“The district court's discretion to deny leave to amend is 8 particularly broad where plaintiff has previously amended the complaint.”
How later courts described this case
- “The district court's discretion to deny leave to amend is 8 particularly broad where plaintiff has previously amended the complaint.”
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
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11 GEORGE RUIZ PALOMAR, II, No. 2:23-cv-2329 DC SCR P
12 Plaintiff,
13 v. FINDINGS AND RECOMMENDATIONS
14 GAVIN NEWSOM, et al.,
15 Defendants.
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17 Plaintiff, a state prisoner proceeding pro se, seeks relief under 42 U.S.C. § 1983. This
18 matter was referred to the undersigned pursuant to Local Rule 302. See 28 U.S.C. § 636(b)(1).
19 Plaintiff’s second amended complaint is before the court for screening. For the reasons set forth
20 below, the complaint fails to state a claim, and further amendment would be futile due to
21 plaintiff’s repeated failure follow the court’s instructions regarding amendment of his complaint.
22 Accordingly, the undersigned recommends that plaintiff’s second amended complaint be
23 dismissed without leave to amend.
24 I. Statutory Screening of Prisoner Complaints
25 The court is required to screen complaints brought by prisoners seeking relief against “a
26 governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). In
27 performing this screening function, the court must dismiss any claim that “(1) is frivolous,
28 malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief
1 from a defendant who is immune from such relief.” Id. § 1915A(b). A claim is legally frivolous
2 when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325
3 (1989). The court may dismiss a claim as frivolous if it is based on an indisputably meritless
4 legal theory or factual contentions that are baseless. Neitzke, 490 U.S. at 327. The critical
5 inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and
6 factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989).
7 In order to avoid dismissal for failure to state a claim a complaint must contain more than
8 “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause
9 of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words,
10 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
11 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim upon which the
12 court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A claim has facial
13 plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
14 inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. When
15 considering whether a complaint states a claim, the court must accept the allegations as true,
16 Erickson v. Pardus, 551 U.S. 89, 93-94 (2007), and construe the complaint in the light most
17 favorable to the plaintiff, Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
18 II. Second Amended Complaint
19 The allegations, claims, defendants, and requested relief in plaintiff’s second amended
20 complaint are substantively the same as his first amended complaint. Plaintiff asserts four claims.
21 (ECF No. 15.) In the first, plaintiff alleges he has been repeatedly denied parole because (1) he
22 files appeals, (2) the Board of Prison Hearings (“BPH”) claimed certificates were falsified, and
23 (3) BPH raised his evaluation to “high violence” due to a traffic ticket he received in 1976. (Id. at
24 5-6.) BPH ordered plaintiff to stop filing appeals. (Id.) Plaintiff filed a habeas petition and sent
25 an extra copy to defendant Newsom, along with a parole hearing transcript, and received an
26 “Application for Commutation of Sentence” from the Governor’s Office. (Id. at 6.) Plaintiff did
27 not receive his parole hearing transcripts back, and thus was unable to appeal and cannot review
28 ///
1 the transcripts as required by BPH. (Id. at 6.) These actions were approved, if not implemented,
2 by California Department of Corrections and Rehabilitation (“CDCR”) Secretary Allison. (Id.)
3 In his second claim, plaintiff complains of the dental care and medical care he received
4 between 2000 and 2018. (ECF No. 15 at 7-8.) Defendant John Doe #1 responded to plaintiff’s
5 complaint of pain and bleeding was “all normal.” (Id. at 7.) Defendant Howen demanded
6 plaintiff allow removal of 15 teeth, which plaintiff refused, and Howen refused plaintiff any
7 dental care until plaintiff agreed to the massive extractions. (Id. at 7.) Defendant Jane Doe #3
8 refused to clean plaintiff’s teeth until after a damaging and painful “Comprehensive Exam” and
9 then refused to clean plaintiff’s teeth unless he would agree to five teeth extractions. (Id. at 8.)
10 Defendant Jane Doe #3 threatened to falsify plaintiff’s dental records by claiming none of his
11 teeth were any good to falsely justify continuing to denying all dental care permanently. (Id.)
