Tyler v. Gomez

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 CLAUDIE TYLER, Case No.: 3:22-cv-1906-DMS-DEB CDCR #K-19763 [12] ORDER DISMISSING SECOND Plaintiff, 13 AMENDED COMPLAINT FOR vs. FAILURE TO STATE A CLAIM [14] PURSUANT TO 28 U.S.C. § 1915A(b) [15] B. GOMEZ; LOPEZ; [16] E. RODRIGUEZ; F. FLORES, 17 Defendants. [21] 22 I. Procedural History 23 On December 1, 2022, Plaintiff Claudie Tyler (“Plaintiff”), currently incarcerated at 24 the Richard J. Donovan Correctional Facility (“RJD”), filed this pro se civil rights action 25 pursuant 42 U.S.C. Section 1983 alleging that numerous officials at RJD violated 26 Plaintiff’s Eighth Amendment rights from June 1, 2018 to November 1, 2022. See 27 generally ECF No. 1, Compl. 28 / / / 1 Plaintiff prepaid the initial civil filing fee on January 13, 2023. See ECF No. 8. 2 Thus, the Court conducted the required sua sponte screening of Plaintiff’s Complaint 3 pursuant to 28 U.S.C. § 1915A and found that Plaintiff failed to state a claim upon which 4 relief could be granted. See ECF No. 9, Order Dismissing Complaint dated Jan. 20, 5 2023. However, the Court granted leave to file an amended complaint in order to correct 6 the deficiencies of pleading identified in the Court’s Order. See id. at 5. On February 7, 7 2023, Plaintiff filed his First Amended Complaint (“FAC”). See ECF No. 10. However, 8 once again, the Court found that Plaintiff failed to state a claim upon which relief could 9 be granted and dismissed Plaintiff’s FAC with leave to amend. See ECF No. 11, Order 10 Dismissing FAC dated Feb. 24, 2023. 11 Plaintiff was also cautioned that “Defendants not named and any claim not re12 alleged in his Amended Complaint will be considered waived.” Id. at 5 citing S.D. Cal. 13 Civ. L.R. 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542 , 14 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the original.”); Lacey v. 15 Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with 16 leave to amend which are not re-alleged in an amended pleading may be “considered 17 waived if not repled.”). 18 On March 13, 2023, Plaintiff filed his Second Amended Complaint (“SAC”). See 19 ECF No. 12. In his SAC, Plaintiff no longer names Gomez, Lopez, or Rodriquez as 20 Defendants. See id. at 1, 2. Therefore, all claims against these Defendants have been 21 waived. See Lacey, 693 F.3d at 928 . 22 II. Sua Sponte Screening pursuant to 28 U.S.C. Section 1915A(b) 23 A. Standard of Review 24 As the Court explained in its previous Orders, the Court must conduct an initial 25 review of Plaintiff’s SAC pursuant to 28 U.S.C. § 1915A(a), because he is a prisoner and 26 seeks “redress from a governmental entity or officer or employee of a governmental 27 entity.” See 28 U.S.C. § 1915A(a). Section 1915A(a) “mandates early review—‘ before 28 docketing [] or [] as soon as practicable after docketing’—for all complaints ‘in which a 1 prisoner seeks redress from a governmental entity or officer or employee of a governmental 2 entity.’” Chavez v. Robinson, 817 F.3d 1162, 1168 (9th Cir. 2016). The mandatory 3 screening provisions of § 1915A apply to all prisoners, no matter their fee status, who bring 4 suit against a governmental entity, officer, or employee. See, e.g. Resnick v. Hayes, 213 5 F.3d 443, 446-47 (9th Cir. 2000). 6 “On review, the court shall … dismiss the complaint, or any portion of the 7 complaint,” if it “(1) is frivolous, malicious, or fails to state a claim upon which relief may 8 be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.” 