Garcia v. CDCR et al

Filing 8

ORDER Dismissing Plaintiff's First Amended Complaint 7 for Failure to State a Cognizable Claim; Clerk Shall Close Case, signed by Magistrate Judge Michael J. Seng on 11/30/12. CASE CLOSED. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GERARDO GARCIA,
Plaintiff,

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CDCR, et al.

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1:12-cv-1209-MJS (PC)

ORDER DISMISSING PLAINTIFF’S FIRST
AMENDED COMPLAINT FOR FAILURE TO
STATE A COGNIZABLE CLAIM

v.

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CASE NO.

(ECF No. 7)
Defendants.

CLERK SHALL CLOSE CASE

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/

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Plaintiff Gerardo Garcia (“Plaintiff”) is a state prisoner proceeding pro se in this civil

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rights action pursuant to 42 U.S.C. § 1983. Plaintiff has consented to Magistrate Judge

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jurisdiction. (ECF No. 5.)

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Plaintiff initiated this action on July 25, 2012. (Compl., ECF No. 1.) The Court

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screened Plaintiff’s Complaint and dismissed it, with leave to amend, for failure to state a

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claim. (ECF No. 6.) Plaintiff filed a First Amended Complaint on November 13, 2012.

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(Am. Compl., ECF No. 7.) Plaintiff’s First Amended Complaint is currently before the Court

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for screening.

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I.

SCREENING REQUIREMENT

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

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against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has

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raised claims that are legally “frivolous, malicious,” or that fail to state a claim upon which

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relief may be granted, or that seek monetary relief from a defendant who is immune from

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such relief. 28 U.S.C. § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion

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thereof, that may have been paid, the court shall dismiss the case at any time if the court

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determines that . . . the action or appeal . . . fails to state a claim upon which relief may be

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granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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§ 1983 “provides a cause of action for the ‘deprivation of any rights, privileges, or

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immunities secured by the Constitution and laws’ of the United States.” Wilder v. Virginia

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Hosp. Ass’n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). § 1983 is not itself a

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source of substantive rights, but merely provides a method for vindicating federal rights

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conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989).

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II.

SUMMARY OF COMPLAINT

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Plaintiff is currently incarcerated at California Correctional Institution in Tehachapi,

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California. Plaintiff was previously incarcerated at Kern Valley State Prison (“KVSP”),

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where the events alleged in his First Amended Complaint occurred. Plaintiff alleges that

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the following individuals conspired to place him in danger, thereby violating his rights under

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the Eighth Amendment: 1) E. Blanco, Chief Deputy Warden at KVSP, 2) O. Smith, CC2

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at KVSP, 3) D. Goree, CC2 at KVSP, 4) Williams, Sergeant at KVSP, 5) R. Barrett,

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Sergeant at KVSP, 6) L. Kirby, Sergeant at KVSP, and 7) M. Jones, Sergeant at KVSP.

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Plaintiff alleges as follows:

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On June 14, 2011, Defendant Smith updated Plaintiff’s CDCR Form 812 to indicate

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that inmate Gonzales, a documented enemy of Plaintiff, was no longer housed at KVSP

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even though he was still housed there. (Am. Compl. at 3-4.) Defendants Goree, Smith,

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Williams, Smith, Kirby, and Jones conspired to transfer Plaintiff to Facility C at KVSP, even

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though inmate Gonzales was still housed in this area. (Id. at 4.) After the transfer, Plaintiff

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fought inmate Gonzales and was placed in the Secured Housing Unit. (Id. at 5.)
Plaintiff asks for $25,000 in damages from each Defendant. (Am. Compl. at 3.)

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III.

ANALYSIS

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A.

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential

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elements: (1) that a right secured by the Constitution or laws of the United States was

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violated and (2) that the alleged violation was committed by a person acting under the color

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of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811

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42 U.S.C. § 1983

F.2d 1243, 1245 (9th Cir. 1987).

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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

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not required, but “[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, 129 S.Ct. 1937, 1949

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(2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set

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forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its

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face.’” Id. Facial plausibility demands more than the mere possibility that a defendant

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committed misconduct and, while factual allegations are accepted as true, legal

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conclusions are not. Id. at 1949-50.

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B.

Linkage

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As an initial issue, Plaintiff fails to link Defendant Blanco to his claims.

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Under § 1983, Plaintiff must demonstrate that each named defendant personally

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participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir.

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2002). The Supreme Court has emphasized that the term “supervisory liability,” loosely

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and commonly used by both courts and litigants alike, is a misnomer. Iqbal, 129 S. Ct. at

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1949. “Government officials may not be held liable for the unconstitutional conduct of their

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subordinates under a theory of respondeat superior.”

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government official, regardless of his or her title, is only liable for his or her own
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Id. at 1948.

Rather, each

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misconduct, and therefore, Plaintiff must demonstrate that each defendant, through his or

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her own individual actions, violated Plaintiff's constitutional rights. Id. at 1948–49.

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In his First Amended Complaint, Plaintiff has not alleged facts demonstrating that

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Defendant Blanco personally acted to violate his rights. He instead alleges that Defendant

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Blanco should be held responsible because of his supervisory duties as Chief Deputy

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Warden of KVSP.

