Sang v. Scribner et al

Filing 50

FINDINGS and RECOMMENDATIONS, signed by Magistrate Judge Dennis L. Beck on 9/1/10: Recommending that this action be DISMISSED in its entirety for failure to state a claim upon which relief may be granted re 46 Amended Prisoner Civil Rights Complaint filed by Thon Ngot Sang. Objections to F&R due by 10/7/2010. (Hellings, J)

(PC) Sang v. Scribner et al

Doc. 50

1 2 3 4 5 6 EASTERN DISTRICT OF CALIFORNIA 7 8 THON NGOT SANG, 9 10 v. Plaintiff, 1:07-CV-01759-OWW-DLB PC FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED (DOC. 46) / OBJECTIONS DUE WITHIN 30 DAYS

UNITED STATES DISTRICT COURT

11 A. K. SCRIBNER, et al., 12 13 14 15 16 I. 17 18 Background A. Procedural History Defendants.

Findings And Recommendations

Plaintiff Thon Ngot Sang ("Plaintiff") was a prisoner in the custody of the California

19 Department of Corrections and Rehabilitation. Plaintiff is proceeding pro se and in forma 20 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceed on 21 Plaintiff's first amended complaint, filed October 24, 2008, against Defendants Scribner, Flores, 22 Torres, and Ybarra for violation of the Eighth Amendment. On May 19, 2009, Defendants filed a 23 motion to dismiss Plaintiff's first amended complaint for failure to state a claim. On November 24 24, 2009, the Court dismissed Plaintiff's first amended complaint, but granted leave for Plaintiff 25 to file a second amended complaint. On December 28, 2009, Plaintiff filed his second amended 26 complaint, which is pending before the Court for screening. 27 28 B. Screening Requirement

The Court is required to screen complaints brought by prisoners seeking relief against a 1
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1 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 2 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 3 legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or 4 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 5 § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been 6 paid, the court shall dismiss the case at any time if the court determines that . . . the action or 7 appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 8 1915(e)(2)(B)(ii). 9 A complaint must contain "a short and plain statement of the claim showing that the

10 pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 11 required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere 12 conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing 13 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual 14 matter, accepted as true, to `state a claim that is plausible on its face.'" Id. (quoting Twombly, 15 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id. 16 II. 17 Summary of Second Amended Complaint Plaintiff was previously incarcerated at California Substance Abuse Treatment Facility

18 ("SATF") in Corcoran, California, where the events giving rise to this action occurred. Plaintiff 19 names as Defendants: correctional officers R. Flores and J. Torres, lieutenant O. A. Ybarra, and 20 warden A. K. Scribner. 21 Plaintiff alleges the following. On December 8, 2005, Plaintiff was suffering a severe

22 bout of depression which brought on mental distress and claustrophobic anxiety. Plaintiff 23 approached housing officers Defendants Torres and Flores to notify them of Plaintiff's 24 psychological state. Plaintiff is a prison mental health recipient. Due to Plaintiff's prior suicide 25 attempts and self-inflicted harm Plaintiff informed Defendants Torres and Flores that he need to 26 be placed on single cell status or Administrative Segregation ("ad seg") until seen by a mental 27 health care provider. 28 Defendant Torres found this reasoning insufficient. Plaintiff then stated that he felt 2

1 overwhelmingly stressed because of claustrophobia from overcrowding, and due to inability to 2 conform to certain political/ethnic rules which Plaintiff found unnecessary. Defendant Torres 3 expressed disbelief that Plaintiff as an Asian American had prison politics concerns. Defendant 4 Torres asked Plaintiff repeatedly if he had any enemy concerns, to which Plaintiff responded no. 5 Plaintiff was issued a CDC 114-D/lock up order which indicated that Plaintiff had enemy 6 concerns. 7 Defendant Lieutenant Ybarra then saw Plaintiff. Plaintiff denied having enemy concerns.

8 Defendant Ybarra expressed disbelief that Plaintiff had any prison politics concerns. Plaintiff 9 was placed in ad seg based on this false report. On December 14, 2005, Plaintiff was seen by the 10 weekly Classification Review Committee, and then re-housed back into the general population. 11 Plaintiff later discovered that the lock-up report had been typed by Asian inmate clerks. 12 On January 7, 2006, Plaintiff was brutally assaulted by two Asian inmates and suffered a

13 severe jaw fracture from a responding officer's baton blow. Plaintiff was then placed back into 14 ad seg for being the victim of an assault. Plaintiff alleges that Defendants acted with deliberate 15 disregard of Plaintiff's mental and psychological need for treatment by setting into play events 16 that led to the assault on Plaintiff. 17 18 III. 19 20 Plaintiff seeks as relief compensatory and punitive damages. Analysis A. Deliberate Indifference - Mental Health

Plaintiff contends that Defendants Ybarra and Scribner had a duty to provide Plaintiff

21 with appropriate mental health treatment, and their failure to do so violated his Eighth 22 Amendment rights.1 23 The Eighth Amendment protects prisoners from inhumane methods of punishment and

