Opinion
2:21-cv-00398-YY
08-08-2022
DARRIN V. DAILY, Plaintiff, v. L. HALBERT, et al., Defendants.
FINDINGS AND RECOMMENDATIONS
YOULEE YIM YOU UNITED STATES MAGISTRATE JUDGE
FINDINGS
Plaintiff, an adult in custody at the Oregon State Correctional Institution, brings this 42 U.S.C. § 1983 civil rights action pro se. Currently before the court is defendants' Partial Motion to Dismiss Plaintiff's First Amended Complaint (ECF 30). For the reasons that follow, defendants' motion should be GRANTED.
I. Background
Plaintiff's claims arise from his efforts to develop a board game called “Combat Cribbage.” In his original Complaint, plaintiff alleged that he received permission in 2012 to develop the game, but that in July 2019, defendant Correctional Officer Brandon Anglin issued plaintiff a misconduct report for running an unauthorized business. Plaintiff alleged that defendant Anglin, “supported by Defendant L. Halbert,” charged plaintiff with rule violations and ordered plaintiff to cease communications with an attorney and another individual about the game. Plaintiff further alleged that, following a prison disciplinary hearing, he had to re-apply for his business authorization.
In his original Complaint, in addition to defendants Anglin and Halbert, plaintiff named eight other individual defendants based on their responses to his prison grievances and/or due to their perceived supervisory roles. Those defendants moved to dismiss plaintiff's claims for failure to state a claim upon which relief may be granted (ECF 16), and this court granted that motion, but gave plaintiff leave to file an amended complaint.
The court also dismissed with prejudice plaintiff's claims against defendants State of Oregon and Eastern Oregon Correctional Institution.
Plaintiff has since filed an Amended Complaint. ECF 25. The Amended Complaint is not a model of clarity; at the outset, plaintiff lists six of the eight defendants previously dismissed as “certain members on the list of defendants who the Plaintiff wishes to remain on defendants [sic] list,” in what appears to be an effort to preserve his claims. However, under “Claim IX,” plaintiff again lists all eight of the previously-dismissed defendants. Therefore, the court construes plaintiff's Amended Complaint as an attempt to allege claims against all eight of the previously-dismissed individual defendants.
In their partial motion to dismiss, defendants contend that plaintiff's Amended Complaint does not cure the pleading defects with regard to the eight individual defendants who were previously dismissed and argue that they should again be dismissed from this action.
II. Legal Standards
To state a claim upon which relief may be granted, a plaintiff must allege facts that, when accepted as true, give rise to a plausible inference that the defendants violated the plaintiff's constitutional rights. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556-47 (2007). “A claim that 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.” Iqbal, 556 U.S. 678; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). “A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do.” Iqbal, 556 U.S. at 678 (internal quotations omitted).
When a plaintiff is proceeding pro se, the court must construe the pleadings liberally and afford the plaintiff the benefit of any doubt. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Before dismissing a pro se civil rights complaint for failure to state a claim, a court must supply the plaintiff with a statement of the complaint's deficiencies. Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623-24 (9th Cir. 1988); Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir. 1987). A pro se litigant will be given leave to amend the complaint unless it is clear that the deficiencies cannot be cured by amendment. Karim-Panahi, 839 F.2d at 623; Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000).
III. Discussion
To state a § 1983 claim, a plaintiff must allege facts showing a deprivation of a right, privilege, or immunity secured by the Constitution or federal law by a person acting under color of state law. 42 U.S.C. § 1983; L.W. v. Grubbs, 974 F.2d 119, 120 (9th Cir. 1992); Collins v. Womancare, 878 F.2d 1145, 1147 (9th Cir. 1989). As discussed in the prior Findings and Recommendation in this case, liability under § 1983 arises “only upon a showing of personal participation by the defendant” in the alleged constitutional violation. Findings and Recommendation 4, ECF 22 (quoting Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989)). Neither the mere handling of a grievance nor supervisory actions provide a sufficient basis for liability under § 1983. See Fairley v. Shelton, 664 Fed.Appx. 616, 617 (9th Cir. 2016); Monell v. New York City Dep't of Soc. Serv., 436 U.S. 658, 691-94 (1978).
Plaintiff's Amended Complaint does not cure the deficiencies that resulted in the dismissal of his original Complaint. Plaintiff again alleges claims against defendants Sobotta and Miles rooted solely in the handling of plaintiff's grievances, and claims against defendants Brown, Rosenblum, Peters, Lemmens, Rabb, and Neistadt rooted solely in their supervisory roles. Plaintiff again fails to allege facts supporting a claim that any of these defendants were personally involved in the alleged deprivation of his constitutional rights. Accordingly, plaintiff's claims against defendants Brown, Rosenblum, Peters, Lemmens, Sobotta, Rabb, Miles, and Neistadt should be dismissed, and this action should proceed solely on plaintiff's claims against defendants Anglin and Halbert. Because plaintiff was previously advised of the deficiencies of his complaint and granted leave to amend to cure those deficiencies, this dismissal should be with prejudice. See Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 1007 (9th Cir. 2009) (“where the plaintiff has previously been granted leave to amend and has subsequently failed to add the requisite particularity to its claims, [t]he district court's discretion to deny leave to amend is particularly broad”) (internal quotation marks omitted, alteration in original).
RECOMMENDATIONS
Defendants' Partial Motion to Dismiss Plaintiff's First Amended Complaint (ECF 30) should be GRANTED. Plaintiff's claims against defendants Brown, Rosenblum, Peters, Lemmens, Sobotta, Rabb, Miles, and Neistadt should be DISMISSED with prejudice, and this action should be allowed to proceed solely on plaintiff's claims against defendants Anglin and Halbert.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due by August 29, 2022. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.