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participated in the deprivation of Plaintiff’s rights. No point would be served by giving

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Plaintiff yet another opportunity to link Defendant Blanco to his claims.

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C.

Plaintiff has not explained how Defendant Blanco personally

Eighth Amendment Claim

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Plaintiff appears to be alleging a failure to protect claim under the Eighth

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Amendment against Defendants Smith, Goree, Williams, Barrett, Kirby, and Jones.

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“[A] prison official may be held liable under the Eighth Amendment for denying

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humane conditions of confinement only if he knows that inmates face a substantial risk of

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

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Farmer v. Brennan, 511 U.S. 825, 847 (1994). Prison officials are required to take

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reasonable measures to guarantee the safety of inmates and officials have a duty to

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protect prisoners from violence at the hands of other prisoners. Farmer, 511 U.S. at

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832–33; Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998).

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constitutional right, however, to enjoy a particular security classification or housing. See

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Meachum v. Fano, 427 U.S. 215, 224–25 (1976) (no liberty interest protected by the Due

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Process Clause is implicated in a prison's reclassification and transfer decisions); see also

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Myron v. Terhune, 476 F.3d 716, 718 (9th Cir. 2007). Further, “[v]erbal harassment or

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abuse ... is not sufficient to state a constitutional deprivation[.]” Oltarzewski v. Ruggiero,

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830 F.2d 136, 139 (9th Cir. 1987) (quoting Collins v. Cundy, 603 F.2d 825 (10th Cir.

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1979)).

An inmate has no

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Rather, to state a claim for threats to safety, an inmate must allege facts to support

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that he was incarcerated under conditions posing a substantial risk of harm and that prison

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officials were “deliberately indifferent” to those risks. Farmer, 511 U.S. at 834; Frost, 152
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F.3d at 1128; Redman v. County of Los Angeles, 942 F.2d 1435, 1443 (9th Cir. 1991) (en

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banc). To adequately allege deliberate indifference, a plaintiff must set forth facts to

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support that a defendant knew of, but disregarded, an excessive risk to inmate safety.

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Farmer, 511 U.S. at 837. That is, “the official must both [have been] aware of facts from

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which the inference could be drawn that a substantial risk of serious harm exist[ed], and

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he must also [have] draw[n] the inference.” Farmer, 511 U.S. at 837; Frost, 152 F.3d at

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1128; Redman, 942 F.2d at 1442.

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Without reaching the issue of whether the presence of a documented enemy

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automatically creates a substantial risk of serious harm as required by the first prong of an

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Eighth Amendment failure to protect claim, the Court finds that Plaintiff has not met the

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second prong of such a claim. He alleges only that various individuals incorrectly filled out

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a sheet indicating inmate Gonzales’ location, and alleges that other individuals should have

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known inmate Gonzales was in fact at the facility to which Plaintiff was assigned. This

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might reflect negligence on the part of Defendants, but not a constitutional violation. Again,

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Plaintiff fails to allege that any individually named Defendant was aware of the danger that

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inmate Gonzales posed to him and directly disregarded the risk. It is assumed that if

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Plaintiff was aware of any such facts, he would have alleged them after being given leave

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to do so. Nothing would be gained by giving him another opportunity to amend.

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Plaintiff has failed to state an Eighth Amendment claim. He will not be given further

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leave to amend.

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D.

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Plaintiff also appears to seek relief based upon allegations that Defendants

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Conspiracy

conspired to house Plaintiff in the same area as his documented enemy.

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Conspiracy under § 1983 merely provides a mechanism by which to plead or prove

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a constitutional or statutory violation. Landrigan v. City of Warwick, 628 F.2d 736, 742 (1st

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Cir. 1980). Although conspiracy claims are actionable under Section 1983, “it is necessary

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that there have been, besides the agreement, an actual deprivation of a right secured by

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the Constitution and laws.” Landrigan 628 F.2d at 742. A pro se complaint containing only
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conclusory, vague, or general allegations of conspiracy to deprive a person of

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constitutional rights will not withstand a motion to dismiss. Zemsky v. City of New York,

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821 F.2d 148, 152 (2nd Cir. 1987).
Again, Plaintiff has not pled sufficient facts to support a cognizable claim for

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conspiracy to violate Plaintiff’s constitutional rights.

Plaintiff’s bare allegation that

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Defendants conspired to place him on the same yard as his documented enemy is devoid

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of any of facts which might conceivably support it. For the same reasons as above,

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Plaintiff will not be given leave to amend this claim.

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IV.

CONCLUSION AND ORDER

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Plaintiff’s First Amended Complaint fails to state any claims upon which relief may

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be granted under section 1983. Plaintiff was previously notified of the deficiencies in his

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claims and given leave to amend. Based on the nature of the deficiencies at issue, the

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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, based on the foregoing, the Court HEREBY ORDERS that this action

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be DISMISSED in its entirety, WITH PREJUDICE, for failure to state a claim upon which

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relief may be granted.

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IT IS SO ORDERED.

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Dated:
ci4d6

November 30, 2012

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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