1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DANIEL LOPEZ, No. 2:21-cv-2094 DAD AC P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 CDC DIRECTOR, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding without counsel, seeks relief pursuant to 42 U.S.C. 18 § 1983. Upon screening the first amended complaint (“FAC”), the court gave plaintiff the choice 19 between proceeding on the complaint as screened or filing an amended complaint. ECF No. 29. 20 Plaintiff chose to amend the complaint (ECF No. 30) and has now filed a second amended 21 complaint (“SAC”) (ECF No. 32). 22 I. Statutory Screening of Prisoner Complaints 23 The court is required to screen complaints brought by prisoners seeking relief against “a 24 governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). A 25 claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.” Neitzke v.

U.S. 319, 325 (1989). The court may dismiss a claim as frivolous if it is based on 27 an indisputably meritless legal theory or factual contentions that are baseless.

490 U.S. at 28 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an 1 arguable legal and factual basis. Jackson v. Arizona,

(9th Cir. 1989), 2 superseded by statute on other grounds as stated in Lopez v. Smith,

(9th Cir. 3 2000). 4 In order to avoid dismissal for failure to state a claim a complaint must contain more than 5 “naked assertion[s],” “labels and conclusions,” or “a formulaic recitation of the elements of a 6 cause of action.” Bell Atl. Corp. v. Twombly,

(2007). In other words, 7 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 8 statements, do not suffice.” Ashcroft v. Iqbal,

(2009). A claim upon which the 9 court can grant relief has facial plausibility. Twombly,

. “A claim has facial 10 plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable 11 inference that the defendant is liable for the misconduct alleged.” Iqbal,

(citation 12 omitted). When considering whether a complaint states a claim, the court must accept the 13 allegations as true, Erickson v. Pardus,

(2007) (per curiam), and construe the 14 complaint in the light most favorable to the plaintiff, Jenkins v. McKeithen,

, 421 15 (1969) (citations omitted). 16 II. Factual Allegations of the Second Amended Complaint 17 The SAC alleges that defendants Barrier and Crother violated plaintiff’s constitutional 18 rights. ECF No. 33. Specifically, plaintiff alleges that defendant Barrier deprived plaintiff of his 19 breakfasts and lunches from March 3, 2021, through March 17, 2021. Id. at 3. The first time that 20 plaintiff confronted Barrier about this deprivation, Barrier responded, “I don’t like you, eat shit or 21 get the fuck out of my building, i told you to remove the rug from your funk the other day and 22 you didn’t listen, now eat shit.” Id. at 4. The second time, Barrier told plaintiff to “get the fuck 23 out of [his] face” and challenged plaintiff to a fight. Id. at 4-5. 24 Sometime between March 12 and 14, plaintiff complained about Barrier’s actions to 25 Crother. Id. at 5. Crother told plaintiff to “take that up with your building officer’s sir i can’t 26 help you.” Id. On March 17, 2021, Barrier approached plaintiff’s cell and threatened to “fuck 27 him up” and told him “it’s best for [you] to get out of the building.” Id. 28 Plaintiff alleges that defendants’ actions caused him to feel lightheaded and dizzy, to 1 urinate on himself multiple times, and caused mental trauma, emotional distress, weight loss, and 2 humiliation. Id. at 4-5. Both defendants are sued in their individual and official capacities. Id. at 3 5-6. By way of relief, plaintiff seeks $100,000 in compensatory damages and $50,000 in punitive 4 damages. Id. at 7. 5 III. Claims for Which a Response Will Be Required 6 After conducting the screening required by 28 U.S.C. § 1915A(a), the court finds that 7 plaintiff has adequately stated a cognizable claim for relief under the Eighth Amendment against 8 Barrier for depriving plaintiff of adequate nutrition. 9 IV. Failure to State a Claim 10 A. Sovereign Immunity 11 “The Eleventh Amendment bars suits against the State or its agencies for all types of 12 relief.” See Krainski v. Nevada ex rel. Bd. of Regents of Nevada Sys. of Higher Educ.,

963, 967 (9th Cir. 2010). Claims for damages against state officials acting in their official 14 capacity are barred by sovereign immunity because “a suit against a state official in his or her 15 official capacity is not a suit against the official but rather is a suit against the official’s office” 16 and therefore “no different from a suit against the State itself.” Will v. Mich. Dep’t of State 17 Police,

