1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JHONATHAN FRYE, Case No.: 1:21-cv-01525-KES-SKO (PC) 12 Plaintiff,

FINDINGS AND RECOMMENDATIONS TO

13 v. DISMISS SECOND AMENDED

COMPLAINT FOR FAILURE TO STATE A

14 PFIEFER, Warden, et al., CLAIM UPON WHICH RELIEF CAN BE

GRANTED

15 Defendants. (Doc. 15) 16 14-DAY OBJECTION PERIOD 17 Plaintiff Jhonathan Frye is proceeding pro se and in forma pauperis in this civil rights 18 action brought pursuant to 42 U.S.C. § 1983. 19 20 I. INTRODUCTION 21 This Court issued its First Screening Order on January 26, 2023, finding Plaintiff stated 22 cognizable claims of threat to safety in violation of the Eighth Amendment against Defendants 23 Vasquez and Rodriguez, but failed to state any other cognizable claim against any named 24 defendant. (Doc. 9.) On February 9, 2023, Plaintiff filed a first amended complaint. (Doc. 10.) 25 The Court issued its Second Screening Order on October 27, 2023. (Doc. 11.) The Court 26 determined Plaintiff’s first amended complaint stated a cognizable Eighth Amendment threat to 27 safety claim against Defendant Rodriguez only, and cognizable First Amendment retaliation claims against Defendants Vasquez and Rodriguez. (Id. at 5-7.) The Court further found that 1 Plaintiff’s first amended complaint failed to state any other cognizable claim against any other 2 named defendant. (Id. at 8.) Plaintiff was directed to do one of the following: (1) notify the Court 3 in writing that he did not wish to file a second amended complaint and was willing to proceed 4 only on the claims found cognizable by the Court; (2) file a second amended complaint; or (3) file 5 a notice of voluntary dismissal. (Id. at 8-9.) 6 On December 21, 2023, Plaintiff filed his second amended complaint. (Doc. 15.) 7 II. SCREENING REQUIREMENT 8 The Court is required to screen complaints brought by prisoners seeking relief against a 9 governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 10 The Court must dismiss a complaint or portion thereof if the complaint is frivolous or malicious, 11 fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant 12 who is immune from such relief. 28 U.S.C. § 1915A(b). The Court should dismiss a complaint if 13 it lacks a cognizable legal theory or fails to allege sufficient facts to support a cognizable legal 14 theory. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 15 III. PLEADING REQUIREMENTS 16 A. Federal Rule of Civil Procedure 8(a) 17 “Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited 18 exceptions.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513 (2002). A complaint must contain 19 “a short and plain statement of the claims showing that the pleader is entitled to relief.” Fed. R. 20 Civ. P. 8(a)(2). “Such a statement must simply give the defendant fair notice of what the 21 plaintiff’s claim is and the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512 (internal 22 quotation marks & citation omitted). 23 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a 24 cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 25 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must 26 set forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’” 27 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Factual allegations are accepted as 1 The Court construes pleadings of pro se prisoners liberally and affords them the benefit of 2 any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citation omitted). However, “the 3 liberal pleading standard . . . applies only to a plaintiff’s factual allegations,” not his legal 4 theories. Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). Furthermore, “a liberal interpretation 5 of a civil rights complaint may not supply essential elements of the claim that were not initially 6 pled,” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (internal 7 quotation marks & citation omitted), and courts “are not required to indulge unwarranted 8 inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation 9 marks & citation omitted). The “sheer possibility that a defendant has acted unlawfully” is not 10 sufficient to state a cognizable claim, and “facts that are merely consistent with a defendant’s 11 liability” fall short. Iqbal, 556 U.S. at 678 (internal quotation marks & citation omitted). 12 B. Linkage and Causation 13 Section 1983 provides a cause of action for the violation of constitutional or other federal 14 rights by persons acting under color of state law. See 42 U.S.C. § 1983. To state a claim under 15 section 1983, a plaintiff must show a causal connection or link between the actions of the 16 defendants and the deprivation alleged to have been suffered by the plaintiff. See Rizzo v. Goode, 17 423 U.S. 362, 373-75 (1976). The Ninth Circuit has held that “[a] person ‘subjects’ another to the 18 deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative 19 act, participates in another’s affirmative acts, or omits to perform an act which he is legal required 20 to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 21 743 (9th Cir. 1978) (citation omitted). 