Dixon v. Gonzales et al

Filing 31

ORDER DISMISSING THIRD AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM WITH LEAVE TO AMEND (Doc. 27 ), Response Due Within Thirty Days, signed by Magistrate Judge Dennis L. Beck on 7/21/2011. Fourth Amended Complaint due by 8/25/2011 (Attachments: # 1 Amended Complaint Form)(Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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GEMMEL DIXON,

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Plaintiff,

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CASE NO. 1:09-CV-00172-OWW-DLB PC
ORDER DISMISSING THIRD AMENDED
COMPLAINT FOR FAILURE TO STATE A
CLAIM WITH LEAVE TO AMEND

v.
F. GONZALES, et al.,

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(DOC. 27)
Defendants.

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RESPONSE DUE WITHIN THIRTY DAYS
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Screening Order
I.

Background
Plaintiff Gemmel Dixon (“Plaintiff”) is a prisoner in the custody of the California

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Department of Corrections and Rehabilitation (“CDCR”). Plaintiff is proceeding pro se and in

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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this

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action by filing his complaint on January 28, 2009. Doc. 1. The Court screened Plaintiff’s

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complaint on May 8, 2009, and found that if failed to state a claim. Doc. 9. Plaintiff was

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provided with the opportunity to file an amended complaint. On June 2, 2009, Plaintiff filed his

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first amended complaint. Doc. 13. On October 21, 2009, the Court issued Findings and

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Recommendations recommending dismissal of certain claims. Doc. 16. The Magistrate Judge

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had found that Plaintiff stated cognizable Eighth Amendment claims as to Defendants Gonzales,

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Carrasco, Zanchi, Peterson, and Gentry for failure to protect, but Plaintiff failed to state any other

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claims. On December 21, 2009, the District Judge assigned to this action adopted the findings

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and recommendation. Doc. 18.
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On December 24, 2009, Plaintiff filed a motion to amend his civil rights complaint. Doc.

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19. On June 22, 2010, the District Judge granted Plaintiff’s motion. Doc. 22. Plaintiff filed his

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second amended complaint on June 22, 2010, prior to receiving the District Judge’s order.

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Plaintiff omitted his cognizable claims. Plaintiff then filed a motion on August 16, 2010,

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requesting clarification as to whether he had preserved his cognizable claims. On November 30,

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2010, the Court issued an order requiring Plaintiff to file a third amended complaint if he wished

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to preserve his cognizable claims. Plaintiff filed his third amended complaint on December 30,

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2010. Doc. 27.

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The Court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are

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legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or

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that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.

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§ 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion thereof, that may have been

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paid, the court shall dismiss the case at any time if the court determines that . . . the action or

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appeal . . . fails to state a claim upon which relief may be granted.” 28 U.S.C. §

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1915(e)(2)(B)(ii).

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A complaint must contain “a short and plain statement of the claim showing that the

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pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not

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required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing

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Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual

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matter, accepted as true, to ‘state a claim that is plausible on its face.’” Id. (quoting Twombly,

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550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id.

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II.

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Summary Of Third Amended Complaint
Plaintiff was incarcerated at California Correctional Institution (“CCI”) in Tehachapi,

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California, where the events giving rise to this action occurred. Plaintiff names the following as

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Defendants: F. Gonzales, warden of CCI; Facility 4A captain D. Zanchi; associate warden M.
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Carrasco; Facility 4A lieutenant J. Peterson; director of D.R.B. S. Hubbard; correctional

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counselor III of CSU S. Albritton; I.G.I. lieutenant Gentry; and correctional counselor II D.

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Cowee. Plaintiff also names E. Arnold, chief of the CSU, in the body of his third amended

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complaint.

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Plaintiff alleges the following. On November 20, 2007, Defendants failed to protect

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Plaintiff from harm. Pl.’s Third Am. Compl. 5.1 Plaintiff had been previously found guilty of

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involvement in a prison riot between black and Hispanic inmates. Id. Plaintiff received a

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secured housing unit (“SHU”) term of four months, and was released on September 29, 2007. Id.

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Plaintiff went before the Institutional Classification Committee (“ICC”) on October 24, 2007. Id.