24 from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 25 2006). Extreme deprivations are required to make out a conditions of confinement claim, and 26 only those deprivations denying the minimal civilized measure of life's necessities are 27 28
Plaintiff's Fourteenth Amendment claim is disregarded, as the Eighth Amendment provides the explicit te x tu a l source for Plaintiff's rights. Patel v. Penman, 103 F.3d 868, 874 (9th Cir. 1996).
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1 sufficiently grave to form the basis of an Eighth Amendment violation. Hudson v. McMillian, 2 503 U.S. 1, 9 (1992) (citations and quotations omitted). In order to state a claim for violation of 3 the Eighth Amendment, Plaintiff must allege facts sufficient to support a claim that officials 4 knew of and disregarded a substantial risk of serious harm to him. E.g., Farmer v. Brennan, 511 5 U.S. 825, 837 (1994); Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). Mere negligence on 6 the part of the official is not sufficient to establish liability, but rather, the official's conduct must 7 have been wanton. Farmer, 511 U.S. at 835; Frost, 152 F.3d at 1128. 8 Plaintiff fails to allege sufficient facts to state a cognizable Eighth Amendment claim. It

9 appears that Plaintiff alleges Defendants Ybarra and Scribner had a duty as supervisory 10 defendants to provide Plaintiff with medical care. Under § 1983, liability may not be imposed on 11 supervisory personnel for the actions of their employees under a theory of respondeat superior. 12 When the named defendant holds a supervisorial position, the causal link between the defendant 13 and the claimed constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 14 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). To state a 15 claim for relief under § 1983 for supervisory liability, plaintiff must allege some facts indicating 16 that the defendant either: personally participated in the alleged deprivation of constitutional 17 rights; knew of the violations and failed to act to prevent them; or promulgated or "implemented 18 a policy so deficient that the policy `itself is a repudiation of constitutional rights' and is `the 19 moving force of the constitutional violation.'" Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 20 1989) (internal citations omitted); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Plaintiff 21 alleges no facts that indicate supervisory liability by Defendants Ybarra and Scribner, and thus 22 fails to state a cognizable Eighth Amendment claim for denial of mental health care.2 23 24 B. Deliberate Indifference - Failure To Protect

Plaintiff alleges Defendants Torres, Flores, Ybarra, and Scribner failed to protect Plaintiff

25 from harm. Plaintiff contends that Defendant Torres and Flores falsified the CDC 114-D 26 27 28
Plaintiff likewise fails to state a claim for supervisory liability against Defendants Scribner and Ybarra for fa ilu r e to train, supervise, or discipline. Plaintiff alleges no facts indicating anything other than liability based on a r e s p o n d e a t superior theory, which is not a cognizable claim under § 1983.
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1 document which stated that Plaintiff had enemy concerns. Plaintiff contends this caused Plaintiff 2 to be branded a snitch and subsequently attacked. As stated previously, in order to state a claim 3 for violation of the Eighth Amendment, Plaintiff must allege facts sufficient to support a claim 4 that officials knew of and disregarded a substantial risk of serious harm to him. Farmer, 511 5 U.S. at 837. Here, Plaintiff alleges that Defendants should have known that placing Plaintiff in 6 ad seg for enemy concerns would have resulted in Plaintiff being labeled a snitch and thus being 7 attacked. The undersigned finds this reasoning far too tenuous to state a cognizable Eighth 8 Amendment claim. Plaintiff's allegations are insufficient to demonstrate that Defendants knew 9 of and disregarded a risk to Plaintiff when they classified Plaintiff, erroneously, as having enemy 10 concerns. 11 Plaintiff's claims against Defendants Scribner and Ybarra for supervisory liability also

12 fail. Plaintiff fails to plead any facts that indicate Defendants Scribner and Ybarra personally 13 participated in the alleged deprivation of constitutional rights; knew of the violations and failed 14 to act to prevent them; or promulgated or "implemented a policy so deficient that the policy 15 `itself is a repudiation of constitutional rights' and is `the moving force of the constitutional 16 violation.'" Hansen, 885 F.2d at 646; Taylor, 880 F.2d at 1045. 17 IV. 18 Conclusion And Recommendation Plaintiff fails to state any claims against any Defendants under 42 U.S.C. § 1983.

19 Plaintiff was provided with the opportunity to file an amended complaint to cure the deficiencies 20 identified herein, but failed to do so. The undersigned recommends further leave to amend 21 should not be granted. Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). Based on the 22 foregoing, it is HEREBY RECOMMENDED that this action be DISMISSED in its entirety for 23 failure to state a claim upon which relief may be granted. 24 These Findings and Recommendations will be submitted to the United States District

25 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within thirty 26 (30) days after being served with these Findings and Recommendations, the parties may file 27 written objections with the court. The document should be captioned "Objections to Magistrate 28 Judge's Findings and Recommendations." The parties are advised that failure to file objections 5

1 within the specified time may waive the right to appeal the District Court's order. Martinez v. 2 Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 IT IS SO ORDERED. Dated: 3b142a

September 1, 2010

/s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE