Dixon v. Gonzales et al

Filing 36

FINDINGS And RECOMMENDATIONS Recommending Dismissal Of Action For Failure To State A Claim (Doc. 35 ), Objections Due Within Twenty-One Days, signed by Magistrate Judge Dennis L. Beck on 11/14/2011. F&R's referred to Judge Lawrence J. O'Neill; Objections to F&R due by 12/8/2011. (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-LJO-DLB PC
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF
ACTION FOR FAILURE TO STATE A
CLAIM

v.
F. GONZALES, et al.,

(DOC. 35)
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Defendants.

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/

OBJECTIONS DUE WITHIN TWENTY-ONE
DAYS

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Findings And Recommendations
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, pursuant to 28 U.S.C. § 1915A, and found that if failed to state a

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claim. Doc. 9. Plaintiff was provided with the opportunity to file an amended complaint. On

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June 2, 2009, Plaintiff filed his first amended complaint. Doc. 13. On October 21, 2009, the

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Court issued Findings and Recommendations recommending dismissal of certain claims. Doc.

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16. The Magistrate Judge had found that Plaintiff stated cognizable Eighth Amendment claims

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as to Defendants Gonzales, Carrasco, Zanchi, Peterson, and Gentry for failure to protect, but

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Plaintiff failed to state any other claims. On December 21, 2009, the District Judge assigned to

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this action adopted the findings 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. On July 21, 2011, the Court screened Plaintiff’s third amended complaint and

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found that it failed to state a claim. Doc. 31. Plaintiff was provided one more opportunity to

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amend. On September 7, 2011, Plaintiff filed his fourth amended complaint. Doc. 35.

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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.

Summary Of Fourth 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; associate warden M. Carrasco; Facility 4A captain D.

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Zanchi; Facility 4A lieutenant J. Peterson; correctional counselor II D. Cowee; director of CDCR

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S. Hubbard; E. Arnold, chief of the CSU; Institutional Gang Investigator (“IGI”) lieutenant

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Gentry; and correctional counselor S. Albritton.

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Plaintiff alleges the following. A confidential memorandum was authored by IGI at CCI
on November 17, 2007 and placed in Plaintiff’s central file. Fourth Am. Compl. 4. Plaintiff was

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recommended for transfer to another institution because of safety concerns. Id. Defendant F.

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Gonzales is responsible for the safety of inmates under his charge. Id. Defendant Gonzales

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failed to ensure that procedures were followed. Id. CDCR policy called for Plaintiff’s

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immediate removal from the general population to administrative segregation. Id.

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Defendant M. Carrasco failed to act within her authority to ensure that CCI staff executed

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procedures to prevent assaults such as the one that occurred to Plaintiff. Id. at 5. Defendant

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Zanchi was the active captain on November 17, 2007 when the information regarding an

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imminent attack on Plaintiff was placed into Plaintiff’s central file. Id. The assault occurred on

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November 20, 2007. Id. Defendant Zanchi took no reasonable steps to avert the attack. Id.

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Defendant Peterson, the active lieutenant, failed to ensure that CDCR procedures involving

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security were executed and enforced by staff under his authority. Id. Defendant Cowee

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demonstrated his knowledge of the threat of assault, but made no effort to warn Plaintiff of the

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threat or remove him. Id. at 5-6.

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As a result of Plaintiff being assaulted, Plaintiff was recommend by the Institutional

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Classification Committee (“ICC”) for an indeterminate Security Housing Unit (“SHU”) term for

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safety reasons. Id. at 7. Plaintiff refused to accept placement in the Sensitive Needs Yard and

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refused to become an informant. Id. Plaintiff’s classification status was referred to the

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Departmental Review Board (“DRB”). Id. On June 27, 2008, the DRB, composed of

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Defendants S. Hubbard, E. Arnold, and S. Albritton, reviewed Plaintiff’s case, and rejected the
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ICC’s rationale of placing Plaintiff in indeterminate SHU for safety reasons. Id. However, the

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DRB still imposed an indeterminate SHU term based on Plaintiff’s past violent and disruptive

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behavior. Id. Plaintiff complains that DRB Defendants denied Plaintiff due process, including

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notice of any impending disciplinary infractions, the right to call witnesses, and the right to be

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present at the DRB hearing. Id. at 7-8.

