Brewer v. Bravo

Filing 8

ORDER DISMISSING 7 First Amended Complaint WITH LEAVE TO AMEND, signed by Magistrate Judge Barbara A. McAuliffe on 11/18/2013. Amended Complaint Due Within Thirty Days. (Attachments: # 1 1983 Amende Complaint Form) (Marrujo, C)

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EASTERN DISTRICT OF CALIFORNIA

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CURTIS BREWER,

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Plaintiff,
v.
R. BRAVO,

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Defendant.

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1:12-cv-01025-BAM (PC)
ORDER DISMISSING FIRST AMENDED
COMPLAINT WITH LEAVE TO AMEND
(ECF No. 7)
THIRTY-DAY DEADLINE

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I.

Screening Requirement and Standard

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Plaintiff Curtis Brewer (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On October 8, 2013, the Court

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dismissed Plaintiff’s complaint with leave to amend. Plaintiff’s first amended complaint, filed

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on November 8, 2013, is currently before the Court for screening.

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The Court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. §

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1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous or

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malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary

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

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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

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pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not
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required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937,

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1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65

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(2007)). While a plaintiff’s allegations are taken as true, courts “are 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).

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To survive screening, Plaintiff’s claims must be facially plausible, which requires

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sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable

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for the misconduct alleged. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks omitted);

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Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility

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that a defendant acted unlawfully is not sufficient, and mere consistency with liability falls short

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of satisfying the plausibility standard. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks

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omitted); Moss, 572 F.3d at 969.
Plaintiff’s Allegations

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II.

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Plaintiff is currently housed at the Lancaster State Prison. The events complained about

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allegedly occurred while Plaintiff was housed at Kern Valley State Prison.
Plaintiff alleges as follows: On May 27, 2010, Inmate Cook, recognized as a Blood,

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assaulted another inmate, recognized as a Crip, with a homemade weapon. After this incident,

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all black inmates on Facility D were placed on lock down and all movement dealing with black

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inmates was to be done with handcuffs and escorts to keep further incidences from occurring

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between the two factions. These requirements were clearly stated in the program status reports

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issued to every control booth officer in all housing units on Facility D.

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On July 18, 2010, Plaintiff was called out of his living quarters to perform his duties as a

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representative for the black population on the Men’s Advisory Council. At 2:10 p.m., Defendant

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Bravo, the control booth officer, informed Plaintiff that there had been a mistake concerning the

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preparation of the general population food. Upon confirming that the issue had been resolved,

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Plaintiff exited the sally port area to inform the population that the serving of food was to be

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general population inmates.
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Plaintiff entered section A of his housing unit. Plaintiff was performing his duties by

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letting Inmate Davis know the situation with the food. As Plaintiff was doing so, he heard

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someone shouting and then a door opening for the living quarters of Inmate Smith. Plaintiff saw

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Inmate Smith coming towards him down the stairs. Inmate Smith stated, “What’s up Bhris

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[Plaintiff’s AKA] you know the business.” Once Inmate Smith was close enough, he started to

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throw punches at Plaintiff. While Plaintiff was defending himself, Plaintiff caught a glimpse of

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Inmate Board, Inmate Smith’s cellmate, coming towards him. Inmate Board joined Inmate

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Smith in the assault. During the assault, Plaintiff fell to the ground where he was repeatedly

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kicked and punched until responding staff arrived and stopped the assault by using mace.

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Plaintiff and the other inmates were placed in handcuffs and taken to medical for

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decontamination and treatment. They were then placed in administrative segregation.

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Plaintiff complains that Defendant Bravo violated the orders of the program status report

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by allowing Inmates Smith and Board out of their living quarters without proper precautions.

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Plaintiff claims that Defendant Bravo neglected his duties and failed to protect Plaintiff.

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Plaintiff seeks compensatory and punitive damages.

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III.

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Plaintiff alleges a claim against Correctional Officer Bravo for failure to protect him from

Discussion

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an assault. Prison officials are required “to take reasonable steps to protect inmates from

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physical abuse.” Hoptowit v. Ray, 682 F.2d 1237, 1250 (9th Cir. 1982) (abrogated on other

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grounds by Sandin v. O’Connor, 515 U.S. 472, 115 S. Ct. 2293 (1995)). To state a claim under

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the Eighth Amendment, the plaintiff must show that the defendant acted with deliberate

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indifference. Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010) (citations omitted).

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Deliberate indifference requires a showing that “prison officials were aware of a ‘substantial risk

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of serious harm’ to an inmate’s health or safety” and that there was no “reasonable justification

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for the deprivation, in spite of that risk.” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 837,

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844, 114 S. Ct. 1970, 1979, 1982 (1994)).

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Here, Plaintiff has not alleged sufficient facts to demonstrate that Defendant Bravo was
aware that Plaintiff was at a substantial risk of serious harm from an assault. That Defendant
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Bravo may have allowed inmates out of their cells, including Plaintiff, without handcuffs or

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escorts more than a month after the initial lockdown is not sufficient to establish a failure to

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protect. Plaintiff has not alleged that Defendant Bravo believed Plaintiff to be a member of

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either gang faction involved in the May 2010 incident making him generally vulnerable to an

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assault. Plaintiff also has not alleged that Defendant Bravo was aware that Plaintiff was at risk

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of assault from Inmates Smith or Board. Plaintiff therefore fails to state a cognizable claim for

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failure to protect. As discussed below, Plaintiff will be given leave to cure this deficiency.

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IV.

Conclusion and Order

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Plaintiff’s complaint fails to state a cognizable claim upon which relief may be granted

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under section 1983. However, the Court will provide Plaintiff with the opportunity to file an

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amended complaint. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).

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

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

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rights. Iqbal, 556 U.S. at 676. Plaintiff also must set forth “sufficient factual matter . . . to ‘state

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a claim that is plausible on its face.’” Id. at 678. (quoting Twombly, 550 U.S. at 555). Plaintiff

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

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adding new, unrelated claims.

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Finally, Plaintiff is advised that pursuant to Local Rule 220, the amended complaint must

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be “complete in itself without reference to the prior or superseded pleading.” Local Rule 220.

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Once an amended complaint is filed, the original complaint no longer serves any function in the

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case. The amended complaint should be clearly and boldly titled “First Amended Complaint,”

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refer to the appropriate case number, 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.

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

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2.

Plaintiff’s first amended complaint is dismissed for failure to state a claim with

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leave to file a second amended complaint within thirty (30) days from the date of service of this

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order; and

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If Plaintiff fails to comply with this order, the Court will dismiss this action

for failure to obey a court order and for failure to state a claim.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

November 18, 2013

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A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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