Terry v. Brown et al

Filing 15

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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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 GERALD MICHEAL TERRY, CASE NO. 1:11-cv-00186-AWI-SKO PC 8 Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM UNDER SECTION 1983 9 v. 10 D. BROWN, 11 (Doc. 14) Defendant. 12 THIRTY-DAY DEADLINE / 13 14 15 Findings and Recommendations Following Screening of Amended Complaint I. Screening Requirement and Standard 16 Plaintiff Gerald Micheal Terry, a state prisoner proceeding pro se and in forma pauperis, filed 17 this civil rights action pursuant to 42 U.S.C. § 1983 on February 2, 2011. On February 21, 2012, the 18 Court screened Plaintiff’s complaint and dismissed it, with leave to amend, for failure to state a 19 claim under section 1983. After obtaining an extension of time, Plaintiff filed an amended complaint 20 on April 27, 2012. 21 The Court is required to screen complaints brought by prisoners seeking relief against a 22 governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 23 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 24 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 25 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 26 “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall 27 dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a 28 claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 1 1 A complaint must contain “a short and plain statement of the claim showing that the pleader 2 is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 3 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 4 do not suffice,” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937 (2009) (citing Bell Atlantic 5 Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)), and courts “are not required to 6 indulge unwarranted inferences,” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) 7 (internal quotation marks and citation omitted). While factual allegations are accepted as true, legal 8 conclusions are not. Iqbal, 556 U.S. at 678. 9 While prisoners proceeding pro se in civil rights actions are still entitled to have their 10 pleadings liberally construed and to have any doubt resolved in their favor, the pleading standard is 11 now higher, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted), and to survive 12 screening, Plaintiff’s claims must be facially plausible, which requires sufficient factual detail to 13 allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged, 14 Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret Service, 572 F.3d 962, 969 15 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is not sufficient, and mere 16 consistency with liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678 17 (quotation marks omitted); Moss, 572 F.3d at 969. 18 II. Discussion 19 A. 20 Plaintiff is incarcerated at Kern Valley State Prison in Delano, California and he brings this 21 action against Correctional Counselor D. Brown for assigning him an “R” suffix, a designation for 22 sex offenders which Plaintiff alleges endangers his life. 23 24 B. Allegations Findings 1. Eighth Amendment Claim 25 The Eighth Amendment’s prohibition against cruel and unusual punishment protects 26 prisoners not only from inhumane methods of punishment but also from inhumane conditions of 27 confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006) (citing Farmer v. Brennan, 28 511 U.S. 825, 847, 114 S.Ct. 1970 (1994) and Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2 1 2392 (1981)) (quotation marks omitted). While conditions of confinement may be, and often are, 2 restrictive and harsh, they must not involve the wanton and unnecessary infliction of pain. Morgan, 3 465 F.3d at 1045 (citing Rhodes, 452 U.S. at 347) (quotation marks omitted). Thus, conditions 4 which are devoid of legitimate penological purpose or contrary to evolving standards of decency that 5 mark the progress of a maturing society violate the Eighth Amendment. Morgan, 465 F.3d at 1045 6 (quotation marks and citations omitted); Hope v. Pelzer, 536 U.S. 730, 737, 122 S.Ct. 2508 (2002); 7 Rhodes, 452 U.S. at 346. 8 Prison officials have a duty to ensure that prisoners are provided adequate shelter, food, 9 clothing, sanitation, medical care, and personal safety, Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 10 2000) (quotation marks and citations omitted), but not every injury that a prisoner sustains while in 11 prison represents a constitutional violation, Morgan, 465 F.3d at 1045 (quotation marks omitted). 12 To maintain an Eighth Amendment claim, a prisoner must show that prison officials were 13 deliberately indifferent to a substantial risk of harm to his health or safety. E.g., Farmer, 511 U.S. 14 at 847; Thomas v. Ponder, 611 F.3d 1144, 1151-52 (9th Cir. 2010); Foster v. Runnels, 554 F.3d 807, 15 812-14 (9th Cir. 2009); Morgan, 465 F.3d at 1045; Johnson, 217 F.3d at 731; Frost v. Agnos, 152 16 F.3d 1124, 1128 (9th Cir. 1998). 17 Plaintiff alleges that the assessment of the “R” suffix by Defendant Brown endangers his 18 safety because he belongs to the Suerños, a prison gang. However, Plaintiff was placed in 19 administrative segregation due to safety concerns and he was thereafter given the choice of either 20 the sensitive needs yard (SNY) or the security housing unit (SHU). (Amend. Comp., pp. 3-4.) 21 While the Court recognizes that sex offenses are not viewed favorably in prison and the 22 assignment of an “R” suffix is therefore not desirable, it is nevertheless merely a classification 23 decision which, in and of itself, does not violate the Eighth Amendment. See Morgan, 465 F.3d at 24 1045. Here, Plaintiff is not alleging the existence of a substantial risk of harm to his safety which 25 is or was being ignored by prison officials; Plaintiff was assigned housing to accommodate any 26 safety concerns arising out of the assignment of the “R” suffix. Plaintiff is instead alleging a claim 27 against the individual who assessed the classification arising out of the classification itself. Despite 28 /// 3 1 Plaintiff’s understandable displeasure with the classification, there are no facts pled which support 2 an Eighth Amendment claim. See id. 3 2. Fourteenth Amendment Due Process Claim 4 As in his original complaint, Plaintiff alleges only an Eighth Amendment claim arising out 5 of a threat to his safety, but to the extent that his amended complaint can be read to also plead a due 6 process claim, Plaintiff has not alleged any facts supporting the existence of a protected liberty 7 interest in remaining free from the “R” suffix designation. Wilkinson v. Austin, 545 U.S. 209, 221, 8 125 S.Ct. 2384 (2005); Sandin v. Conner, 515 U.S. 472, 481-84, 115 S.Ct. 2293 (1995); cf. Neal v. 9 Shimoda, 131 F.3d 818, 827-30 (9th Cir. 1997) (finding a liberty interest in remaining free from sex 10 offender status where the designation was accompanied by a requirement that inmates complete an 11 extensive treatment program as a precondition to parole eligibility). Plaintiff’s mere disagreement 12 with the classification decision does not support a due process claim, and there are no facts pled 13 which support the existence of a protected liberty in remaining free from an “R” suffix classification. 14 Wilkinson, 545 U.S. at 221-23. 15 III. Conclusion and Recommendation 16 The Court has screened Plaintiff’s amended complaint and finds that it fails to state a claim 17 under section 1983. Based on the nature of the deficiencies and the Court’s previous screening 18 order, the Court finds that further leave to amend is not warranted. Lopez v. Smith, 203 F.3d 1122, 19 1130 (9th Cir. 2000); Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). 20 21 Accordingly, the Court HEREBY RECOMMENDS that this action be dismissed, with prejudice, for failure to state a claim under section 1983. 22 These Findings and Recommendations will be submitted to the United States District Judge 23 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) 24 days after being served with these Findings and Recommendations, Plaintiff may file written 25 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 26 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 27 /// 28 /// 4 1 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 2 1153 (9th Cir. 1991). 3 4 IT IS SO ORDERED. 5 Dated: ie14hj November 6, 2012 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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