(PC) Brown v. Director of Corrections

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 SKYLER R. BROWN, No. 2:20-cv-1734 DB P 12 Plaintiff, 13 v. ORDER 14 DIRECTOR OF CORRECTIONS, et al., 15 Defendants. [16] 17 Plaintiff is a state prisoner proceeding pro se with a civil rights action under 42 U.S.C. § 18 1983. Plaintiff claims that an unnamed defendant violated his Eighth Amendment rights by 19 failing to protect him. Plaintiff also claims that defendants Allen and Chao were deliberately 20 indifferent in violation of his Eighth Amendment rights. Before the court is plaintiff’s motion to 21 proceed in forma pauperis (ECF No. 10) and his complaint for screening (ECF No. 1). 22 IN FORMA PAUPERIS 23 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 24 1915(a). (ECF No. 10.) Accordingly, the request to proceed in forma pauperis will be granted. 25 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 26 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in 27 accordance with the provisions of 28 U.S.C. § 1915 (b)(1). By separate order, the court will direct 28 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 1 forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments 2 of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account. 3 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 4 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 5 1915(b)(2). 6 SCREENING 7 I. Legal Standards 8 The court is required to screen complaints brought by prisoners seeking relief against a 9 governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 10 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims 11 that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be 12 granted, or that seek monetary relief from a defendant who is immune from such relief. See 28 13 U.S.C. § 1915A(b)(1) & (2). 14 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 15 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 16 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 17 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, [18] 490 U.S. at 327 . The critical inquiry is whether a constitutional claim, however inartfully 19 pleaded, has an arguable legal and factual basis. See Franklin, 745 F.2d at 1227 . Rule 8(a)(2) of 20 the Federal Rules of Civil Procedure “requires only ‘a short and plain statement of the claim 21 showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what 22 the . . . claim is and the grounds upon which it rests.’” Bell Atlantic Corp. v. Twombly, 550 U.S. 23 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 24 However, in order to survive dismissal for failure to state a claim a complaint must 25 contain more than “a formulaic recitation of the elements of a cause of action;” it must contain 26 factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, [27] 550 U.S. at 555 . In reviewing a complaint under this standard, the court must accept as true the 28 allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 1 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all 2 doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 3 The Civil Rights Act under which this action was filed provides as follows: 4 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation 5 of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, 6 or other proper proceeding for redress. [7] 42 U.S.C. § 1983 . The statute requires that there be an actual connection or link between the 8 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 9 Monell v. Dept. of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). “A 10 person ‘subjects’ another to the deprivation of a constitutional right, within the meaning of § 11 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform 12 an act which he is legally required to do that causes the deprivation of which complaint is made.” 13 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 14 Moreover, supervisory personnel are generally not liable under § 1983 for the actions of 15 their employees under a theory of respondeat superior and, therefore, when a named defendant 16 holds a supervisorial position, the causal link between him and the claimed constitutional 17 violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); 18 Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations 19 concerning the involvement of official personnel in civil rights violations are not sufficient. See 20 Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 21 II. Allegations in the Complaint 22 Plaintiff states that the events giving rise to his claim occurred while he was incarcerated 23 at Mule Creek State Prison (“MCSP”). (ECF No. 1 at 1.) Plaintiff names as defendants 24 correctional officer Chao, correctional officer Allen, and a Lieutenant at MCSP (“Doe”) whose 25 identity is not known but who was on “2nd watch” on August 28, 2019. (Id. at 2.) 