “deliberate indifference” to a substantial risk of harm to the prisoner (see “Order Dismissing Complaint with Leave to Amend, ” filed December 11, 2012 in Allen v. C.O. Giodonez, et al., CV 12-9814-DMG (E), p. 2); “Order Dismissing Complaint with Leave to Amend, ” filed March 27, 2013 in Allen v. Masameno, CV 12-9981-DMG(E), p. 2) (both citing Farmer v. Brennan, 511 U.S. 825, 837 (1994)). As the Court previously has advised Plaintiff, to show deliberate indifference, a plaintiff must show that prison officials knew of and disregarded an excessive risk to inmate health or safety. Farmer v. Brennan, 511 U.S. at 837. The official must have been aware of facts from which the inference could be drawn that a substantial risk of serious harm existed, and must have also drawn the inference. Id. Allegations of negligence do not suffice. Estelle v. Gamble, 429 U.S. 97, 105-06 (1976); Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc).
The Second Amended Complaint again does not plausibly allege any deliberate indifference claim. Like the First Amended Complaint, the Second Amended Complaint wholly fails to plead facts showing that any Defendant knew the nature of the pills Plaintiff allegedly ingested or knew of any serious risk of harm to Plaintiff from ingestion of the pills. Plaintiff again fails to plead facts showing any Defendant deliberately disregarded any serious risk to Plaintiff from ingesting 7 the pills, or that Plaintiff even suffered any harm from ingesting the pills. For the same reasons, any allegations that any Defendant supposedly failed to seek or obtain medical care for Plaintiff after Plaintiff purportedly swallowed the pills again are insufficient. See Farmer v. Brennan, 511 U.S. at 837.
Plaintiff's renewed request for appointment of counsel should be denied. As the Magistrate Judge previously stated (see Minute Order filed October 2, 2020), the action does not appear to be complex and no exceptional circumstances exist. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986); Zamora v. Smith, 2008 WL 467690 (9th Cir. Feb. 20, 2008) (unpublished). Plaintiff again fails to establish a prima facie case of incompetence or inability to articulate Plaintiff's claims pro se as a result of mental illness or medication. Compare Allen v. Calderon, 408 F.3d 1150 (9th Cir. 2005). Indeed, during the period from 2011 through the present, Plaintiff has filed nineteen pro se civil rights cases in various District Courts in this Circuit. In several of those cases, Plaintiff has filed amended 8 pleadings, sought orders vacating judgments, and filed notices of voluntary dismissal. Plaintiff currently has a civil rights case pending in the United States District Court for the Eastern District of California, Allen v. CSP-Sacramento, case number 2:20-cv-00055-TLN-DMC. In that case, Plaintiff has filed numerous documents, including two motions for extensions of time, objections to a report and recommendation, a first amended complaint, a demand for jury trial, a motion for discovery and requests for documents from the court. Plaintiff's litigation history buttresses the Court's previous and continuing conclusion that counsel should not be appointed to represent Plaintiff in this case.
The Court takes judicial notice of the dockets in Plaintiff's other federal civil rights cases referenced herein, available on the PACER database at https://pacer.uscourts.gov. See Porter v. Ollison, 620 F.3d 952, 954-55 n.1 (9th Cir. 2020).
See Allen v. Moz, United States District Court for the Central District of California case number CV 11-10657-DMG(E). Allen v. Roberds, United States District Court for the Eastern District of California case number 2:16-cv-2663-JAM-CKD.
See Allen v. Giodonez, United States District Court for the Central District of California case number CV 12-9814-DMG(E); Allen v. Masameno, United States District Court for the Central District of California case number CV 12-9981-DMG(E); Allen v. Moz, United States District Court for the Central District of California case number CV 11-10657-DMG(E).
See Allen v. Jones, United States District Court for the Eastern District of California case number 2:14-cv-2108-EFB; Allen v. Stinson, United States District Court for the Eastern District of California case number 2:14-cv-2236-CMK.
CONCLUSION
In the “Order Dismissing First Amended Complaint With Leave to Amend, ” the Court cautioned Plaintiff that failure to file a Second Amended Complaint which stated a cognizable claim for relief could result in the dismissal of this action. Despite this caution, the 9 Second Amended Complaint (which is extremely similar to the First Amended Complaint) again fails to state a cognizable claim. Although the Court previously advised Plaintiff of the requirements of Rule 8 of the Federal Rules of Civil Procedure and of the elements of a constitutional claim of deliberate indifference, and although the Court has afforded Plaintiff the opportunity to amend to attempt to state a cognizable claim for relief, Plaintiff has proven unwilling or unable to do so. In these circumstances, another granting of further leave to amend would be an idle act. See Simon v. Value Behavioral Health, Inc., 208 F.3d 1073, 1084 (9th Cir.), amended, 234 F.3d 428 (9th Cir. 2000), cert. denied, 531 U.S. 1104 (2001), overruled on other grounds, Odom v. Microsoft Corp., 486 F.3d 541 (9th Cir.), cert. denied, 552 U.S. 985 (2007) (affirming dismissal without leave to amend where plaintiff failed to correct deficiencies in complaint, where court had afforded plaintiff opportunities to do so, and where court had given plaintiff notice of the substantive problems with his claims); Plumeau v. School District #40, County of Yamhill, 130 F.3d 432, 439 (9th Cir. 1997) (denial of leave to amend appropriate where further amendment would be futile). Accordingly, the Court should dismiss the Second Amended Complaint and the action without leave to amend and with prejudice.
RECOMMENDATION
For the reasons discussed above, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; (2) denying Plaintiff's request for appointment of 10 counsel; and (3) dismissing the Second Amended Complaint and the action without leave to amend and with prejudice. 11
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No. notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court. 12