Dixon v. Allison et al

Filing 15

ORDER DISMISSING 13 First Amended Complaint for Failure to State a Claim, WITH LEAVE TO AMEND; Thirty Day Deadline to File Second Amended Complaint signed by Magistrate Judge Gary S. Austin on 1/24/2014. (Attachments: # 1 Amended Complaint Form)(Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RICK DIXON,

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Plaintiff,

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1:10-cv-02365-GSA-PC
SECOND SCREENING ORDER

vs.

ORDER DISMISSING FIRST AMENDED
COMPLAINT FOR FAILURE TO STATE A
CLAIM, WITH LEAVE TO AMEND

K. ALLISON, et al.,

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Defendants.

THIRTY DAY DEADLINE TO FILE
SECOND AMENDED COMPLAINT

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I.

BACKGROUND
Rick Dixon (“Plaintiff”) is a state prisoner proceeding pro se with this civil rights action

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pursuant to 42 U.S.C. § 1983.

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December 20, 2010. (Doc. 1.)

Plaintiff filed the Complaint commencing this action on

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On January 20, 2011, Plaintiff consented to the jurisdiction of a Magistrate Judge in this

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action, and no other parties have made an appearance. (Doc. 7.) Therefore, pursuant to

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Appendix A(k)(4) of the Local Rules of the Eastern District of California, the undersigned shall

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conduct any and all proceedings in the case until such time as reassignment to a District Judge

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is required. Local Rule Appendix A(k)(3).

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The court screened the Complaint and entered an order on April 17, 2013, dismissing

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the Complaint for failure to state a claim, with leave to amend. (Doc. 12.) On May 20, 2013,

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Plaintiff filed the First Amended Complaint, which is now before the court for screening.

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(Doc. 13.)

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II.

SCREENING REQUIREMENT

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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).

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

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legally Afrivolous 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). ANotwithstanding 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. ' 1915(e)(2)(B)(ii).

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A complaint is required to contain Aa 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)(2). Detailed factual allegations

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are not required, but A[t]hreadbare recitals of the elements of a cause of action, supported by

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mere conclusory statements, do not suffice.@ Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct.

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1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955

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(2007)). While a plaintiff=s allegations are taken as true, courts Aare not required to indulge

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unwarranted inferences.@ Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009)

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(internal quotation marks and citation omitted). Plaintiff must set forth Asufficient factual

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matter, accepted as true, to >state a claim to relief that is plausible on its face.=@ Iqbal 556 U.S.

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at 678. While factual allegations are accepted as true, legal conclusions are not. Id. The mere

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possibility of misconduct falls short of meeting this plausibility standard. Id. at 678-79; Moss

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v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

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III.

SUMMARY OF FIRST AMENDED COMPLAINT

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Plaintiff is presently incarcerated at Centinela State Prison in Imperial, California. The

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events at issue in the First Amended Complaint allegedly occurred at the California Substance
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Abuse Treatment Facility (SATF) in Corcoran, California, when Plaintiff was incarcerated

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there. Plaintiff names as defendants Kathleen Allison (SATF Warden), T. P. Wan (SATF

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Associate Warden), Captain F. Vasquez, and Matthew Cate (California Department of

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Corrections and Rehabilitation (CDCR) Secretary) (collectively “Defendants”).

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factual allegations follow.

Plaintiff’s

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Following a riot at the prison, all non-white inmates who were not involved in the riot

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received different treatment than Plaintiff and the other thirty-nine white inmates. Black,

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Hispanic, and other non-white inmates each enjoyed regular programming, yard, canteen,

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visiting, full program activities, access to the law library, while the white inmates did not.

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Warden Allison participated in the program status conferences and made the final

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decision not to allow Plaintiff to be released to yard, work, or for other normal activities like all

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other Black, Asian, Hispanic, and others who were not involved in the incident. Defendants T.

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P. Wan and Vasquez also participated in the program decision making process. By virtue of his

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position as Secretary of the CDCR, Matthew Cate was indifferent to Plaintiff’s health and

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safety, and he engaged in the formulation of a policy or practice that discriminated against

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Plaintiff and a similar class of inmates – whites.

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Plaintiff was not allowed outdoor exercise and fresh air. The constant confinement to

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quarters caused Plaintiff to deteriorate mentally and physically. Plaintiff required surgery due

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to his condition caused by no exercise, no sunlight, improper diet, depression, and an eating

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disorder.

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Plaintiff requests monetary damages as relief.
IV.