26 Plaintiff’s complaint contains the following allegations: on or about August 28, 2019 27 plaintiff informed defendant Doe that he had been attacked by other inmates and that he had 28 concerns about his safety. (Id. at 3.) Defendant Doe refused to assist plaintiff and directed him to 1 return to his cell, stating that he did not see any injuries on plaintiff. (Id.) During this interaction, 2 plaintiff’s cellmate threatened the plaintiff. (Id.) Plaintiff’s cellmate is affiliated with the inmates 3 who previously assaulted the plaintiff. (Id.) Despite the threats from plaintiff’s cellmate, 4 defendant Doe ordered plaintiff to return to his cell. (Id.) Plaintiff refused to return to his cell. 5 (Id.) Plaintiff was later attacked by other inmates resulting in plaintiff requiring surgery. (Id.) 6 Plaintiff does not provide the date of this assault or any additional details about it. 7 Plaintiff also alleges that defendants Chao and Allen violated plaintiff’s Eighth 8 Amendment rights by ignoring plaintiff’s “pleas for intervention in a potential battery.” (Id. at 4.) 9 Plaintiff claims that defendants Chao and Allen knew that by refusing to assist plaintiff, they were 10 permitting plaintiff to be assaulted. (Id.) It is unclear from the facts in the complaint if this 11 assault is connected to the one alleged in the claim against defendant Doe. 12 III. Does Plaintiff State a Claim under § 1983? 13 A. Legal Standards under the Eighth Amendment 14 The Eighth Amendment prohibits the infliction of “cruel and unusual punishments.” U.S. 15 Const. amend. VIII. The unnecessary and wanton infliction of pain constitutes cruel and unusual 16 punishment prohibited by the Eighth Amendment. Whitley v. Albers, 475 U.S. 312, 319 (1986); 17 Ingraham v. Wright, 430 U.S. 651, 670 (1977); Estelle v. Gamble, 429 U.S. 97, 105-06 (1976). 18 Neither accident nor negligence constitutes cruel and unusual punishment, as “[i]t is obduracy 19 and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited 20 by the Cruel and Unusual Punishments Clause.” Whitley, 475 U.S. at 319 . 21 B. Eighth Amendment Failure to Protect 22 Prison officials have a duty “to take reasonable measures to guarantee the safety of 23 inmates, which has been interpreted to include a duty to protect prisoners.” Labatad v. 24 Corrections Corp. of America, 714 F.3d 1155, 1160 (9th Cir. 2013) (citing Farmer v. Brennan, [25] 511 U.S. 825, 832-33 (1994) and Hearns v. Terhune, 413 F.3d 1036 , 1040 (9th Cir. 2005)). To 26 establish a violation of this duty, a prisoner must “show that the officials acted with deliberate 27 indifference to threat of serious harm or injury to an inmate.” Labatad, 714 F.3d at 1160 (citing 28 Gibson v. County of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002)). 1 A failure to protect claim under the Eighth Amendment requires a showing that “the 2 official [knew] of and disregard[ed] an excessive risk to inmate . . . safety.” Farmer, 511 U.S. at 3 837. “Whether a prison official had the requisite knowledge of a substantial risk is a question of 4 fact subject to demonstration in the usual ways, including inference from circumstantial evidence, 5 . . . and a factfinder may conclude that a prison official knew of a substantial risk from the very 6 fact that the risk was obvious.” Id. at 842 (citations omitted). The duty to protect a prisoner from 7 serious harm requires that prison officials take reasonable measures to guarantee the safety and 8 well-being of the prisoner. Id. at 832-33 ; Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). 9 Because “only the unnecessary and wanton infliction of pain implicates the Eighth Amendment,” 10 plaintiff must allege facts showing the defendant acted with a “sufficiently culpable state of 11 mind.” Wilson, 501 U.S. at 297 (internal quotations marks, emphasis, and citations omitted). 12 C. Analysis 13 1. Claim I - Defendant Doe 14 Plaintiff alleges that his Eighth Amendment rights were violated by defendant Doe due to 15 his failure to protect the plaintiff. (ECF No. 1 at 3.) Plaintiff has not alleged sufficient facts to 16 show that a serious risk of harm existed and that defendant Doe was aware of that risk. The 17 complaint states that plaintiff told defendant Doe that he had “safety concerns” and that he had 18 been attacked previously. (Id.) However, these facts do not show that defendant Doe knew a 19 substantial risk of harm existed. On their own, the facts that plaintiff was concerned for his safety 20 and had previously been attacked do not indicate there existed a substantial risk of harm. As 21 such, these facts are not sufficient to establish threat a substantial risk of harm existed or that 22 defendant Doe was had knowledge of a substantial risk of harm to the plaintiff. 