9 Olivas v. Nevada ex rel. Dept. of Corr., 856 F.3d 1281, 1283 (9th Cir. 2017) (citing 28 10 U.S.C. § 1915A(b)). “Failure to state a claim under § 1915A incorporates the familiar 11 standard applied in the context of failure to state a claim under Federal Rule of Civil 12 Procedure 12(b)(6).” Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012). 13 B. Plaintiff’s Factual Allegations 14 Plaintiff alleges that he was employed as a “3rd Watch Porter” from June 1, 2018 15 to November 1, 2022 but “did not receive monthly pay” during this period. See SAC, 16 ECF No. 12 at 4. Plaintiff alleges Defendant Flores “failed to put Plaintiff’s monthly 17 hours to be processed through accounting” which caused Plaintiff not to be paid. Id. 18 Plaintiff claims that the failure to be paid caused him “depression and anxiety.” Id. at 5. 19 Plaintiff purportedly spoke to Flores “on several occasions about this matter but not was 20 done to resolve [it].” Id. Plaintiff seeks $250,000 in compensatory damages and $27,000 21 in punitive damages. See id.at 7. 22 C. Analysis 23 To state a claim under 42 U.S.C. Section 1983 , a plaintiff must allege two essential 24 elements: (1) that a right secured by the Constitution or laws of the United States was 25 violated, and (2) that the alleged violation was committed by a person acting under the 26 color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye, 789 F.3d 1030 , 27 1035-36 (9th Cir. 2015). [28] 1 1. Job and wages 2 Plaintiff seeks to hold Defendant Flores liable for violating his Fourteenth 3 Amendment due process rights by allegedly failing to process the hours he worked as a 4 porter and as a result, Plaintiff was not paid for his prison employment. However, as the 5 Court informed Plaintiff in both of its previous Orders, the “Due Process Clause does not 6 create a property or liberty interest in prison employment.” Walker v. Gomez, 370 F.3d 7 969, 973 (9th Cir. 2004) (quoting Ingram v. Papalia, 804 F.2d 595, 596 (10th Cir. 1986), 8 and citing Baumann v. Arizona Dep't of Corrections, 754 F.2d 841, 846 (9th Cir. 1985)); 9 see also Vignolo v. Miller, 120 F.3d 1075, 1077 (9th Cir. 1997); 10 Toussaint v. McCarthy, 801 F.2d 1080, 1094-95 (9th Cir. 1986); Rizzo v. Dawson, 778 11 F.2d 527, 531 (9th Cir. 1985); see also Hrbek v. Farrier, 787 F.2d 414, 416 (8th Cir. 1986) 12 (“There is no constitutional right to prison wages and any such compensation is by the 13 grace of the state.”). Plaintiff is unable to demonstrate either a liberty or property interest 14 in his prison employment arising directly under the Fourteenth Amendment. 15 Accordingly, the Court DISMISSES Plaintiff’s SAC for failing to state a claim upon 16 which relief may be granted. 17 III. Conclusion and Orders 18 Good cause appearing, the Court: 19 (1) DISMISSES Plaintiff’s SAC on the ground that he has failed to state a 20 claim pursuant to 28 U.S.C. § 1915A. The Court also DENIES Plaintiff leave to amend 21 as futile. See Gonzalez v. Planned Parenthood, 759, F.3d 1112, 1116 (9th Cir. 2014) 22 (“‘Futility of amendment can, by itself, justify the denial of ... leave to amend.’”) 23 (quoting Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995)); Zucco Partners, LLC v. 24 Digimarc Corp., 552 F.3d 981, 1007 (9th Cir. 2009) 25 / / / 26 / / / 27 / / / 28 / / / 1 (2) DIRECTS the Court of Court to enter judgment for Defendants and close 2 || the file. 3 IT IS SO ORDERED. 4 ||Dated: March 17, 2023 em Dh 5 a Yn. Hon. Dana M. Sabraw, Chief Judge 6 United States District Court [28] 5 oe