McElroy v. Gomez, Case No.: 1:20-cv-00658-NONE-SAB (PC)
| Decision Date | 09 November 2020 |
| Docket Number | Case No.: 1:20-cv-00658-NONE-SAB (PC) |
| Parties | LATWAHN MCELROY, Plaintiff, v. GOMEZ, et al., Defendants. |
| Court | U.S. District Court — Eastern District of California |
FINDINGS AND RECOMMENDATIONS RECOMMENDING THIS ACTION BE DISMISSED FOR FAILURE TO COMPLY WITH A COURT ORDER, FAILURE TO PROSECUTE, AND FAILURE TO STATE A COGNIZABLE CLAIM FOR RELIEF
Plaintiff Latwahn McElroy is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
This case has a rather lengthy history given Plaintiff's failure to comply and/or respond to the Court's orders.
On June 11, 2020, the Court screened Plaintiff's complaint, found no cognizable claims were stated, and granted Plaintiff thirty days to file an amended complaint. (ECF No. 8.)
On this same date, Plaintiff filed a motion for appointment of counsel, which was denied, without prejudice on June 12, 2020. (ECF Nos. 9, 10.)
/// On June 15, 2020, Plaintiff filed a motion for a temporary restraining order. (ECF No. 11.) On June 16, 2020, the Court issued Findings and Recommendations recommending that Plaintiff's motion for a temporary restraining order be denied. (ECF No. 13.)
On June 17, 2020, Plaintiff filed a motion for appointment of counsel. (ECF No. 14.)
On June 18, 2020, Plaintiff filed a second motion for a temporary restraining order. (ECF No. 15.) On this same date, the Court denied, without prejudice, Plaintiff's motion for appointment of counsel. (ECF No. 16.)
On June 22, 2020, the Court issued Findings and Recommendations recommending that Plaintiff's second motion for a temporary restraining order be denied. (ECF No. 17.)
On July 16, 2020, the Court adopted the June 16, 2020 Findings and Recommendations in full, and Plaintiff's first motion for a temporary restraining order was denied. (ECF No. 19.)
On July 20, 2020, the Court issued an order to show cause why the action should not be dismissed for Plaintiff's failure to file an amended complaint. (ECF No. 20.)
On July 31, 2020, Plaintiff filed a request for an extension of time to comply with the order to show cause, along with a separate petition for writ of mandamus, request for a preliminary injunction, and request for appointment of counsel. (ECF Nos. 24, 25.)
On August 4, 2020, the Court discharged the July 20, 2020 order to show cause and granted Plaintiff thirty days to file an amended complaint. (ECF No. 26.)
On August 12, 2020, the Court issued Findings and Recommendations recommending that Plaintiff's petition for writ of mandamus, request for a preliminary injunction, and request for appointment of counsel be denied. (ECF No. 27.)
On September 14, 2020, the Court issued another order to show cause why the action should not be dismissed because Plaintiff failed to respond to the Court's screening order. (ECF No. 30.)
On September 22, 2020, the Court adopted the Findings and Recommendations in full and denied Plaintiff's petition for writ of mandamus, request for preliminary injunction, and request for appointment of counsel. (ECF No. 31.)
///
/// On September 24, 2020, Plaintiff filed a response to the Court's September 14, 2020 order to show cause. (ECF No. 32.) In his response, Plaintiff argued that he was in need of appointment of counsel and Defendants should be held liable. (Id.)
On September 28, 2020, the Court discharged the order to show cause and granted Plaintiff one final opportunity to amend the complaint. (ECF No. 33.) Plaintiff was specifically advised that if he wished to proceed with this action, (Id.)
Plaintiff has failed to respond to the Court's September 28, 2020 order and has not filed an amended complaint. Accordingly, dismissal of the action is warranted.
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that "fail[] to state a claim on which relief may be granted," or that "seek[] monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B).
A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate that each defendant personally participated in the deprivation of Plaintiff's rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).
Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). To survive screening, Plaintiff's claims must be facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The "sheer possibility that a defendant has acted unlawfully" is not sufficient, and "facts that are 'merely consistent with' a defendant's liability" falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.
The bulk of Plaintiff's 34-page complaint is rambling, incoherent and hard to decipher as it is not in chronological order and repeats numerous irrelevant factual allegations. However, the Court will summarize the complaint as best as it can decipher and provide the applicable legal standards.
Plaintiff is a member of the Armstrong/Plata/Coleman class with severe mobility impairment, including nerve damage. Plaintiff has a medical chrono documenting his single cell status. Plaintiff attempted to hand the chrono to the UCC members. However, Defendant officers Morales, Melendes, Gomez, and Doe clinical physician threatened to harass Plaintiff with another prisoner.
Officer Gallardo wrongfully confiscated Plaintiff's battery charger and CD/radio that arrived at North Kern State Prison, which was previously approved at the prior facility.
Officers Morales, Gallegos, Melendes and unidentified others, wrongfully confiscated Plaintiff's legal belongings as well as several personal hygiene items.
On March 24 and 25, 2020, Plaintiff needed assistance and cleaning supplies due to "mishap" of toilet/floor, underwear and towel. Plaintiff needed the return/refill of bodily necessities, but the floor officers refused to him or exchange the laundry.
On March 28, 2020, Plaintiff collapsed while attempting to walk to the bunk and fell forward bruising his left leg on the foot of the bunk.
On April 3, 2020, Plaintiff suffered another mishap with the floor and had no way to clean and recover from the dingy cell, body and clothing. Officers Morales and another unknown officer toldPlaintiff that they were out of toothpaste, soap and toilet paper, and Plaintiff had to wait a week to get sanitary cell block liquid solution. Officers Morales, Luna, and several other unknown officers left Plaintiff in cell 102, despite his repeated notification of the necessity for a cell that was ADA compliant.
On April 2 and 3, 2020, Plaintiff had to re-write several court papers and grievances regarding the prison conditions.
On April 6, 2020, Plaintiff was denied access to the law library, and legal actions were delayed for no logical reason.
On April 7, 2020, Plaintiff had another slip and fall in cell 102.
On April 8, 2020, Plaintiff re-appealed the issue of single cell status.
On April 13, 2020, law library access was again denied.
On April 16, 2020, Plaintiff had to (at the order or threat of rejection/cancellation of appeal) separate the classification issue of credit and single cell status.
On April 18-20, 2020, Plaintiff again warned the building officers Chavis, Luna, Morales, and an unknown officer that he could not move around very well and he was suffering medical consequences as a result. Plaintiff also advised that he and other prisoners were arguing daily, and Plaintiff was suffering mentally and medically.
On April 20-21, 2020, officers watched as Plaintiff had trouble getting off the toilet due to chest pain and a swollen ankle. Officer Madrid did nothing to assist and merely responded that there was no nurse to call for assistance.
On April 21, 2020, Plaintiff spoke with nurse Robinson who stated that despite the requests made, the clinic physician made no note or response for custody officers about Plaintiff receiving a lay-in or chrono to use a short cut to get meals. Plaintiff has missed approximately 30 meals altogether.
From April 16 to May 1, 2020, there was cell feeding.
On approximately April 29, 2020, Plaintiff mailed a Form 22 request to the Chief Medical Officer regarding his medical conditions and need for ADA accommodations.
On April 30, 2020, Plaintiff informed officer Luna and other medical providers that he had reoccurring stomach...
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