23 Plaintiff also fails to allege sufficient facts to establish causation between the 24 constitutional violation and plaintiff’s harm. While the plaintiff does claim his cellmate 25 threatened him in front of defendant Doe, plaintiff also states that he refused to enter the cell. 26 This appears to indicate that plaintiff prevented any potential harm from defendant Doe’s failure 27 to protect the plaintiff from his cellmate. Plaintiff claims that he was later assaulted but does not 28 allege any facts which connect defendant Doe’s inaction on August 28, 2019 and plaintiff’s 1 eventual assault. Thus, plaintiff has failed to allege facts sufficient to establish causation between 2 the claimed Eighth Amendment rights violation and the harm he suffered. 3 Accordingly, plaintiff has failed to allege facts sufficient to state a claim for failure to 4 protect against defendant Doe. Plaintiff will be given the opportunity to amend his complaint to 5 state a claim. 6 2. Claim II - Defendants Chao and Allen 7 Plaintiff claims that defendants Chao and Allen were deliberately indifferent to the safety 8 of the plaintiff in violation of his Eighth Amendment rights. (Id. at 4.) Though plaintiff states 9 that this is a claim for “deliberate indifference,” this portion of the complaint focuses entirely on a 10 failure to protect claim. (See ECF No. 1 at 4.) As plaintiff must show that the defendants acted 11 with deliberate indifference to make a failure to protect claim, it appears most likely that plaintiff 12 intends to make an Eighth Amendment failure to protect claim against defendants Chao and 13 Allen. 14 Plaintiff fails to allege sufficient facts to state a claim for failure to protect against 15 defendants Chao and Allen. Plaintiff does not allege any facts that show defendants had any 16 knowledge that a substantial risk of harm to the plaintiff existed. Though plaintiff claims that he 17 asked defendants to intervene in a “potential battery” of the plaintiff (ECF No. 1 at 4), the 18 complaint does not provide any details about the potential battery or what information plaintiff 19 conveyed to the defendants. It is also unclear whether the assault discussed in this claim is 20 connected or separate from the assault alleged in the plaintiff’s claim against defendant Doe. 21 Without additional factual allegations, it is impossible to determine whether defendants knew a 22 substantial risk to the plaintiff existed. Thus, the facts alleged in the complaint are insufficient 23 show that the defendants acted with deliberate indifference in failing to protect the plaintiff. 24 Accordingly, plaintiff has failed to allege sufficient facts to state an Eighth Amendment 25 claim against defendants Chao and Allen. Plaintiff will be given an opportunity to amend his 26 complaint to state a claim. 27 //// 28 //// 1 AMENDING THE COMPLAINT 2 This court finds above that plaintiff’s complaint fails to state cognizable claims against 3 defendants Chao, Allen, and Doe. Plaintiff will be given leave to file an amended complaint to 4 state claims against defendants Chao, Allen, and Doe or any other defendant. Any amended 5 complaint must be complete in itself. The court cannot refer to a prior complaint to understand 6 the plaintiff’s claims. 7 If plaintiff chooses to file an amended complaint, he must address the problems with his 8 complaint that are explained above. In an amended complaint plaintiff must clearly identify each 9 defendant and the action that defendant took that violated his constitutional rights. The court is 10 not required to review exhibits to determine what plaintiff’s charging allegations are as to each 11 named defendant. If plaintiff wishes to add a claim, he must include it in the body of the 12 complaint. The charging allegations must be set forth in the amended complaint, so defendants 13 have fair notice of the claims plaintiff is presenting. That said, plaintiff need not provide every 14 detailed fact in support of his claims. Rather, plaintiff should provide a short, plain statement of 15 each claim. See Fed. R. Civ. P. 8(a). 16 Any amended complaint must show the federal court has jurisdiction, the action is brought 17 in the right place, and plaintiff is entitled to relief if plaintiff’s allegations are true. It must 18 contain a request for particular relief. Plaintiff must identify as a defendant only persons who 19 personally participated in a substantial way in depriving plaintiff of a federal constitutional right. 