Terry v. Brown et al
Filing
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FINDINGS and RECOMMENDATIONS Recommending Dismissal of 14 Action, with Prejudice, for Failure to State a Claim under Section 1983 signed by Magistrate Judge Sheila K. Oberto on 11/06/2012. Referred to Judge Ishii; Objections to F&R due by 12/10/2012. (Flores, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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GERALD MICHEAL TERRY,
CASE NO. 1:11-cv-00186-AWI-SKO PC
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Plaintiff,
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF ACTION,
WITH PREJUDICE, FOR FAILURE TO
STATE A CLAIM UNDER SECTION 1983
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v.
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D. BROWN,
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(Doc. 14)
Defendant.
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THIRTY-DAY DEADLINE
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Findings and Recommendations Following Screening of Amended Complaint
I.
Screening Requirement and Standard
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Plaintiff Gerald Micheal Terry, a state prisoner proceeding pro se and in forma pauperis, filed
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this civil rights action pursuant to 42 U.S.C. § 1983 on February 2, 2011. On February 21, 2012, the
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Court screened Plaintiff’s complaint and dismissed it, with leave to amend, for failure to state a
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claim under section 1983. After obtaining an extension of time, Plaintiff filed an amended complaint
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on April 27, 2012.
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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 an 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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A complaint must contain “a short and plain statement of the claim showing that the pleader
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is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but
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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
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do not suffice,” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937 (2009) (citing Bell Atlantic
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Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)), and courts “are not required to
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indulge 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). While factual allegations are accepted as true, legal
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conclusions are not. Iqbal, 556 U.S. at 678.
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While prisoners proceeding pro se in civil rights actions are still entitled to have their
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pleadings liberally construed and to have any doubt resolved in their favor, the pleading standard is
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now higher, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted), and to survive
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screening, Plaintiff’s claims must be facially plausible, which requires sufficient factual detail to
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allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged,
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Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret Service, 572 F.3d 962, 969
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(9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is not sufficient, and mere
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consistency with liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678
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(quotation marks omitted); Moss, 572 F.3d at 969.
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II.
Discussion
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A.
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Plaintiff is incarcerated at Kern Valley State Prison in Delano, California and he brings this
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action against Correctional Counselor D. Brown for assigning him an “R” suffix, a designation for
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sex offenders which Plaintiff alleges endangers his life.
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B.
Allegations
Findings
1.
Eighth Amendment Claim
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The Eighth Amendment’s prohibition against cruel and unusual punishment protects
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prisoners not only from inhumane methods of punishment but also from inhumane conditions of
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confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006) (citing Farmer v. Brennan,
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511 U.S. 825, 847, 114 S.Ct. 1970 (1994) and Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct.
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2392 (1981)) (quotation marks omitted). While conditions of confinement may be, and often are,
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restrictive and harsh, they must not involve the wanton and unnecessary infliction of pain. Morgan,
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465 F.3d at 1045 (citing Rhodes, 452 U.S. at 347) (quotation marks omitted). Thus, conditions
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which are devoid of legitimate penological purpose or contrary to evolving standards of decency that
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mark the progress of a maturing society violate the Eighth Amendment. Morgan, 465 F.3d at 1045
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(quotation marks and citations omitted); Hope v. Pelzer, 536 U.S. 730, 737, 122 S.Ct. 2508 (2002);
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Rhodes, 452 U.S. at 346.
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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 v. Lewis, 217 F.3d 726, 731 (9th Cir.
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2000) (quotation marks and citations omitted), but not every injury that a prisoner sustains while in
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prison represents a constitutional violation, Morgan, 465 F.3d at 1045 (quotation marks omitted).
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To maintain an Eighth Amendment claim, a prisoner must show that prison officials were
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deliberately indifferent to a substantial risk of harm to his health or safety. E.g., Farmer, 511 U.S.
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at 847; Thomas v. Ponder, 611 F.3d 1144, 1151-52 (9th Cir. 2010); Foster v. Runnels, 554 F.3d 807,
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812-14 (9th Cir. 2009); Morgan, 465 F.3d at 1045; Johnson, 217 F.3d at 731; Frost v. Agnos, 152
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F.3d 1124, 1128 (9th Cir. 1998).
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Plaintiff alleges that the assessment of the “R” suffix by Defendant Brown endangers his
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safety because he belongs to the Suerños, a prison gang. However, Plaintiff was placed in
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administrative segregation due to safety concerns and he was thereafter given the choice of either
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the sensitive needs yard (SNY) or the security housing unit (SHU). (Amend. Comp., pp. 3-4.)
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While the Court recognizes that sex offenses are not viewed favorably in prison and the
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assignment of an “R” suffix is therefore not desirable, it is nevertheless merely a classification
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decision which, in and of itself, does not violate the Eighth Amendment. See Morgan, 465 F.3d at
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1045. Here, Plaintiff is not alleging the existence of a substantial risk of harm to his safety which
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is or was being ignored by prison officials; Plaintiff was assigned housing to accommodate any
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safety concerns arising out of the assignment of the “R” suffix. Plaintiff is instead alleging a claim
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against the individual who assessed the classification arising out of the classification itself. Despite
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Plaintiff’s understandable displeasure with the classification, there are no facts pled which support
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an Eighth Amendment claim. See id.
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2.
Fourteenth Amendment Due Process Claim
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As in his original complaint, Plaintiff alleges only an Eighth Amendment claim arising out
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of a threat to his safety, but to the extent that his amended complaint can be read to also plead a due
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process claim, Plaintiff has not alleged any facts supporting the existence of a protected liberty
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interest in remaining free from the “R” suffix designation. Wilkinson v. Austin, 545 U.S. 209, 221,
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125 S.Ct. 2384 (2005); Sandin v. Conner, 515 U.S. 472, 481-84, 115 S.Ct. 2293 (1995); cf. Neal v.
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Shimoda, 131 F.3d 818, 827-30 (9th Cir. 1997) (finding a liberty interest in remaining free from sex
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offender status where the designation was accompanied by a requirement that inmates complete an
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extensive treatment program as a precondition to parole eligibility). Plaintiff’s mere disagreement
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with the classification decision does not support a due process claim, and there are no facts pled
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which support the existence of a protected liberty in remaining free from an “R” suffix classification.
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Wilkinson, 545 U.S. at 221-23.
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III.
Conclusion and Recommendation
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The Court has screened Plaintiff’s amended complaint and finds that it fails to state a claim
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under section 1983. Based on the nature of the deficiencies and the Court’s previous screening
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order, the Court finds that further leave to amend is not warranted. Lopez v. Smith, 203 F.3d 1122,
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1130 (9th Cir. 2000); Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987).
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Accordingly, the Court HEREBY RECOMMENDS that this action be dismissed, with
prejudice, for failure to state a claim under section 1983.
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These Findings and Recommendations will be submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30)
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days after being served with these Findings and Recommendations, Plaintiff may file written
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objections with the Court. The document should be captioned “Objections to Magistrate Judge’s
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Findings and Recommendations.” Plaintiff is advised that failure to file objections within the
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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d
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1153 (9th Cir. 1991).
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IT IS SO ORDERED.
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Dated:
ie14hj
November 6, 2012
/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE
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