12 Plaintiff also alleges in his second claim that, “[d]ue to a type of prison ‘kool-aid’ served
13 by CDCR” on or about February 15, 2018, plaintiff could not urinate and was taken to the
14 emergency clinic. (ECF No. 15 at 8.) Defendant Ross “began torturing plaintiff by repeatedly
15 ramming catheter in and out of his penis because it was clogged with blood; all the while verbally
16 abusing him, yelling at him to ‘shut up’ because of his screams of extreme pain.” (Id.) Plaintiff’s
17 requests to be sent to an outside hospital were denied and defendant Ross eventually sent plaintiff
18 back to his cell with the clogged catheter. (Id.) After many months, catheters, painful injections,
19 and rounds of antibiotics, plaintiff finally had surgery. (Id.) Finally, plaintiff alleges his last
20 three prisons have not honored his longstanding medical chronos for long sleeve shirts to prevent
21 the sun from dissolving his skin and for cotton blankets due to his asthma. (Id.)
22 In his third claim, plaintiff alleges facts spanning between 1981 and 2023. (ECF No. 15 at
23 9.) Between 1981-1983, Folsom Prison staff tried to have him killed by spreading rumors he was
24 an informant. (Id.) Between 2010-2012, the “Green Wall” gang at CSP-Corcoran disposed of his
25 packages and confiscated his documents and property. (ECF No. 10 at 9.) In 2020, defendant
26 Schuyler ordered plaintiff to climb stairs four times, contrary to plaintiff’s medical chrono, and
27 each time plaintiff explained why he couldn’t, she responded by yelling “I don’t care!!!” (Id.)
28 Defendant Schuyler also cancelled plaintiff’s transfer to Valley State Prison, never gave plaintiff
1 his 2023 parole hearing transcript, and upon the facility’s closure, had plaintiff sent to the hottest
2 and furthest prison in the state. (Id. at 9-10.) Defendant Schuyler called plaintiff’s doctor,
3 defendant Eaton, to cancel plaintiff’s aspirin therapy. (Id. at 10.) Defendant Eaton refused to
4 cancel plaintiff’s transfer to CVSP where temperatures reach 130 degrees, stating “Heat has
5 nothing to do with heat stroke.” (Id.)
6 In his fourth claim, plaintiff alleges his administrative appeals and court documents were
7 “taken in three stages by CDCR” as it is their policy to blacklist inmates who report crime. (ECF
8 No. 15 at 11.) Mail tampering is common. (Id.) Defendant Brown refused to process plaintiff’s
9 appeal concerning medical chronos. (Id.) Because plaintiff was never allowed the transcript of
10 his 2023 BPH Parole Hearing, he could not appeal that denial. “All because he reported BPH
11 Misconduct to the Governor in 2019.” (Id.)
12 The second amended complaint identifies ten defendants: (1) Governor Gavin Newsom;
13 (2) CDCR Secretary Kathleen Allison;1 (3) John Doe #1, dentist at the California Training
14 Facility (“CTF”); (4) Dr. Darrell Howen, dentist at CSP-Corcoran; (5) Jane Doe #2, dentist at
15 CTF; (6) Dr. Racheal Ross, medical doctor at CSP-Corcoran; (7) John Doe #3, medical doctor at
16 CSP-Corcoran; (8) Ms. T. Schuyler, correctional counselor at the California Correctional
17 Institution (“CCI”); (9) Dr. Douglas Eaton, medical doctor at CCI; and (10) Brown, health care
18 grievance office representative at CSP-Sac. (ECF No. 15 at 1-2.) Plaintiff requests, inter alia,
19 $10 million dollars in compensatory and punitive damages. (Id. at 12.)
20 III. Discussion
21 In the last screening order dated January 25, 2025, the undersigned determined that
22 plaintiff’s first amended complaint failed to state a claim against any defendants and granted
23 plaintiff leave to file an amended complaint. (ECF No. 14.) The order summarized the first
24 amended complaint’s deficiencies as follows:
25 The magistrate judge previously assigned to this case screened plaintiff’s original
complaint, identified several problems, and gave plaintiff applicable legal
26 standards for his claims. (See ECF No. 7.) Plaintiff has not remedied the problems
identified in his original complaint. Plaintiff’s first amended complaint still
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28 1 Defendant Allison is the former Secretary of CDCR.