20 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (stating that a person subjects another to the 21 deprivation of a constitutional right if he does an act, participates in another’s act, or omits to 22 perform an act he is legally required to do that causes the alleged deprivation). “Vague and 23 conclusory allegations of official participation in civil rights violations are not sufficient.” Ivey v. 24 Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982) (citations omitted). 25 In an amended complaint, the allegations must be set forth in numbered paragraphs. Fed. 26 R. Civ. P. 10(b). Plaintiff may join multiple claims if they are all against a single defendant. Fed. 27 R. Civ. P. 18(a). If plaintiff has more than one claim based upon separate transactions or 28 occurrences, the claims must be set forth in separate paragraphs. Fed. R. Civ. P. 10(b). 1 The federal rules contemplate brevity. See Galbraith v. County of Santa Clara, 307 F.3d 2 1119, 1125 (9th Cir. 2002) (noting that “nearly all of the circuits have now disapproved any 3 heightened pleading standard in cases other than those governed by Rule 9(b)”); Fed. R. Civ. P. 4 84; cf. Rule 9(b) (setting forth rare exceptions to simplified pleading). Plaintiff’s claims must be 5 set forth in short and plain terms. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) 6 (“Rule 8(a) is the starting point of a simplified pleading system, which was adopted to focus 7 litigation on the merits of a claim.”); Fed. R. Civ. P. 8. 8 An amended complaint must be complete in itself, without reference to any prior pleading. 9 E.D. Cal. R. 220. Once plaintiff files an amended complaint, the original pleading is superseded. 10 By signing an amended complaint, plaintiff certifies he has made reasonable inquiry and has 11 evidentiary support for his allegations, and for violation of this rule, the court may impose 12 sanctions sufficient to deter repetition by plaintiff or others. Fed. R. Civ. P. 11. 13 USAGE OF “DOE” DEFENDANTS 14 The use of John Does in pleading practice is generally disfavored – but it is not prohibited. 15 See Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980); Wakefield v. Thompson, 177 F.3d 16 1160, 1163 (9th Cir. 1999); Lopes v. Viera, 543 F. Supp.2d 1149, 1152 (E.D. Cal. 2008). 17 Eventually, plaintiff may be afforded an opportunity for limited, preliminary discovery to identify 18 the names of the John Does “unless it is clear that discovery would not uncover their identities,” 19 Gillespie, 629 F.2d at 642 , and only after the court is satisfied he has exhausted every other 20 possibility of finding their names. Since by this order plaintiff will be granted the option to file 21 an amended complaint, he must use the time given to amend to do everything he can to supply the 22 names of the Doe defendant without further assistance from the court. He may seek extensions of 23 time for the filing of an amended complaint for that purpose if necessary. 24 Further, “John Doe” defendant liability must also be properly alleged. A plaintiff may use 25 “Doe” designations to refer to defendants whose names are unknown; however, he must number 26 them in the complaint, e.g., “John Doe 1,” “John Doe 2,” so that each numbered John Doe refers 27 to a specific person. If plaintiff chooses to file an amended complaint, he shall either name the 28 defendants involved or list the Doe defendants involved and describe what each did to violate his 1 | rights. If plaintiff can only list these defendants as John Doe, plaintiff should allege specific acts 2 | that each Doe defendant did, such as “John Doe 1 did X” and John Doe 2 did Y.” Alexander v. 3 | Tilton, No. 1:07-cv-0759 LJO DLB, 2009 WL 464486 , *5 (E.D. Cal. Feb. 24, 2009). 4 CONCLUSION 5 Accordingly, IT IS HEREBY ORDERED that: 6 1. Plaintiff's motion to proceed in forma pauperis (ECF No. 10) is granted. 7 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 8 || is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 9 | 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 10 | Director of the California Department of Corrections and Rehabilitation filed concurrently 11 | herewith. 12 3. Plaintiff's complaint (ECF No. 1) is dismissed with leave to amend. 13 4. Plaintiff is granted thirty days from the date of service of this order to file an amended 14 | complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil 15 | Procedure, and the Local Rules of Practice. The amended complaint must bear the docket 16 | number assigned to this case and must be labeled “First Amended Complaint.” 17 5. Failure to comply with this order will result in a recommendation that this action be 18 || dismissed. 19 | Dated: May 10, 2021 [21] ORAH BARNES UNITED STATES MAGISTRATE JUDGE [26] DB:14 27 || DB:1/Orders/Prisoner/Civil Rights/S/brow1734.scrn