Trimble

[7] 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA [10] IN RE LOUIS C. TRIMBLE, 11 Case No. 20-09417 BLF (PR) Plaintiff. 12 ORDER OF DISMISSAL [16] 17 Plaintiff, a state inmate at San Quentin State Prison (“SQSP”), filed the instant pro 18 se civil rights action pursuant to 42 U.S.C. § 1983 for conditions of confinement with 19 respect to the COVID-19 pandemic. Dkt. No. 1. The Court dismissed the complaint with 20 leave to amend to correct various pleading deficiencies. Dkt. No. 12. Plaintiff filed an 21 amended complaint. Dkt. No. 21. [22] 23 DISCUSSION 24 A. Standard of Review 25 A federal court must conduct a preliminary screening in any case in which a 26 prisoner seeks redress from a governmental entity or officer or employee of a 27 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 1 upon which relief may be granted or seek monetary relief from a defendant who is immune 2 from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally 3 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 4 To state a claim under 42 U.S.C. § 1983 , a plaintiff must allege two essential 5 elements: (1) that a right secured by the Constitution or laws of the United States was 6 violated, and (2) that the alleged violation was committed by a person acting under the 7 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 8 B. Plaintiff’s Claims 9 In the original complaint, Plaintiff claimed that after his cellmate tested positive for 10 COVID-19 in August 2020, the cellmate was not removed but remained housed with 11 Plaintiff. Dkt. No. 1 at 3. Plaintiff claims that ten days later, he also tested positive for 12 COVID-19. Id. He was then placed on lock down. Id. Plaintiff sought damages or 13 release from prison. Id. 14 In dismissing the complaint with leave to amend, the Court advised Plaintiff that his 15 pleading was deficient because it was unclear where the events took place and he failed to 16 name any defendant or describe anyone’s actions that resulted in his injuries. Dkt. No. 12 17 at 2. Furthermore, although Plaintiff indicated that “there is no grievance at this prison” 18 with respect to the exhaustion of administrative remedies, the Court advised him that 19 SQSP has a grievance procedure in place which Plaintiff must utilize before bringing suit 20 in this Court. Id. Lastly, the Court advised Plaintiff that he could not obtain immediate 21 release from prison through a § 1983 action, and that habeas was the “exclusive remedy” 22 for the prisoner who seeks “‘immediate or speedier release’” from confinement. Id. at 2-3, 23 citing Skinner v. Switzer, 562 U.S. 521, 533-34 (2011) (quoting Wilkinson v. Dotson, 544 24 U.S. 74, 82 (2005)). 25 In the amended complaint, Plaintiff now claims that around June 2020, he tested 26 positive for the virus and that his cell mate also had it. Dkt. No. 21 at 2. Plaintiff claims 1 there “was no movement at that time.” Id. at 3. Plaintiff claims Officer Dollyworth would 2 not move him or his cell mate until he got “really sick.” Id. at 4. By that time it was 3 August 2020, at which point he was moved to the “tents outside” where they had about 80 4 sick people. Id. at 3. Plaintiff claims he “thought [he] was gonna die,” and that he’s lost 5 about 40 pounds. Id. He seeks release from prison and “some money.” Id. 6 Plaintiff has failed to correct the deficiencies from the original complaint. Even if 7 the Court assumes that the underlying events took place at SQSP where Plaintiff is 8 currently confined, he fails to name even a single defendant in this action. Furthermore, 9 although Plaintiff names Officer Dollyworth in his statement of claim, there is no 10 allegation that Officer Dollyworth’s actions resulted in the deprivation of a constitutional 11 right.1 See Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988). As before, Plaintiff 12 requests his “freedom,” i.e., release from prison, which he was already advised is not 13 available through a § 1983 action. Lastly, Plaintiff again indicates that “there is no 14 grievance procedure,” Dkt. No. 21 at 2, but this is simply not true. 15 Plaintiff was already afforded one opportunity to amend, and the Court finds no 16 good cause to grant him another opportunity where the amended complaint does not 17 correct the deficiencies from the original. Wagh v. Metris Direct, Inc., 363 F.3d 821 , 830 18 (9th Cir. 2003) (district court’s discretion to deny leave to amend particularly broad where 19 plaintiff has previously filed an amended complaint); Ferdik v. Bonzelet, 963 F.2d 1258 , 20 1261 (9th Cir. 1992). Accordingly, this action must be dismissed for failure to state a 21 claim. 22 /// 23 /// 24 /// [25] 1 Plaintiff was advised of the legal standard to establish an individual’s liability under § [26] 1983 and what was necessary to state an Eighth Amendment claim challenging conditions 1 CONCLUSION 2 For the foregoing reasons, the amended complaint is DISMISSED with prejudice 3 || for failure to state a claim for which relief can be granted. 4 IT IS SO ORDERED. 5 || Dated: __April 7, 2022 tn) BETH LABSON FREEMAN 6 United States District Judge [11] g 2B [16] Oo Z 18 [24] 25 PRO: SEBLIACR 20094 17Trimble_dism(ftsac)