Harper v. Schwarzenegger et al

Filing 11

ORDER DISMISSING COMPLAINT, WITH LEAVE to FILE AMENDED COMPLAINT Within Thirty Days, signed by Magistrate Judge Gary S. Austin on 4/12/2012. Amended Complaint Due Within Thirty Days. (Attachments: # 1 Amended complaint form) (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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J. S. HARPER,

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Plaintiff,

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CASE NO. 1:10-cv-00926 LJO GSA PC
ORDER DISMISSING COMPLAINT, WITH
LEAVE TO FILE AMENDED COMPLAINT
WITHIN THIRTY DAYS

v.
MATTHEW CATE, et al.,

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(ECF No. 1)

Defendants.
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Screening Order
I.

Screening Requirement

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action

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pursuant to 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant

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to 28 U.S.C. § 636(b)(1).

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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 legally

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

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).

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“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall

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dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a

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claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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“Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited

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exceptions,” none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S.

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506, 512 (2002); Fed. R. Civ. P. 8(a). Pursuant to Rule 8(a), a complaint must contain “a short and

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plain statement of the claim showing that the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a).

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“Such a statement must simply give the defendant fair notice of what the plaintiff’s claim is and the

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grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512. However, “the liberal pleading

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standard . . . applies only to a plaintiff’s factual allegations.” Neitze v. Williams, 490 U.S. 319, 330

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n.9 (1989). “[A] liberal interpretation of a civil rights complaint may not supply essential elements

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of the claim that were not initially pled.” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257

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(9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).

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II.

Plaintiff’s Claims

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Plaintiff, an inmate in the custody of the California Department of Corrections and

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Rehabilitation (CDCR) at Kern Valley State Prison, brings this civil right action against correctional

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officials employed by the CDCR at Pleasant Valley State Prison (PVSP). The events that give rise

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to this lawsuit occurred while Plaintiff was housed at PVSP. Plaintiff names the following

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individual defendants: former Governor Schwarzenegger; CDCR Secretary Matthew Cate; CDCR

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Director Scott Kernan; PVSP Warden James Yates; Assistant Warden J. Ahlin; Chief Deputy

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Warden Spearman; Facility Captain D. Allan; Lieutenant. L. Lupkin; Lt. R. Corley; Sergeant B.

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Martinez; Correctional Counselor P. Ortiz. Plaintiff claims that defendants failed to protect him

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from serious harm, in violation of the Eighth Amendment. Specifically, Plaintiff alleges that

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defendants housed Plaintiff with an inmate with a history of sexually assaulting other inmates. As

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a result, Plaintiff was sexually assaulted by his cellmate.

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A.

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“The treatment a prisoner receives in prison and the conditions under which he is confined

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are subject to scrutiny under the Eighth Amendment.” Farmer v. Brennan, 511 U.S. 825, 832 (1994)

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(citing Helling v. McKinney, 509 U.S. 25, 31 (1993)). Prison officials have a duty to take reasonable

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steps to protect inmates from physical abuse. Farmer, 511 U.S. at 833; Hoptowit v. Ray, 682 F.2d

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1237, 1250-51 (9th Cir. 1982). To establish a violation of this duty, the prisoner must establish that

Failure to Protect

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prison officials were “deliberately indifferent to a serious threat to the inmates’s safety.” Farmer,

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at 834. The question under the Eighth Amendment is whether prison officials, acting with deliberate

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indifference, exposed a prisoner to a sufficiently substantial ‘risk of serious damage to his future

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health ... .’” Id., at 843 (citing Helling, 509 U.S. at 35). The Supreme Court has explained that

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“deliberate indifference entails something more than mere negligence ... [but] something less than

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acts or omissions for the very purpose of causing harm or with the knowledge that harm will result.”

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Id., at 835. The Court defined this “deliberate indifference” standard as equal to “recklessness,” in

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which “a person disregards a risk of harm of which he is aware.” Id., at 836-37.

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The deliberate indifference standard involves both an objective and a subjective prong. First,

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the alleged deprivation must be, in objective terms, “sufficiently serious.” Id. at 834. Second,

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subjectively, the prison official must “know of and disregard an excessive risk to inmate health or

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safety.” Id. at 837; Anderson v. County of Kern, 45 F.3d 1310, 1313 (9th Cir. 1995)

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Thus, in order to state a cognizable claim against prison officials for failure to provide for

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a prisoner’s safety/protection, a prisoner must allege (and eventually prove): (1) a sufficiently serious

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risk of harm (either current or future); (2) that was caused by the defendant(s); and (3) that the

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defendants knew that their action(s) exposed the prisoner to that serious risk of harm.

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As to each individual defendant, Plaintiff alleges generally that they “conspired to deprive

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plaintiff of federal rights guaranteed by the constitution” and “failed to provide personal safety and

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protection to plaintiff against atrocities of cruel and unusual punishments.” Plaintiff alleges that on

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June 4, 2009, while in classification, he “made all defendants aware” that he was an “easy target”

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for sexual assaults. Plaintiff alleges that while in classification, “a C/O” told Plaintiff that another

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inmate had requested Plaintiff as a cellmate. Plaintiff was unaware that the inmate had a history of

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sexually assaulting other inmates.