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The Civil Rights Act under which this action was filed provides:

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Every person who, under color of [state law] . . . subjects, or
causes to be subjected, any citizen of the United States . . . to the
deprivation of any rights, privileges, or immunities secured by
the Constitution . . . shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for
redress.

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PLAINTIFF’S CLAIMS

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42 U.S.C. ' 1983. ASection 1983 . . . creates a cause of action for violations of the federal

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Constitution and laws.@ Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997)

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(internal quotations omitted). ATo the extent that the violation of a state law amounts to the

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deprivation of a state-created interest that reaches beyond that guaranteed by the federal

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Constitution, Section 1983 offers no redress.@ Id.

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To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted

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under color of state law and (2) the defendant deprived him of rights secured by the

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Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir.

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2006). AA person >subjects= another to the deprivation of a constitutional right, within the

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meaning of section 1983, if he does an affirmative act, participates in another=s affirmative acts,

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or omits to perform an act which he is legally required to do that causes the deprivation of

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which complaint is made.@ Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). AThe

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requisite causal connection can be established not only by some kind of direct, personal

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

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

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injury.@ Id. at 743-44.

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A.

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Plaintiff alleges that defendant Matthew Cate, Secretary of the CDCR, is liable “by

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virtue of his position,” and that defendant Cate “engaged in the formulation of a policy or

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practice that discriminated against Plaintiff and a similar class of inmates, Whites. . . .”

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Amd Cmp at 5:19-22.)

Supervisory Liability

(First

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Plaintiff is advised that liability may not be imposed on supervisory personnel under

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section 1983 on the theory of respondeat superior, as each defendant is only liable for his or her

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own misconduct. Iqbal, 556 U.S. at 678-79; Ewing v. City of Stockton, 588 F.3d 1218, 1235

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(9th Cir. 2009). A supervisor may be held liable only if he or she Aparticipated in or directed

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the violations, or knew of the violations and failed to act to prevent them.@ Taylor v. List, 880

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F.2d 1040, 1045 (9th Cir. 1989); accord Starr v. Baca, 652 F.3d 1202, 1205-06 (9th Cir. 2011);

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Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009); Preschooler II v. Clark County School
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Board of Trustees, 479 F.3d 1175, 1182 (9th Cir. 2007); Harris v. Roderick, 126 F.3d 1189,

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1204 (9th Cir. 1997). Therefore, to the extent that Plaintiff seeks to impose liability upon any

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of the defendants in their supervisory capacity or by virtue of their positions, Plaintiff fails to

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state a claim.

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Plaintiff’s allegation that defendant Cate formulated a discriminatory policy or practice,

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without more, fails to state a claim, because Plaintiff has not referred to any policy or practice

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that was formulated by defendant Cate.
Equal Protection – Discrimination Claim

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B.

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The Equal Protection Clause requires that persons who are similarly situated be treated

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alike. City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 439, 105 S.Ct. 3249

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(1985); Shakur v. Schriro, 514 F.3d 878, 891 (9th Cir. 2008). An equal protection claim may

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be established by showing that Defendants intentionally discriminated against Plaintiff based

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on his membership in a protected class, Comm. Concerning Cmty. Improvement v. City of

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Modesto, 583 F.3d 690, 702-03 (9th Cir. 2009); Serrano v. Francis, 345 F.3d 1071,1082 (9th

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Cir. 2003), Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001), or that similarly

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situated individuals were intentionally treated differently without a rational relationship to a

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legitimate state purpose, Engquist v. Oregon Department of Agr., 553 U.S. 591, 601-02, 128

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S.Ct. 2146 (2008); Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073

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(2000); Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008); North Pacifica LLC

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v. City of Pacifica, 526 F.3d 478, 486 (9th Cir. 2008).

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“Prisoners are protected under the Equal Protection Clause of the Fourteenth

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Amendment from invidious discrimination based on race.” Wolff v. McDonnell, 418 U.S. 539,

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556 (1974)(citation omitted). A prison classification based on race is “immediately suspect”

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and is subject to strict scrutiny. Johnson v. California, 543 U.S. 499, 505-506 (2005). Like

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race, ethnicity and national origin are suspect classifications.

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California's policy of temporarily segregating new inmates or transferees by race, ethnicity, and

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national origin for up to 60 days was an “express racial classification” triggering strict

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scrutiny). Strict scrutiny is required “in order to smoke out illegitimate uses of race by assuring
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Id. at 508 (holding that

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that government is pursuing a goal important enough to warrant such a highly suspect tool.” Id.