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Plaintiff requests declaratory relief, a permanent injunction ordering the restoration of all

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lost credit and barring Plaintiff being housed in CCI, compensatory and punitive damages, and

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legal fees, including attorney fees.

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III.

Analysis

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A.

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Plaintiff alleges that Defendants violated Plaintiff’s Eighth Amendment rights by failing

Failure To Protect

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to protect him from harm. The Eighth Amendment protects prisoners from inhumane methods of

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punishment and from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d

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1041, 1045 (9th Cir. 2006). Extreme deprivations are required to make out a conditions of

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confinement claim, and only those deprivations denying the minimal civilized measure of life’s

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necessities are sufficiently grave to form the basis of an Eighth Amendment violation. Hudson v.

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

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

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1250 (9th Cir. 1982). In order to state a claim for violation of the Eighth Amendment, Plaintiff

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

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

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

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

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

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Plaintiff fails to state an Eighth Amendment claim against Defendants F. Gonzales, M.

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Carrasco, D. Zanchi, and J. Peterson. Plaintiff alleges that these Defendants failed to ensure that

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proper procedure was followed to prevent this attack. Plaintiff appears to be alleging liability

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based on their supervisory roles. The term “supervisory liability,” loosely and commonly used by
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both courts and litigants alike, is a misnomer. Iqbal, 129 S. Ct. at 1949. “Government officials

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may not be held liable for the unconstitutional conduct of their subordinates under a theory of

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respondeat superior.” Id. at 1948. Rather, each government official, regardless of his or her

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title, is only liable for his or her own misconduct.

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When the named defendant holds a supervisorial position, the causal link between the

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defendant and the claimed constitutional violation must be specifically alleged. See Fayle v.

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Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir.

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1978). To state a claim for relief under § 1983 for supervisory liability, plaintiff must allege

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some facts indicating that the defendant either: personally participated in the alleged deprivation

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of constitutional rights; knew of the violations and failed to act to prevent them; or promulgated

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or “implemented a policy so deficient that the policy ‘itself is a repudiation of constitutional

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rights’ and is ‘the moving force of the constitutional violation.’” Hansen v. Black, 885 F.2d 642,

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646 (9th Cir. 1989) (internal citations omitted); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.

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1989).

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Plaintiff alleges no facts that indicate Defendants Gonzales, Carrasco, Zanchi, and

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Peterson personally participated in the alleged constitutional violation, knew of violations and

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failed to act, or implemented a policy so deficient that the policy itself is the moving force of the

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violation. Hansen, 885 F.2d at 646; Taylor, 880 F.2d at 1045. Plaintiff alleges no facts that

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demonstrate Defendants Gonzales, Carrasco, Zanchi, and Peterson knew of an impending attack

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against Plaintiff. Mere placement of a confidential memo in Plaintiff’s central file does not

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demonstrate that these Defendants knew of a substantial risk of serious harm.

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Plaintiff fails to state an Eighth Amendment claim against Defendant D. Cowee. Plaintiff

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alleges that Defendant Cowee was aware of the potential risk of serious harm to Plaintiff based

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on his signature on the confidential information disclosure form. Fourth Am. Compl., Ex. A.

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However, the signature is dated December 21, 2007, a month after Plaintiff was allegedly attack.

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This fails to demonstrate that Defendant Cowee knew of and disregarded a substantial risk of

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serious harm to Plaintiff.

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Plaintiff fails to state an Eighth Amendment claim against Defendant Gentry. Plaintiff
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alleges no facts that demonstrate Defendant Gentry violated Plaintiff’s constitutional rights. See

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Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (“A person subjects another to the

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deprivation of a constitutional right, within the meaning of section 1983, if he does an

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affirmative act, participates in another's affirmative acts, or omits to perform an act which he is

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legally required to do that causes the deprivation of which complaint is made.”) (internal

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quotations omitted).

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B.

