(PC) Buckner v. Sacramento County Jail

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 LADARRIAN BUCKNER, No. 2:21-cv-1922 JAM KJN P 12 Plaintiff, 13 v. FINDINGS & RECOMMENDATIONS 14 SACRAMENTO COUNTY JAIL, et al., 15 Defendants. [16] 17 Plaintiff is a state prisoner, proceeding pro se. This proceeding was referred to this court 18 pursuant to 28 U.S.C. § 636 (b)(1) and Local Rule 302. Plaintiff’s second amended complaint is 19 before the court. As discussed below, plaintiff fails to state a cognizable civil rights claim, and 20 this action should be dismissed without leave to amend. 21 Plaintiff’s Second Amended Complaint 22 Plaintiff claims that three defendants, correctional officers at the Sacramento County Jail, 23 all slandered plaintiff prior to his conviction, causing plaintiff pain and suffering. (ECF No. 19.) 24 Plaintiff seeks money damages. 25 Screening Standards 26 The court is required to screen complaints brought by prisoners seeking relief against a 27 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 28 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 1 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 2 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 3 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 4 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 5 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 6 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, [7] 490 U.S. at 327 . The critical inquiry is whether a constitutional claim, however inartfully 8 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 9 Cir. 1989); Franklin, 745 F.2d at 1227 . 10 A complaint, or portion thereof, should only be dismissed for failure to state a claim upon 11 which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in 12 support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding, 467 13 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt 14 Lake Log Owners Ass’n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under 15 this standard, the court must accept as true the allegations of the complaint in question, Hosp. 16 Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light 17 most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor, Jenkins v. 18 McKeithen, 395 U.S. 411, 421 (1969). 19 Discussion 20 Plaintiff’s defamation claim, based on his allegation of slander, the oral form of 21 defamation of character, is not cognizable under 42 U.S.C. § 1983.1 Despite using the court’s 22 complaint form, plaintiff identifies no violation of his rights under federal law or the U.S. 23 Constitution. Defamation, standing alone, does not state a constitutional claim, even when done 24 under color of state law. See Paul v. Davis, 424 U.S. 693, 701-10 (1976); Rutledge v. Arizona 25 Board of Regents, 660 F.2d 1345, 1353 (9th Cir. 1981), aff’d sub nom. Kush v. Rutledge, 460 [26] 1 Rather, plaintiff’s slander claim, if any, arises under state law. See, e.g., Shively v. Bozanich, [27] 31 Cal.4th 1230, 1241-42 , 7 Cal.Rptr.3d 576 (Cal. 2003) (defining slander as a “false and unprivileged oral communication attributing to a person . . . certain unfavorable characteristics or 28 qualities”). 1 | U.S. 719 (1983); see also Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981) (no subject 2 || matter jurisdiction over claim of slander by police officer because no violation of federal right). 3 || Accordingly, plaintiff's defamation claim must be dismissed for failure to state a claim for relief. 4 Because plaintiff alleges no separate cognizable federal claim, as explained above, and 5 || has now twice failed to do so, plaintiff's second amended complaint should be dismissed without 6 || prejudice, but without further leave to amend. Such amendment would be futile in the absence of 7 || the violation of a federal right. 8 Accordingly, IT IS HEREBY RECOMMENDED that plaintiffs second amended 9 || complaint be dismissed without prejudice, but 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 28 U.S.C. § 636 (b)(1). Within fourteen days 12 || after being served with these findings and recommendations, plaintiff may file written objections 13 || with the court and serve a copy on all parties. Such a document should be captioned 14 | “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that 15 || failure to file objections within the specified time may waive the right to appeal the District 16 || Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 17 | Dated: May 26, 2022 i Aectl Aharon 19 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE [20] fouck1922.56.sL