(PC) Pangborn v. Lynch

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA DAVID JAMES PANGBORN, No. 2:23-cv-0825 AC P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS JEFF LYNCH, et al., 15 Defendants.

17 Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983 and state law.

19 I. Removal 20 Plaintiff initiated this action in state court. On May 3, 2023, defendants Lynch and Collinsworth filed a notice of removal under 28 U.S.C. § 1441(a). ECF No. 1. They subsequently requested screening of the instant petition pursuant to the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915A(a). ECF No. 3.

24 In addition to state tort claims, the complaint asserts claims of retaliation, failure to protect, and “civil rights violation[s].” ECF No. 1-2 at 3-5; ECF No. 1-3 at 1. Defendants Lynch and Collinsworth have consented to removal, and the action was removed within thirty days of //// //// service on the last-served defendant,1 as required under 28 U.S.C. § 1446(b). ECF No. 1 at 2-3.

2 It has been more than thirty days since the notice of removal was filed and plaintiff has not sought to remand the case to state court on any grounds. See 28 U.S.C. § 1447(c) (“A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a).”). Thus, plaintiff has waived any defect in removal, and removal appears proper. See Vasquez v. N. Cnty. Transit Dist., 292 F.3d 1049, 1060 n.5 (9th Cir. 2002) (failure to file timely motion to remand waived any defect based on failure to join all defendants in notice of removal). Defendants’ request for screening of the complaint will be granted, and the court will proceed to screen the complaint.

10 II. Complaint 11 A. Statutory Screening of Prisoner Complaints 12 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).

14 The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are “frivolous, malicious, or 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).

17 A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.”

18 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). “[A] judge may dismiss . . . claims which are ‘based on indisputably meritless legal theories’ or whose ‘factual contentions are clearly baseless.’” Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989) (quoting Neitzke, 490 U.S. at 327), superseded by statute on other grounds as stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis.

24 Franklin, 745 F.2d at 1227-28 (citations omitted).

25 //// Defendants maintain that defendant California Department of Corrections and Rehabilitations has not been properly served. ECF No. 1 at 3. The complaint also names as defendants the Office of Correctional Safety and Office of Appeals (ECF No. 1-2 at 2), but there is no indication that either entity has been served.

1 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 4 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

5 “Failure to state a claim under § 1915A incorporates the familiar standard applied in the context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). In order to survive dismissal for failure to state a claim, a complaint must contain more than “a formulaic recitation of the elements of a cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citations omitted). “[T]he pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action.” Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)).

14 “[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. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “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. (citing Twombly, 550 U.S. at 556). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hosp. Bldg. Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976) (citation omitted), as well as construe the pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted).

23 B. Plaintiff’s Allegations 24 The complaint alleges that defendants Lynch, Collinsworth, California Department of Corrections (CDCR), Office of Appeals (OA), and Office of Correctional Safety (OSC) violated plaintiff’s rights under the First, Eighth, and Fourteenth Amendments and state tort law. ECF No. 1-2. Plaintiff contends that defendants Lynch and Collinsworth have refused to address his safety concerns despite specific evidence of enemy threats, including being assaulted on four occasions, leaving plaintiff exposed to his enemies. ECF No. 1-2 at 4-5. He further alleges that Lynch and Collinsworth, along with OCS, have refused to let him take a polygraph because it would substantiate his claims and require them to address his concerns. Id. Lynch and Collinsworth are additionally alleged to have set up and witnessed one of the assaults ,and told plaintiff they would have him transferred to a prison where his known enemies are housed so that he will be killed and not be able to file any more grievances. Id. Defendant OA denied plaintiff’s grievances requesting a polygraph test, thereby assisting Lynch, Collinsworth, and the CDCR in denying plaintiff a way to substantiate his claims. Id. at 4.

9 C. Claims for Which a Response Will Be Required 10 1. Failure to Protect and Negligence 11 Plaintiff’s allegations that defendants Lynch and Collinsworth are aware of and have failed to address serious threats to plaintiff’s safety and coordinated an attack on plaintiff are sufficient to state cognizable claims for failure to protect under the Eighth Amendment and negligence under state tort law. See Farmer v. Brennan, 511 U.S. 825, 833 (1994) (“prison officials have a duty . . . to protect prisoners from violence at the hands of other prisoners” (alteration in original) (citation omitted)); Mendoza v. City of Los Angeles, 66 Cal. App. 4th 17 1333, 1339 (1998) (elements of negligence are duty to use reasonable care, breach of duty, and breach is the proximate cause of plaintiff’s injury); Giraldo v. Cal. Dep’t of Corr. & Rehab., 168 19 Cal. App. 4th 231, 252 (2008) (“jailers owe prisoners a duty of care to protect them from foreseeable harm”). These defendants will therefore be required to respond.

21 2. Retaliation 22 The allegation that defendants Lynch and Collinsworth threatened to transfer plaintiff to a prison where they knew he would be assaulted to stop him from filing grievances is sufficient to support a claim of retaliation and will therefore require a response from defendants Lynch and Collinsworth. See Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (retaliation claim must include allegation that defendant took adverse action against plaintiff because of his protected conduct and that the action chilled plaintiff’s exercise of First Amendment rights and lacked legitimate correctional goal); Brodheim v. Cry, 584 F.3d 1262, 1270 (9th Cir. 2009) (“mere threat of harm can be an adverse action, regardless of whether it is carried out” (emphasis in original)).

3 D. Failure to State a Claim 4 1. Grievances 5 To the extent plaintiff alleges that his due process rights were violated simply by the denial of his appeal, he fails to state a claim both because he fails to identify the individual responsible for denying his appeal and because “inmates lack a separate constitutional entitlement to a specific prison grievance procedure.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). Accordingly, the prison grievance procedure does not confer any substantive constitutional rights upon inmates and actions in reviewing and denying inmate appeals generally do not serve as a basis for liability under section 1983. Id.; George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007) (“Ruling against a prisoner on an administrative complaint does not cause or contribute to the violation.”).

14 2. Public Entity Defendants 15 Plaintiff’s § 1983 claims against the CDCR, OA, and OCS are barred by sovereign immunity because these entities are arms of the state. See Howlett v. Rose, 496 U.S. 356, 365 (1990) (the state and arms of the state “are not subject to suit under § 1983” (citing Will v. Mich. Dep’t of State Police, 491 U.S. 58 (1989))). Furthermore, under California Government Code § 844.6, “a public entity is not liable for . . . [a]n injury to any prisoner” except in a limited number of specifically enumerated circumstances not present here. Cal. Gov’t Code § 844.6(a)(2). The definition of prisoner includes inmates of a prison, Cal. Gov’t Code § 844, and public entities include the state and its agencies, Cal. Gov’t Code § 811.2. These entities are therefore immune to plaintiff’s negligence claims.

24 E. No Leave to Amend 25 Leave to amend should be granted if it appears possible that the defects in the complaint could be corrected, especially if a plaintiff is pro se. Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc). However, if, after careful consideration, it is clear that a complaint //// cannot be cured by amendment, the court may dismiss without leave to amend. Cato v. United States, 70 F.3d 1103, 1105-06 (9th Cir. 1995).

3 The undersigned finds that, as set forth above, the complaint fails to state claims for relief based on the denial of plaintiff’s grievances or against defendants CDCR, OA, and OCS. Given the nature of the claims and the immunity of the defendants, amendment would be futile. These claims and defendants should therefore be dismissed without leave to amend.

7 III. Plain Language Summary of this Order for a Pro Se Litigant 8 Some of the allegations in the complaint state claims against the defendants and some do not. You have stated claims against defendants Lynch and Collinsworth for failure to protect, negligence, and retaliation. You have not stated any claims based on the denial of your grievance or against defendants CDCR, OA, and OSC. Because these defendants are immune and denial of a grievance does not provide a basis for relief, it is being recommended that these defendants and any claim for denial of your grievance be dismissed without leave to amend.

14 CONCLUSION 15 In accordance with the above, IT IS HEREBY ORDERED that: 16 1. Defendants’ request for screening (ECF No. 3) is GRANTED; 17 2. The allegations of the complaint state claims for failure to protect, negligence, and retaliation against defendants Lynch and Collinsworth. By separate order, this case will be referred to Post-Screening Early ADR (Alternative Dispute Resolution).

20 IT IS FURTHER RECOMMENDED that plaintiff’s due process claim and defendants California Department of Corrections and Rehabilitation, Office of Appeals, and Office of Correctional Safety be dismissed without leave to amend.

23 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)(l). Within twenty-one days after being served with these findings and recommendations, plaintiff may file written objections with the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections within the specified //// 1] || time may waive the right to appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 | (9th Cir. 1991).

3 || DATED: April 29, 2024 ~ 4 ttt0n— ALLISON CLAIRE 5 UNITED STATES MAGISTRATE JUDGE 1]