1 attempts to join multiple unrelated claims against multiple defendants and still
includes allegations about conduct that occurred decades ago, for which his
2 claims may be barred by the statute of limitations. Setting aside for now any
issues with improper joinder or timeliness of claims, the first amended complaint
3 must be dismissed because it does not state a clam for relief.
4 (Id. at 4.) The order advised plaintiff that amendment “is not for the purpose of adding new and
5 unrelated claims. Plaintiff should focus on fixing the deficiencies in the claims already
6 presented.” (Id. at 7.)
7 Plaintiff’s second amended complaint, however, does not remedy any of the problems
8 with his original or first amended complaint and includes only barely perceptible changes. For
9 example, the undersigned gave plaintiff an opportunity to amend in part to adequately plead
10 Governor Newsom’s and former Secretary Allison’s personal participation in the alleged
11 violations. (See ECF No. 15 at 5.) Plaintiff repeats the same claims for relief but tacks on
12 conclusory and factually unsupported sentences at the end to implicate Governor Newsom and
13 former CDCR Secretary Allison in the alleged violations. (See, e.g., id. at 10 (“Blacklisting
14 inmates for appeals is CDCR statewide policy …. therefore, must have been approved, (if not
15 implemented) by Defendant Allison”); id. at 11 (explaining that the denial of his grievance appeal
16 “grants Defendants Newsom and Allison further deniability.”).) These additions do not cure the
17 amended complaint’s linkage issues and do not suffice to state a claim. See Ivey v. Bd. Of
18 Regents, 673 F.2d 266, 268 (9th Cir. 1982) (citations omitted) (“Vague and conclusory
19 allegations of official participation in civil rights violations are not sufficient.”).
20 Plaintiff does not attempt to cure his failures to state a claim against any of the other eight
21 defendants. He appears to have copied and pasted the first amended complaint with only minor
22 changes, such as edits to reference the document as the “second amended complaint.” (See, e.g.,
23 ECF No. 15 at 11 (This Court has ordered this Second Amended Complaint….”.) Nor does
24 plaintiff address the joinder or statute of limitations issues evident from the face of his original
25 and first amended complaints and identified in the court’s last screening order; the dates and
26 unrelated occurrences all remain the same. Accordingly, the undersigned finds that plaintiff’s
27 second amended complaint also fails to state a claim upon which relief may be granted.
28 ///
1 IV. No Leave to Amend
2 Leave to amend should be granted if it appears possible that the defects in the complaint
3 could be corrected, especially if a plaintiff is pro se. Lopez v. Smith, 203 F.3d 1122, 1130-31
4 (9th Cir. 2000) (en banc). However, a district court may deny leave to amend for “repeated
5 failure to cure deficiencies by amendments previously allowed[.]” Leadsinger, Inc. v. BMG
6 Music Pub., 512 F.3d 522, 532 (9th Cir. 2008); see also In re Vantive Corp. Sec. Litig., 283 F.3d
7 1079, 1097–98 (9th Cir. 2002) (“The district court's discretion to deny leave to amend is
8 particularly broad where plaintiff has previously amended the complaint.”) (internal quotations
9 and citation omitted).
10 The undersigned finds that, as set forth above, the complaint fails to state a claim upon
11 which relief may be granted. Plaintiff has already received two opportunities to amend the
12 complaint and was advised what kind of information he needed to provide. Given the vague and
13 conclusory nature of plaintiff’s additional facts regarding Governor Newsom and former
14 Secretary Allison, as well as his repeated failures to follow the court’s instructions, it does not
15 appear that further amendment would result in a cognizable claim. As a result, leave to amend
16 would be futile and the complaint should be dismissed without leave to amend.
17 CONCLUSION
18 In accordance with the above, IT IS HEREBY RECOMMENDED that the complaint be
19 dismissed without leave to amend for failure to state a claim.
20 These findings and recommendations are submitted to the United States District Judge
21 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days
22 after being served with these findings and recommendations, plaintiff may file written objections
23 with the court. Such a document should be captioned “Objections to Magistrate Judges Findings
24 and Recommendations.” Plaintiff is advised that failure to file objections within the specified
25 ///
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1 || time may waive the right to appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153
2 || (9th Cir. 1991).
| DATED: March 26, 2025.
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SEAN C. RIORDAN
8 UNITED STATES MAGISTRATE JUDGE
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