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at 1147 (internal quotation marks and alteration omitted).

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Plaintiff claims that Defendants treated Plaintiff, an involved white inmate, differently

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from others similarly situated, based upon race. However, Plaintiff has not alleged facts

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supporting this conclusion. The facts alleged indicate that similarly situated inmates, the

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inmates involved in the disturbance, were treated equally. There are no facts alleged indicating

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that involved inmates of a different race were treated differently. Plaintiff fails to allege any

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facts regarding the other involved inmates of other races in the same housing unit. Therefore,

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Plaintiff fails to allege facts sufficient to state a claim for violation of his rights to equal

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protection.
Adverse Conditions of Confinement – Eighth Amendment Claim

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C.

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The Eighth Amendment protects prisoners from inhumane methods of punishment and

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

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

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and 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, 112 S.Ct. 995 (1992) (citations and quotations omitted). In order to state a claim

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for violation of the Eighth Amendment, the plaintiff must allege facts sufficient to support a

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claim that prison officials knew of and disregarded a substantial risk of serious harm to the

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plaintiff. E.g., Farmer v. Brennan, 511 U.S. 825, 847, 114 S.Ct. 1970 (1994); Frost v. Agnos,

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152 F.3d 1124, 1128 (9th Cir. 1998).

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deprivations are critical in determining whether the conditions complained of are grave enough

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to form the basis of a viable Eighth Amendment claim. Johnson v. Lewis, 217 F.3d 726, 731

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(9th Cir. 2006). A[R]outine discomfort inherent in the prison setting@ does not rise to the level

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of a constitutional violation. Id. at 731.

The circumstances, nature, and duration of the

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Prison officials have a duty to ensure that prisoners are provided adequate shelter, food,

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clothing, sanitation, medical care, and personal safety, Johnson, 217 F.3d at 731 (quotation

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marks and citations omitted), but not every injury that a prisoner sustains while in prison
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represents a constitutional violation. Morgan, 465 F.3d at 1045 (quotation marks omitted). To

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maintain an Eighth Amendment claim, inmates must show deliberate indifference to a

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substantial risk of harm to their health or safety. E.g., Farmer, 511 U.S. at 847; Thomas v.

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Ponder, 611 F.3d 1144, 1151–52 (9th Cir. 2010); Foster v. Runnels, 554 F.3d 807, 812–14 (9th

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Cir. 2009); Morgan, 465 F.3d at 1045; Johnson, 217 F.3d at 731; Frost, 152 F.3d at 1128.

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Deliberate indifference is shown where a prison official “knows that inmates face a substantial

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risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.”

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Farmer, 511 U.S. at 847. Prison officials' duty under the Eighth Amendment is to ensure

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reasonable safety, and prison officials may be found free from liability if they responded

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reasonably to the risk, even if the harm ultimately was not averted. Farmer, 511 U.S. at 847

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(quotation marks and citations omitted).

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Inmates have a constitutional right to outdoor exercise under the Eighth Amendment.

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Thomas, 611 F.3d at 1151-52. No bright line exists in terms of how many hours of out-of-cell

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exercise per week satisfy the Constitution. Noble v. Adams, 646 F.3d 1138, 1139–41 (9th Cir.

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2011) (no outdoor exercise or other privileges for approximately sixteen months); Hebbe v.

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Pliler, 627 F.3d 338, 343–44 (9th Cir. 2010) (inmate permitted out of his cell for only eight

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hours a week and impermissibly required to choose between exercise and law library access

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during those hours); Thomas, 611 F.3d at 1151–52 (no out-of-cell exercise for thirteen

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months); Pierce v. Cnty. of Orange, 526 F.3d 1190, 1211–13 (9th Cir. 2008) (at least two days

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a week for at least two hours total per week sufficient exercise); LeMaire v. Maass, 12 F.3d

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1444, 1457–58 (9th Cir. 1993) (no out-of-cell exercise for most of a five-year period); Allen v.

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Sakai, 48 F.3d 1082, 1087 (9th Cir. 1994) (in-cell confinement for almost twenty-four hours a

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day and forty-five minutes of outside exercise per week for a six-week period); Spain v.

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Procunier, 600 F.2d 189, 199 (9th Cir. 1979) (fewer than five hours of exercise per week and

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no outdoor exercise for some inmates over a period of years).

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deprivations of exercise without medical effects are not sufficiently serious to support an

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Eighth Amendment claim, Thomas, 611 F.3d at 1155; Norwood, 591 F.3d 1062, 1070 (9th Cir.