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Plaintiff alleges that Defendants Hubbard, Arnold, and Albritton violated Plaintiff’s due

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Due Process

process rights. Based on the submitted exhibits, the DRB’s actions were for purposes of

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Plaintiff’s classification status. Plaintiff fails to allege a liberty interest in his classification

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status. See Myron v. Terhune, 476 F.3d 716, 718 (9th Cir. 2007). Plaintiff has failed to allege an

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atypical and significant hardship for the DRB’s imposition of an indeterminate SHU term, and

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thus has failed to allege a liberty interest. The Due Process Clause protects prisoners from being

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deprived of liberty without due process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974).

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In order to state a cause of action for deprivation of procedural due process, a plaintiff must first

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establish the existence of a liberty interest for which the protection is sought. Id. Liberty

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interests may arise from the Due Process Clause itself or from state law. Hewitt v. Helms, 459

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U.S. 460, 466-68 (1983). The Due Process Clause itself does not confer on inmates a liberty

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interest in being confined in the general prison population instead of administrative segregation.

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See id. With respect to liberty interests arising from state law, the existence of a liberty interest

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created by prison regulations is determined by focusing on the nature of the deprivation. Sandin

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v. Conner, 515 U.S. 472, 481-84 (1995). Liberty interests created by prison regulations are

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limited to freedom from restraint which “imposes atypical and significant hardship on the inmate

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in relation to the ordinary incidents of prison life.” Id. at 484.

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Even assuming Plaintiff alleged a liberty interest, Plaintiff would not state a claim.

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Placement in indeterminate SHU for housing purposes, not disciplinary, is treated as similar to

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placement in administrative segregation. See Bruce v. Ylst, 351 F.3d 1283, 1287 (9th Cir. 2003)

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(in context of gang validation, finding of indeterminate SHU placement for housing purposes is
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administrative discretion); Toussaint v. McCarthy, 801 F.2d 1080, 1100 (9th Cir. 1986) (due

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process for administrative segregation placement requires only informal nonadversary hearing

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within a reasonable time after prisoner is segregated, informing the prisoner of the reasons for

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considering segregation, and allowing prisoner to present his views), overruled in part on other

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grounds, Sandin, 515 U.S. 472. The prisoner is not entitled to “detailed written notice of

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charges, representation of counsel or counsel-substitute, an opportunity to present witnesses, or a

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written decision describing the reasons for placing the prisoner in administrative segregation.” Id.

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at 1100-01 (citations omitted).

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Here, based on the submitted exhibits, Plaintiff was provided an opportunity to present

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his views regarding indeterminate SHU term. After the DRB Defendants approved an

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indeterminate SHU term due to Plaintiff’s prior disruptive disciplinary history, Plaintiff’s

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classification status was referred back to ICC for a decision. Ex. B, p.4, dated August 14, 2008.

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The ICC then chose to adopt the DRB’s decision. Plaintiff was present at this initial SHU review

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and expressed his disagreement with the DRB’s decision. The Court finds that Plaintiff was

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provided a hearing, informed of the reasons for the indeterminate SHU term, and was allowed to

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present his views, as required under Toussaint. Assuming that Plaintiff has a liberty interest

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regarding an indeterminate SHU term, Plaintiff received the required due process. Plaintiff fails

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to state a due process claim against Defendants Hubbard, Arnold, and Albritton.

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IV.

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Conclusion And Recommendation
Plaintiff has failed to state a claim against any Defendants. Plaintiff has had several

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opportunities to amend his complaint to state a claim, but is unable to do so. The Court does not

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find that Plaintiff will able to cure the deficiencies of his complaint. Further leave to amend will

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not be granted. See Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc).

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Based on the foregoing, it is HEREBY RECOMMENDED that:

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This action be dismissed with prejudice for failure to state a claim upon which
relief may be granted;

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This dismissal should subject Plaintiff to the “three strikes” provision of 28
U.S.C. § 1915(g).
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These Findings and Recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one

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(21) days after being served with these Findings and Recommendations, Plaintiff may file

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written objections with the court. Such a document should be captioned “Objections to

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Magistrate Judge's Findings and Recommendations.” Plaintiff is advised that failure to file

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objections within the specified time may waive the right to appeal the District Court's order.

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Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:
3b142a

November 14, 2011

/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE

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