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Plaintiff was cleared to be housed in the 4A general population maximum security yard. On

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November 17, 2007, CCI prison officials had received information of security concerns for

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Plaintiff, but failed to act. Id.

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On November 20, 2007, Plaintiff was attacked by two black inmates. Id. at 6.

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Defendant Gonzales as warden was liable for failing to follow departmental policies or

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procedures. Id. at 7. Defendant Carrasco as associate warden was responsible for failing to

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prevent serious harm to Plaintiff. Id. Defendant D. Zanchi was liable for failing to take any

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steps to prevent this attack. Id. Defendant Peterson was responsible for failing to take any steps

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to prevent the attack. Id. at 7-8. Defendant Gentry was in charge of the institutional gang

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investigation unit, but failed to follow departmental procedures to prevent this attack. Id. at 8.

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Defendant D. Cowee processed the confidential information, but failed to follow departmental

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procedures to prevent this attack. Id. Plaintiff contends that CCI Defendants knew of this

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impending attack and failed to act to prevent it. Id. at 50.

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Plaintiff contends that Defendant Carrasco attempted to turn Plaintiff as a snitch by

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offering Plaintiff placement in the sensitive needs yard (“SNY”). Id. at 51. Plaintiff refused. Id.

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The ICC then recommended Plaintiff be placed on indeterminate SHU term. Id. Plaintiff

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contends that Defendant Carrasco retaliated against Plaintiff for his refusal to become a snitch by

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The page numbering refers to the court’s docket.
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recommending him for indeterminate SHU. Id. The matter was referred to the Departmental

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Review Board (“DRB”) for housing placement. Id. at 52.

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On June 27, 2008, the DRB, which includes Defendants S. Hubbard, S. Albritton, and E.

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Arnold, elected to retain Plaintiff for an indeterminate SHU term, not for safety reasons but

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because of his assaultive and disruptive disciplinary history. Id. at 9-11. Plaintiff was not

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allowed to appeal this decision.

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Plaintiff alleges a violation of the Eighth Amendment, the First Amendment, the Due

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Process Clause of the Fourteenth Amendment, and the Equal Protection Clause of the Fourteenth

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Amendment. Plaintiff requests as relief declaratory judgment; a permanent injunction against

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CDCR or DRB to release Plaintiff from the SHU and restore all lost credits; compensatory and

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punitive damages; and costs of suit.

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III.

Analysis

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A.

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The Eighth Amendment protects prisoners from inhumane methods of punishment and

Eighth Amendment

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from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir.

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2006). Extreme deprivations are required to make out a conditions of confinement claim, and

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only those deprivations denying the minimal civilized measure of life’s necessities are

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sufficiently grave to form the basis of an Eighth Amendment violation. Hudson v. McMillian,

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503 U.S. 1, 9 (1992) (citations and quotations omitted). Prison officials have a duty to take

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reasonable steps to protect inmates from physical abuse. Hoptowit v. Ray, 682 F.2d 1237, 1250

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(9th Cir. 1982). In order to state a claim for violation of the Eighth Amendment, Plaintiff must

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allege facts sufficient to support a claim that officials knew of and disregarded a substantial risk

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of serious harm to him. E.g., Farmer v. Brennan, 511 U.S. 825, 837 (1994); Frost v. Agnos, 152

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F.3d 1124, 1128 (9th Cir. 1998). Mere negligence on the part of the official is not sufficient to

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establish liability, but rather, the official’s conduct must have been wanton. Farmer, 511 U.S. at

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835; Frost, 152 F.3d at 1128.

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Here, Plaintiff alleges that the CCI Defendants, F. Gonzales, D. Zanchi. M. Carrasco. J.
Peterson, Gentry, and D. Cowee knew that Plaintiff would face an imminent attack if he was
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released into the general population, but failed to do anything to prevent the attack. Under

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federal pleading standards, this is insufficient to state a claim. Plaintiff alleges only that

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Defendants had knowledge of the attack beforehand. That is a conclusory statement, and

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insufficient to state a claim. Iqbal, 129 S. Ct. at 1949. Plaintiff fails to plead facts which

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demonstrate that Defendants had knowledge of a substantial risk of harm to Plaintiff.