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Short-term, temporary

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2010); May v. Baldwin, 109 F.3d 557, 565 (9th Cir. 1997); Allen, 48 F.3d at 1088, but the
deprivation of exercise for a period of six weeks can support a claim, Allen at 1088.

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Plaintiff alleges that he was confined to quarters and was not allowed outdoor exercise,

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fresh air, or an adequate diet, causing him to deteriorate mentally and physically, resulting in a

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need for surgery. Plaintiff has not alleged sufficient facts to state an Eighth Amendment claim.

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As Plaintiff was advised in the court’s prior screening order, detailed factual allegations are not

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required, but “Plaintiff must set forth sufficient factual matter accepted as true, to ‘state a claim

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that is plausible on its face,’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555), and

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

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level,” Twombly at 554. (Doc. 12 at 4:19-20, 5:5-6.) Plaintiff fails to allege how long he was

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confined to quarters, whether he was denied all outdoor exercise during his confinement, the

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extent of his physical and mental injuries, how his diet was inadequate, or how his confinement

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resulted in a need for surgery. Moreover, Plaintiff has not alleged facts demonstrating that any

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of the defendants acted or failed to act while knowing of, and deliberately disregarding, a

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substantial risk of serious harm to Plaintiff.

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Accordingly, Plaintiff fails to state a cognizable claim under the Eighth Amendment for

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denial of outdoor exercise and adequate diet. Plaintiff shall be granted leave to file an amended

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complaint.

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V.

CONCLUSION AND ORDER

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The Court finds that Plaintiff=s First Amended Complaint fails to state any claims upon

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which relief can be granted under ' 1983 against any of the defendants. In this action, the

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Court previously granted Plaintiff an opportunity to amend the complaint, with ample guidance

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by the Court. Plaintiff has now filed two complaints without alleging facts against any of the

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defendants which state a claim under ' 1983. However, in light of the fact that Plaintiff has

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brought a new claim in the First Amended Complaint for adverse conditions of confinement,

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the court shall allow Plaintiff another opportunity to amend the complaint. Under Rule 15(a) of

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the Federal Rules of Civil Procedure, leave to amend >shall be freely given when justice so

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requires.=@ Fed. R. Civ. P. 15(a).
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The amended complaint should be brief, but must state what each named defendant did

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that led to the deprivation of Plaintiff=s constitutional or other federal rights. Fed. R. Civ. P.

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8(a); Iqbal, 129 S.Ct. at 1948-49; Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). There

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is no respondeat superior liability, and each defendant is only liable for his or her own

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misconduct. Iqbal, 129 S.Ct. at 1948-49. Plaintiff must set forth Asufficient factual matter . . .

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to >state a claim that is plausible on its face.=@ Id. at 1949 (quoting Twombly, 550 U.S. at 555).

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Plaintiff must also demonstrate that each defendant personally participated in the deprivation of

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his rights. Jones, 297 F.3d at 934 (emphasis added).

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Plaintiff should note that although he has been given the opportunity to amend, it is not

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for the purpose of adding new defendants relating to issues arising after December 20, 2010. In

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addition, Plaintiff should take care to include only those claims that have been exhausted prior

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to the initiation of this suit on November 20, 2010.

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Plaintiff is reminded that an amended complaint supercedes the original complaint,

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Lacey v. Maricopa County, 693 F 3d. 896, 907 n.1 (9th Cir. 2012) (en banc), and it must be

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complete in itself without reference to the prior or superceded pleading, Local Rule 220.

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Therefore, in an amended complaint, as in an original complaint, each claim and the

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involvement of each defendant must be sufficiently alleged. The amended complaint should be

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clearly and boldly titled ASecond Amended Complaint,@ refer to the appropriate case number,

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and be an original signed under penalty of perjury.

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

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Plaintiff=s First Amended Complaint, filed on May 20, 2013, is dismissed for
failure to state a claim, with leave to amend;

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2.

The Clerk=s Office shall send Plaintiff a civil rights complaint form;

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3.

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

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a Second Amended Complaint curing the deficiencies identified by the Court in

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this order;

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4.

Plaintiff shall caption the amended complaint ASecond Amended Complaint@
and refer to the case number 1:10-cv-02365-GSA-PC; and
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5.

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If Plaintiff fails to comply with this order, this action will be dismissed for
failure to state a claim upon which relief may be granted.

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IT IS SO ORDERED.
Dated:

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January 24, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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