(PC) Hendrix v. California Department of Corrections and Rehabilitation

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA MARCELL T. HENDRIX, No. 2:22-cv-1319 TLN CKD P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS CALIFORNIA DEPT. OF CORR. AND REHAB., et al., Defendants.

17 Plaintiff is a state prisoner proceeding pro se with a civil action. On March 7, 2023, plaintiff’s amended complaint was dismissed with leave to file a second amended complaint.

19 Plaintiff has now filed a second amended complaint.

20 The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).

25 As in plaintiff’s original and amended complaints, plaintiff seeks damages for injuries sustained by him on August 1, 2021, when he fell while trying to climb to a top bunk and for injuries to a finger sustained on August 15, 2021, when plaintiff attempted to close the door to his cell. Both incidents occurred at the California Health Care Facility (CHCF) in Stockton.

1 Plaintiff seeks relief under the Americans with Disabilities Act, 42 U.S.C § 12101 et seq, | but he does not allege that he has any qualifying disability. He simply alleges that he was injured || as the result of conditions of confinement.

4 Plaintiff also asserts a claim under the Eighth Amendment. In order to adequately allege a || claim for harmful conditions of confinement under the Eighth Amendment, plaintiff must point to || facts indicating he sustained injury as the result of a prison official’s deliberate indifference to a || substantial risk of serious harm. Farmer v. Brennan, 511 U.S. 825, 834, 837 (1994). As in his | original and amended complaints, plaintiff fails to allege any prison official was at least || deliberately indifferent to a substantial risk of serious harm.

10 For these reasons, the court will recommend that plaintiff's second amended complaint be || dismissed. Since it appears plaintiff cannot, in good faith, state a claim upon which relief can be || granted with respect to injuries sustained on August 1 and 15, 2021, the court will not grant leave || to amend a third time.

14 In accordance with the above, IT IS HEREBY RECOMMENDED that: 15 1. Plaintiff's second amended complaint be dismissed for failure to state a claim upon || which relief can be granted; and 17 2. This case be closed.

18 These findings and recommendations are submitted to the United States District Judge || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days | after being served with these findings and recommendations, plaintiff may file written objections || with the court. The document should be captioned “Objections to Magistrate Judge’s Findings || and Recommendations.” Plaintiff is advised that failure to file objections within the specified || time may waive the right to appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 | (9th Cir. 1991).

25 | Dated: August 28, 2023 □□ I / dle ae 26 CAROLYNK. DELANEY 27 UNITED STATES MAGISTRATE JUDGE 28 1/hend1319.14(3)