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Plaintiff alleges that on the same evening, June 4, 2009, he was forcibly sexually assaulted

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by the inmate. After the assault, Plaintiff’s cellmate informed him that he had done this twice before.

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The next day, Plaintiff informed C/O Pruett (not named as a defendant) about the assault. Plaintiff

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was transported to an outside hospital for a sexual assault examination, and returned to the prison.

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Although Plaintiff has alleged that he suffered objectively serious harm, he has failed to

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allege facts to support his conclusory allegations that all of the defendants knew of the risk to

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Plaintiff and disregarded the risk. The facts alleged indicate that, at classification, Plaintiff advised

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“them” that he was vulnerable to sexual assault, and that he was willing to accept any cellmate, as

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long as they were not a sexual predator. Plaintiff alleges no facts to support his conclusion that any

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of the defendants knew that Plaintiff’s cellmate was a particular risk. That he had previously

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sexually assaulted other inmates does not, of itself, subject defendants to liability. Plaintiff does not

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allege any facts that would put any of the defendants on notice that the inmate was a predator.

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To demonstrate that a prison official was deliberately indifferent to a serious threat to an

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inmate’s safety, the prisoner must show that “the official [knew] of and disregarded an excessive risk

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to inmate . . . safety; the official must both be aware of facts from which the inference could be

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drawn that a substantial risk of serious harm exists, and [the official] must draw the inference.”

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Farmer, 511 U.S. at 837; see also Simmons v. Navajo County, 609 F.3d 1011, 1017 (9th Cir. 2010);

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Gibson v. County of Washoe, Nev., 290 F.3d 1175, 1187-88 (9th Cir. 2002); Jeffers v. Gomez, 267

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F.3d 895, 913 (9th Cir. 2001)(per curiam); Anderson v. County of Kern, 45 F.3d 1310, 1313 (9th Cir.

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1995).

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Here, Plaintiff has alleged that he advised unspecified individuals at classification that he was

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vulnerable to sexual assault. He fails to allege any other facts that would put any of the named

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defendants on notice of the specific danger to Plaintiff. To establish liability under 42 U.S.C. §

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1983, “a plaintiff must plead that each government-official defendant, through the official’s own

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individual actions, has violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 673 (2009).

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Even under a “deliberate indifference” theory of individual liability, Plaintiff must still allege

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sufficient facts to plausibly establish the defendant’s “knowledge of” and “acquiescence in” the

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unconstitutional conduct of his subordinates. Starr v. Baca, 652 F.3d 1202, 1206-07 (9th Cir. 2011).

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Plaintiff’s “bald” and “conclusory” allegations are insufficient to establish individual liability under

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42 U.S.C. § 1983. See Iqbal, 556 U.S. at 569-72.

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The Court finds Plaintiff’s allegations to be vague. Plaintiff sets forth conclusory allegations

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that each of the defendants knew of the particular danger to Plaintiff, but fails to allege facts
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indicating that each individual defendant knew or should have know of the danger to Plaintiff. The

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complaint must therefore be dismissed. Plaintiff will, however, be granted an opportunity to file an

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amended complaint that sets forth more specific factual allegations. Plaintiff need not, however, set

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forth legal arguments in support of his claims. In order to hold an individual defendant liable,

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Plaintiff must name the individual defendant, describe where that defendant is employed and in what

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capacity, and explain how that defendant acted under color of state law. Plaintiff should state

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clearly, in his or her own words, what happened. Plaintiff must describe what each defendant, by

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name, did to violate the particular right described by Plaintiff. Plaintiff has failed to do so here.

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III.

Conclusion and Order

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The Court has screened Plaintiff’s complaint and finds that it does not state any claims upon

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which relief may be granted under section 1983. The Court will provide Plaintiff with the

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opportunity to file an amended complaint curing the deficiencies identified by the Court in this order.

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Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff is cautioned that he may not

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change the nature of this suit by adding new, unrelated claims in his amended complaint. George,

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507 F.3d at 607 (no “buckshot” complaints).

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Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but must state what each

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named defendant did that led to the deprivation of Plaintiff’s constitutional or other federal rights,

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Hydrick, 500 F.3d at 987-88. Although accepted as true, the “[f]actual allegations must be

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[sufficient] to raise a right to relief above the speculative level . . . .” Bell Atlantic Corp. v.

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Twombly, 550 U.S. 544, 554 (2007) (citations omitted).

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Finally, Plaintiff is advised that an amended complaint supercedes 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 superceded

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pleading,” Local Rule 15-220. 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 (citing

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to London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981)); accord Forsyth, 114 F.3d at

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1474.

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Accordingly, based on the foregoing, it is HEREBY ORDERED that:
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Plaintiff’s complaint is dismissed, with leave to amend, for failure to state a claim;

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

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Within thirty (30) days from the date of service of this order, Plaintiff shall file an

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amended complaint;

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Plaintiff may not add any new, unrelated claims to this action via his amended

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complaint and any attempt to do so will result in an order striking the amended

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complaint; and

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5.

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If Plaintiff fails to file an amended complaint, the Court will recommend that this
action be dismissed, with prejudice, for failure to state a claim.

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IT IS SO ORDERED.

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Dated:
6i0kij

April 12, 2012

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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