22 IV. DISCUSSION 23 A. Plaintiff’s Second Amended Complaint 24 Plaintiff names Kern Valley State Prison Correctional Officers D. Vasquez and C. 25 Rodriguez and Warden Pfeiffer as defendants in the action. (Doc. 15 at 1-3.) Plaintiff seeks “7 26 million dollars in damages for physical, mental & emotional distress.” (Id. at 5.) 27 B. Plaintiff’s Factual Allegations & Claim 1 The Supporting Facts are quoted below in their entirety: 2 D. Vasquez fraudulently produced paperwork taking my yard dayroom canteen packages & phone calls when thats cruel & unusual 3 punishment. Also it was retaliation to a appeal filed against Vasquez for sexual harassment. D. Vasquez also wrote a fraudulent violation 4 to get me placed on further restriction. C. Rodriguez wrote a false violation report to get me placed on c-status and restricted further in 5 retaliation for previous appeals. 6 (Doc. 15 at 3.) 7 C. The Second Amended Complaint Violates Rule 8 8 Plaintiff’s second amended complaint violates Rule 8 of the Federal Rules of Civil 9 Procedure. The factual allegations are conclusory and fail to provide any defendant with fair 10 notice of Plaintiff’s claim. Swierkiewicz, 534 U.S. at 512; Iqbal, 556 U.S. at 678. Plaintiff 11 provides no dates for the actions he vaguely alleges against Defendants Vasquez and Rodriguez. 12 While Warden Pfeiffer is identified as a defendant in the second amended complaint, no facts are 13 asserted concerning any action or inaction by Pfeiffer. Rizzo, 423 U.S. at 373-75. 14 Plaintiff’s original and first amended complaint provided sufficient facts to state certain 15 cognizable claims. (See Docs. 9 & 11.) Plaintiff was given two opportunities to proceed on the 16 claims found cognizable by the Court. (See Doc. 9 at 10 & Doc. 11 at 8-9.) In each instance, 17 Plaintiff elected to file an amended complaint to cure the deficiencies identified by the Court, as 18 is his right. However, on this occasion, Plaintiff has failed to assert any plausible or cognizable 19 claim against any named defendant. The Court has now screened three complaints: the original 20 complaint filed October 15, 2021, the first amended complaint filed February 9, 2023, and the 21 instant second amended complaint filed December 21, 2023. 22 Plaintiff was warned in the Second Screening Order issued October 27, 2023, that he 23 would be given “one final opportunity” to amend his claims to cure the deficiencies identified by 24 the Court. (See, e.g., Doc. 11 at 6, 8.) Plaintiff was also reminded that any amended complaint 25 supersedes the prior complaint, and that any second amended complaint must be “complete in 26 itself.” (Id. at 8.) Therefore, the second amended complaint superseded the first amended 27 complaint. The Court does not consider either the original or first amended complaint in making 1 deficiencies identified in the Second Screening Order, Plaintiff has submitted a second amended 2 complaint that violates Rule 8 of the Federal Rules of Civil Procedure and fails to state any claim. 3 Because it appears Plaintiff is unable to cure the deficiencies previously identified by this 4 Court, and because his second amended complaint fails to state any claim upon which relief can 5 be granted, amendment is futile. See Hartman v. CDCR, 707 F.3d 1114, 1129-30 (9th Cir. 2013) 6 (affirming dismissal of first amended complaint and finding leave to amend futile where 7 complaint’s allegations belied plaintiff’s entitlement to relief). Therefore, this Court will 8 recommend the second amended complaint be dismissed without leave to amend for a failure to 9 state a claim. 10 V. CONCLUSION AND RECOMMENDATION 11 For the foregoing reasons, IT IS HEREBY RECOMMENDED that Plaintiff’s second 12 amended complaint be dismissed without leave to amend for failure to state a claim. 13 These Findings and Recommendations will be submitted to the district judge assigned to 14 this case, pursuant to 28 U.S.C. § 636(b)(l). Within 14 days of the date of service of these 15 Findings and Recommendations, a party may file written objections with the Court. The 16 document should be captioned, “Objections to Magistrate Judge’s Findings and 17 Recommendations.” Failure to file objections within the specified time may result in waiver of 18 rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 19 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 20

IT IS SO ORDERED.

21

22 Dated: October 7, 2024 /s/ Sheila K. Oberto .

UNITED STATES MAGISTRATE JUDGE

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