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B.

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Plaintiff alleges that Defendants Hubbard, Albritton, and Arnold, the DRB Defendants,

First Amendment and Due Process

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violated Plaintiff’s First Amendment rights by not allowing him to appeal their decision placing

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Plaintiff on indeterminate SHU. Plaintiff has a right to petition the government for redress

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pursuant to the First Amendment. However, Plaintiff does not appear to have had this right

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violated. Plaintiff was able to seek redress in court for his claims against the DRB Defendants by

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this action. Thus, Plaintiff fails to state a First Amendment claim.

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Plaintiff also contends a due process violation for not allowing Plaintiff to present

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evidence to dispute his placement in indeterminate SHU. Plaintiff fails to state a claim. Based on

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the submitted exhibits, the DRB’s actions were for purposes of Plaintiff’s classification status.

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Plaintiff fails to allege a liberty interest in his classification status. See Myron v. Terhune, 476

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F.3d 716, 718 (9th Cir. 2007). Plaintiff has failed to allege an atypical and significant hardship

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for the DRB’s imposition of an indeterminate SHU term. Sandin v. Conner, 515 U.S. 472, 483-

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84 (1995).

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Plaintiff also contends retaliation by Defendant Carrasco for placing Plaintiff in

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indeterminate SHU after he refused to accept placement in the SNY. Plaintiff fails to state a

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claim. Allegations of retaliation against a prisoner’s First Amendment rights to speech or to

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petition the government may support a § 1983 claim. Rizzo v. Dawson, 778 F.2d 527, 532 (9th

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Cir. 1985); see also Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989); Pratt v.

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Rowland, 65 F.3d 802, 807 (9th Cir. 1995). “Within the prison context, a viable claim of First

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Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some

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adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and that

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such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did
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not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-

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68 (9th Cir. 2005).

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in the SNY is not conduct that merits constitutional protection under the First Amendment.

Plaintiff fails to state a claim for retaliation. Refusing to accept placement

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C.

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Plaintiff alleges a violation of the Equal Protection Clause. Plaintiff fails to state a claim.

Equal Protection

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“The Equal Protection Clause . . . is essentially a direction that all persons similarly situated

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should be treated alike.” City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439

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(1985) (citing Plyler v. Doe, 457 U.S. 202, 216 (1982)). Plaintiff alleges no facts that remotely

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indicate he is being treated differently from other similarly situated persons.

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IV.

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Conclusion And Order
Plaintiff fails to state any cognizable claims against any Defendants. The Court will

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provide Plaintiff with an opportunity to file a fourth amended complaint curing the deficiencies

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identified by the Court in this order. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987).

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Plaintiff may not change the nature of this suit by adding new, unrelated claims in his amended

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complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints).

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If Plaintiff decides to amend, Plaintiff’s amended complaint should be brief, Fed. R. Civ.

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P. 8(a), but must state what each named defendant did that led to the deprivation of Plaintiff’s

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constitutional or other federal rights. Iqbal, 129 S. Ct. at 1949. Although accepted as true, the

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“[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level . . .

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.” Twombly, 550 U.S. at 555.

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Finally, Plaintiff is advised that an amended complaint supersedes the original complaint,

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Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567

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(9th Cir. 1987), and must be “complete in itself without reference to the prior or superseded

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pleading,” L. R. 220. Plaintiff is warned that “[a]ll causes of action alleged in an original

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complaint which are not alleged in an amended complaint are waived.” King, 814 F.2d at 567

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(citing to London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981)); accord Forsyth,

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114 F.3d at 1474.

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Accordingly, based on the foregoing, it is HEREBY ORDERED that:

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The Clerk’s Office shall send Plaintiff a complaint form;

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2.

Plaintiff’s third amended complaint is dismissed for failure to state a claim, with

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leave to file a fourth amended complaint within thirty (30) days from the date of

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service of this order;

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3.

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Plaintiff may not add any new and unrelated claims to his complaint, and any
attempt to do so may result in the complaint being stricken; and

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If Plaintiff fails to comply with this order, the Court will dismiss this action for
failure to obey a court order and failure to state a claim.

IT IS SO ORDERED.
Dated:

July 21, 2011

/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE

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