(1989) (citations omitted). The Eleventh Amendment, however, does not 18 bar suits seeking damages against state officials in their individual capacities. Hafer v. Melo, 502

, 30-31 (1991). Nor does it bar suits seeking only prospective declaratory or injunctive 20 relief against state officers sued in their official capacities. Will,

. 21 Here, because plaintiff seeks damages, his claims against defendants Barrier and Crother 22 in their official capacities are barred. 23 B. First Amendment1 24 To the extent plaintiff seeks to assert a First Amendment claim against defendant Barrier, 25 such claim fails because he has not alleged that Barrier took an adverse action against him for 26

27 1 Although plaintiff does not expressly state he is alleging a First Amendment retaliation claim, the court nonetheless addresses a potential First Amendment claim because the SAC alleges facts 28 regarding retaliation. 1 engaging in protected conduct, nor has he alleged that Barrier’s conduct chilled plaintiff’s 2 exercise of his First Amendment rights in anyway. See Rhodes v. Robinson,

567- 3 68 (9th Cir. 2005) (“Within the prison context, a viable claim of First Amendment retaliation 4 entails five basic elements: (1) An assertion that a state actor took some adverse action against an 5 inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the 6 inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably advance a 7 legitimate correctional goal.”) (citations omitted). 8 C. Eighth Amendment 9 “The Constitution does not mandate comfortable prisons, but neither does it permit 10 inhumane ones.” Farmer v. Brennan,

(1994) (internal quotation marks and 11 citation omitted). “[A] prison official violates the Eighth Amendment only when two 12 requirements are met.”

. 13 “First, the deprivation alleged must be, objectively, ‘sufficiently serious.’”

(quoting 14 Wilson v. Seiter,

(1991)). To be sufficiently serious, “a prison official’s act or 15 omission must result in the denial of ‘the minimal civilized measure of life’s necessities.’”

16 (quoting Rhodes v. Chapman,

(1981)). The objective prong is not satisfied in 17 cases where prison officials provide prisoners with “adequate shelter, food, clothing, sanitation, 18 medical care, and personal safety.” Johnson v. Lewis,

(9th Cir. 2000) (quoting 19 Hoptowit v. Ray,

(9th Cir. 1982)). “[R]outine discomfort inherent in the 20 prison setting” does not rise to the level of a constitutional violation. Id. at 732. Rather, “extreme 21 deprivations are required to make out a[n] [Eighth Amendment] conditions-of-confinement 22 claim.” Hudson v. McMillian,

(1992). “More modest deprivations can also form 23 the objective basis of a violation, but only if such deprivations are lengthy or ongoing.” Johnson, 24

. 25 Second, the prison official must subjectively have a “sufficiently culpable state of mind,” 26 “one of ‘deliberate indifference’ to inmate health or safety.” Farmer,

(citations 27 omitted). “[T]he official must both be aware of facts from which the inference could be drawn 28 that a substantial risk of serious harm exists, and he must also draw the inference.”

. He 1 must then fail to take reasonable measures to lessen the substantial risk of serious harm.

at 2 847. Mere negligence on the part of the prison official is not sufficient to establish liability.

3 at 835. 4 As noted in the court’s prior screening order, to the extent plaintiff attempts to state an 5 Eighth Amendment claim against Barrier for threatening him with physical harm, such threat is 6 insufficient to establish a constitutional violation. See ECF No. 29 at 4; Gaut v. Sunn,

923, 925 (9th Cir. 1987) (per curiam) (“A mere threat may not state a cause of action” under the 8 Eighth Amendment.”); see also Corales v. Bennett,

(9th Cir. 2009). Also, 9 despite clarifying a deficiency in the FAC with respect to an Eighth Amendment claim against 10 Crother, the SAC still falls to state a claim against him. Even though plaintiff alleges he told 11 Crother about Barrier’s deprivation of food while it was ongoing, he also alleges that Crother did 12 not do anything to stop Barrier’s conduct because Crother believed he could not help plaintiff, 13 and that plaintiff needed to take his complaint to the building officer. At most, plaintiff has 14 alleged negligence, which is insufficient for an Eighth Amendment claim against defendant 15 Crother. 16 D. No Leave to Amend 17 Leave to amend should be granted if it appears possible that the defects in the complaint 18 could be corrected, especially if a plaintiff is pro se. Lopez v. Smith,

