Smith v. CDC State Prison

Filing 14

ORDER to SHOW CAUSE Why This Action Should Not Be Dismissed for Failure to State a Claim Upon Which Relief Could Be Granted, signed by Magistrate Judge Gary S. Austin on 4/15/11. 30-Day deadline. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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KENNETH A. SMITH,

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Plaintiff,

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v.
C/O GARCIA,

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Defendant.

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CASE NO. 1:10-cv-01791 GSA PC
ORDER TO SHOW CAUSE WHY THIS
ACTION SHOULD NOT BE DISMISSED FOR
FAILURE TO STATE A CLAIM UPON
WHICH RELIEF COULD BE GRANTED
RESPONSE DUE IN THIRTY DAYS

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I.

Screening Requirement

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

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rights action pursuant to 42 U.S.C. § 1983. Plaintiff has consented to magistrate judge jurisdiction

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pursuant to 28 U.S.C. § 636(c)(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 exceptions,”

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none of which applies to § 1983 actions. Swierkiewicz v. Sorema, N.A., 534 U.S. 506 (512) (2002).

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Pursuant to Rule 8(a), a complaint must contain “a short and plain statement of the claim showing

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that the pleader is entitled to relief . . .” Fed. R. Civ. P. 8(a). “Such a statement must simply give

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defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.”

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Swierkewicz, 534 U.S. at 512. Detailed factual allegations are not required, but “[t]hreadbare

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recitals of the elements of the cause of action, supported by mere conclusory statements, do not

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suffice.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (209), citing Bell Atlantic Corp. v. Twombly, 550

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U.S. 544, 555 (2007). “Plaintiff must set forth sufficient factual matter accepted as true, to ‘state a

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claim that is plausible on its face.’” Iqbal, 129 S.Ct. at 1949, quoting Twombly, 550 U.S. at 555.

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While factual allegations are accepted as true, legal conclusions are not. Iqbal, 129 S.Ct. at 1949.

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Although accepted as true, “[f]actual allegations must be [sufficient] to raise a right to relief

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above the speculative level.” Twombly, 550 U.S. at 555 (citations omitted). A plaintiff must set

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forth “the grounds of his entitlement to relief,’” which “requires more than labels and conclusions,

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and a formulaic recitation of the elements of a cause of action.” Id. at 555-56 (internal quotation

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marks and citations omitted). To adequately state a claim against a defendant, a plaintiff must set

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forth the legal and factual basis for his claim.

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II.

Plaintiff’s Claims

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This action proceeds on the April 11, 2011, first amended complaint, filed in response to an

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earlier order dismissing the original complaint and granting Plaintiff leave to file an amended

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complaint. In the original complaint, Plaintiff’s statement of claim consisted of a single paragraph

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of rambling narrative. Plaintiff made a vague reference to being attacked by another inmate, as well

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as a “false CDC 115." Plaintiff also mentioned two individuals not named as defendants.

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Plaintiff was advised that in order to state a claim under section 1983, a plaintiff must allege

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that (1) the defendant acted under color of state law and (2) the defendant deprived him of rights

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secured by the Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185

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(9th Cir. 2006). “A person deprives another of a constitutional right, where that person ‘does an

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affirmative act, participates in another’s affirmative acts, or omits to perform an act which [that
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person] is legally required to do that causes the deprivation of which complaint is made.’” Hydrick

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v. Hunter, 500 F.3d 978, 988 (9th Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir.

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1978)). “[T]he ‘requisite causal connection can be established not only by some kind of direct,

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personal participation in the deprivation, but also by setting in motion a series of acts by others

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which the actor knows or reasonably should know would cause others to inflict the constitutional

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injury.’” Id. (quoting Johnson at 743-44).

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In the first amended complaint, Plaintiff names as the sole Defendant C/O Garcia. Plaintiff

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alleges that on July 14, 2009, he told C/O Garcia that he had been battered by another inmate.

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Plaintiff identified the inmate and told Garcia that he was attacked by the inmate because he refused

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to join the inmate’s gang. Plaintiff alleges that C/O Garcia “accused me of fighting, which I did not

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do.” (Am. Compl. ¶ IV.) Plaintiff contends that he has a constitutional right not to join a prison

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gang.

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In the original complaint, Plaintiff failed to identify any individuals who deprived Plaintiff

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of a protected interest. Here, Plaintiff identifies C/O Garcia, but fails to allege any conduct on

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Garcia’s half that deprived Plaintiff of a protected interest. There is no authority for the proposition

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that Plaintiff has a right to remain free from association with a prison gang. C/O Garcia may only

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be held liable for the assault on Plaintiff under a theory of failure to protect Plaintiff.

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Prison officials have a duty to take reasonable steps to protect inmates from physical abuse.

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Hoptowit v. Ray, 682 F.2d at 1250-51; Farmer v. Brennan, 511 U.S. 825, 833 (1994). To establish

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a violation of this duty, the prisoner must establish that prison officials were “deliberately indifferent

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to a serious threat to the inmates’s safety.” Farmer v. Brennan, 511 U.S. at 834. The deliberate

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indifference standard involves an objective and a subjective prong. First, the alleged deprivation

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must be, in objective terms, “sufficiently serious.” Farmer v. Brennan, 511 U.S. at 834(citing Wilson

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v. Seiter, 501 U.S. 294, 298 (1991)). Second, the prison official must “know of and disregard an

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excessive risk to inmate health or safety.” Id. at 837.

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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 drawn
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that a substantial risk of serious harm exists, and the official must draw the inference.” Farmer, 511

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

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Here, Plaintiff has not alleged any facts indicating that Defendant Garcia knew of the

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particular danger to Plaintiff, and acted with deliberate indifference to that risk to Plaintiff’s safety.

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Plaintiff may not hold C/O Garcia liable on a conclusory allegation that he knew of the harm to

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Plaintiff. Plaintiff must allege facts from which an inference could be drawn by C/O Garcia that a

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substantial risk of serious harm existed, and Garcia was deliberately indifferent to that harm,

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resulting in injury to Plaintiff. Because Plaintiff has failed to allege facts indicating that C/O Garcia

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knew of the danger to Plaintiff and failed to prevent it, Plaintiff fails to state a claim for relief.

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III.

Conclusion and Order

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The Court has screened Plaintiff’s first amended complaint and finds that it does not state

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any claims upon which relief may be granted under section 1983. Plaintiff was provided with the

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opportunity to file an amended complaint curing the deficiencies identified by the Court in the earlier

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order. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987).

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Accordingly, based on the foregoing, it is HEREBY ORDERED that Plaintiff shall show

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cause, within thirty days of the date of service of this order, why this action should not be dismissed

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for failure to state a claim upon which relief could be granted. Plaintiff’s failure to do so will result

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in dismissal of this action.

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IT IS SO ORDERED.

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Dated:
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April 15, 2011

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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