, 1130-31 19 (9th Cir. 2000) (en banc). However, if, after careful consideration, it is clear that a complaint 20 cannot be cured by amendment, the court may dismiss without leave to amend. Cato v. United 21 States,

(9th Cir. 1995). 22 The undersigned finds, as set forth above, that portions of the complaint fail to state a 23 claim upon which relief may be granted. Plaintiff has already been given two opportunities to 24 amend the complaint and advised what kind of information he needed to provide. However, the 25 allegations of the SAC do not overcome the defects identified in the FAC. The SAC does not 26 allege any new facts regarding Barrier’s retaliation. The SAC also continues to fail to allege 27 anything more than negligence against Crother. Given the minimal facts provided in each 28 amended complaint, it does not appear that further amendment would result in a cognizable claim 1 against Crother. Accordingly, the undersigned recommends dismissal of the non-cognizable 2 claims without further leave to amend. 3 V. Plain Language Summary of this Order for a Pro Se Litigant 4 Some of the allegations in the second amended complaint state claims against the 5 defendants and some do not. You have stated Eighth Amendment claims against defendant 6 Barrier in his individual capacity. You have not stated any other claims against defendant Barrier 7 or any claims against defendant Crother. 8 You were previously advised that you did not state a First Amendment claim against 9 Barrier because you had not alleged that his actions chilled your exercise of your First 10 Amendment rights, and that you had not stated an Eighth Amendment claim based on defendant 11 Barrier’s verbal threats because threats alone are insufficient to state an Eighth Amendment 12 claim. ECF No. 29 at 4. You were also advised that you did not state an Eighth Amendment 13 claim against defendant Crother because (1) you had not alleged that defendant Crother caused, 14 participated, or knew of Barrier’s or any other staff members’ violations and failed to prevent 15 them, and (2) even if you had alleged that Crother was aware of defendant Barrier’s violations 16 while they were ongoing, your allegations that Crother did not believe you at most alleged 17 negligence.

Your SAC does not allege any further facts in support of a retaliation claim, and 18 although your SAC now alleges that you told defendant Crother about defendant Barrier’s 19 violations while they were ongoing, your allegations that he told you he could not help you and 20 that you needed to take your complaints to a different official continue to, at most, allege 21 negligence. 22 Since you cannot overcome the Eleventh Amendment bar, verbal threats are insufficient to 23 state an Eighth Amendment claim, and it does not appear additional facts could resolve the issue 24 with your other claims, it is being recommended that your official capacity claims against Barrier 25 and Crother, your Eighth Amendment claim against Barrier based on verbal threats, your First 26 Amendment claim against Barrier, and your Eighth Amendment claim against Crother be 27 dismissed without leave to amend. 28 //// 1 In accordance with the above, IT IS HEREBY ORDERED that: 2 1. The complaint states a cognizable Eighth Amendment claim against defendant Barrier. 3 || Service is appropriate for this defendant. 4 2. E-Service on defendant Barrier will be directed by separate order. Plaintiff should not 5 || complete service paperwork for these defendants unless ordered to do so by the court. 6 IT IS FURTHER RECOMMENDED that the official capacity claims against defendants 7 || Barrier and Crother, the Eighth Amendment claim against defendant Barrier based on verbal 8 | threats, the First Amendment claim against defendant Barrier, and the Eighth Amendment claim 9 || against Crother be dismissed without leave to amend. 10 These findings and recommendations are submitted to the United States District Judge 11 || assigned to the case, pursuant to the provisions of

(b)(1). Within twenty-one days 12 | after being served with these findings and recommendations, plaintiff may file written objections 13 || with the court. Such a document should be captioned “Objections to Magistrate Judges Findings 14 | and Recommendations.” Plaintiff is advised that failure to file objections within the specified 15 || time may waive the right to appeal the District Court’s order. Martinez v. YIst,

16 | (9th Cir. 1991). 17 || DATED: July 14, 2025 ' ~ Ctt10 Lhar—e_ 18 ALLISONCLAIRE. SS 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28