Hershel Mitchell v. Cates et al

Filing 8

ORDER DISMISSING Action for Failure to State a Claim, signed by Magistrate Judge Barbara A. McAuliffe on 11/4/13. CASE CLOSED. (Gonzalez, R)

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EASTERN DISTRICT OF CALIFORNIA

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HERSHEL C. MITCHELL,

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Plaintiff,
v.

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MATTHEW CATES, et al.,

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Defendants.

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1:12-cv-01259-BAM (PC)
ORDER DISMISSING ACTION FOR
FAILURE TO STATE A CLAIM
(ECF No. 7)

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I.

Screening Requirement and Standard

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Plaintiff Hershel C. Mitchell (“Plaintiff”) is a state prisoner proceeding pro se and in

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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On October 10, 2013, the

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

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filed on October 31, 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 California Correctional Institution located in

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Tehachapi, California. The events complained about allegedly occurred while Plaintiff was

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housed at Avenal State Prison. Plaintiff names (1) Matthew Cates, Secretary of the California

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Department of Corrections and Rehabilitation; (2) J. D. Hartley, Warden at Avenal State Prison;

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(3) R. Boccella, Correctional Captain at Avenal State Prison; and (3) Duval, Correctional

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Lieutenant at Avenal State Prison as defendants.

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Plaintiff alleges as follows: On March 14, 2012, while incarcerated on Facility-A yard,

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Building 120, Dorm #1-3L, Plaintiff and Inmate McDowell were involved in a verbal

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confrontation because Inmate McDowell was using a cigarette lighter to burn incense in the

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dorm. Plaintiff asked Inmate McDowell not to burn the incense in the dorm area because

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Plaintiff was a life-long non-smoker and was allergic to second-hand smoke. Plaintiff

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experienced respiratory problems, difficulty breathing and became physically ill. When Plaintiff

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asked Inmate McDowell not to burn the incense, Inmate McDowell became hostile and stated,

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“You’re not going to tell me how to do my program.” As Plaintiff had only recently moved into
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the dorm, Inmate McDowell further stated, “You just moved into the dorm and you’re not going

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to move in here and change the way that I do things.” (ECF No. 7, p. 3.) Plaintiff then left the

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dorm and went outside so that his breathing could return to normal.

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When Plaintiff returned to the dorm about an hour and a half later, Inmate McDowell was

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still burning incense, which resulted in another verbal confrontation between Plaintiff and Inmate

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McDowell. Inmate McDowell then used a contraband cell phone to call other CRIPP gang

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inmates and inform them Plaintiff was going to tell correctional officers that Inmate McDowell

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was burning incense in the dorm area.
Approximately ten to twelve hours later, Plaintiff received injuries from an assault by two

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CRIPP gang inmates named Verdon and Howell. During the course of the assault, Inmate

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Howell stated that they had received information from Inmate McDowell that Plaintiff was going

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to inform correctional officers that Inmate McDowell was using a contraband cigarette lighter to

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burn incense in Building 120, Dorm 1, on the Facility A Yard.
Plaintiff claims that defendants violated his Eighth Amendment rights against cruel and

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unusual punishment by exposing him to second hand smoke. Plaintiff further claims that

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defendants knew of the existence of illegal contraband, such as cigarette lighters, cell phones,

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and tobacco products in the possession of the other inmates prior to Plaintiff’s incarceration at

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Avenal State Prison. Plaintiff asserts that he was the victim of assault by other prisoners who

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had these contraband items in their possession. Plaintiff believes that defendants disregarded the

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threats and risk of safety posed by the contraband despite disciplinary reports and referrals for

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prosecution of other inmates in the possession of contraband at Avenal State Prison.

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Plaintiff further claims that defendants violated his Equal Protection rights because he

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was not protected from the assault. Plaintiff also claims that his Equal Protection rights were

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violated because defendants did not take any legal actions against the inmates who committed

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battery in his case.
Plaintiff seeks compensatory and punitive damages, along with declaratory relief.

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III.

A. Equal Protection – Fourteenth Amendment

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Discussion

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

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treated alike. Lee v. City of Los Angeles, 250 F.3d 668, 686 (2001); City of Cleburne v.

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Cleburne Living Center, 473 U.S. 432, 439 (1985). An equal protection claim may be

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established by showing that the defendant intentionally discriminated against the plaintiff based

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on the plaintiff’s membership in a protected class, Lee, 250 F.3d at 686; Barren v. Harrington,

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152 F.3d 1193, 1194 (1998), or that plaintiff has been intentionally treated differently from

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similarly situated individuals without a rational basis for the difference in treatment, Thornton v.

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City of St. Helens, 425 F.3d 1158, 1167 (2005); Village of Willowbrook v. Olech, 528 U.S. 562,

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564 (2000).

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Plaintiff has failed to state a cognizable equal protection claim. Plaintiff has not alleged

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that he was discriminated against based on his membership in a protected class or that he was

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intentionally treated differently than similarly situated individuals. Rather, Plaintiff’s equal

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protection claim derives from his allegations that the inmates involved in his assault were not

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properly punished or referred for criminal prosecution. Such allegations are not sufficient to

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support a violation of Plaintiff’s equal protection rights. This deficiency cannot be cured by

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amendment.

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As the Court previously informed Plaintiff, to the extent that his equal protection claim is

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based on allegations that defendants failed to protect him from assault, such allegations are better

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suited to an Eighth Amendment claim. Such a claim is discussed below in greater detail.

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B. Eighth Amendment

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1. Failure to Protect

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Prison officials are required “to take reasonable steps to protect inmates from physical

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

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Sandin v. Conner, 515 U.S. 472, 115 S. Ct. 2293 (1995)). Prison officials also have a duty to

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“protect prisoners from violence at the hands of other prisoners.” Farmer v. Brennan, 511 U.S.

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825, 833, 114 S.Ct. 1970, 1976 (1994). However, “not . . . every injury suffered by one prisoner
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at the hands of another [ ] translates into constitutional liability for prison officials responsible

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for the victim’s safety.” Id. at 834. A prison official cannot be found liable under the Eighth

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Amendment unless the official “knows of and disregards and excessive risk to inmate health or

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safety.” Id. at 837. The prison official must “both be aware of facts from which the inference

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could be drawn that a substantial risk of serious harm exists, and he must also draw the

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inference.” Id.
As with the allegations in his original complaint, the allegations in Plaintiff’s amended

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complaint fail to show that any named defendant knew that Plaintiff was at a substantial risk of

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an assault by Inmates Verdon, Howell or McDowell. Plaintiff fails to state a cognizable claim

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for failure to protect him from assault. Despite being informed of the relevant legal standard,

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Plaintiff has not been able to cure the deficiencies in his Eighth Amendment failure to protect

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claim.

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2. Conditions of Confinement
Plaintiff alleges that the incense smoke and contraband items violated his constitutional

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right against cruel and unusual punishment. The Eighth Amendment’s prohibition against cruel

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and unusual punishment protects prisoners from inhumane conditions of confinement. Morgan

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v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). Prison officials therefore have a “duty to

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ensure that prisoners are provided adequate shelter, food, clothing, sanitation, medical care, and

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personal safety.” Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000) (citations omitted).

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In order to establish a violation of this duty, a prisoner must show that he was subjected

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to an objectively serious deprivation that amounts to a denial of “the minimal civilized measure

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of life’s necessities.” Farmer, 511 U.S. at 834 (quoting Rhodes v. Chapman, 452 U.S. 337, 346,

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101 S.Ct. 2392, 69 L.Ed.2d 59 (1981)). A prisoner must also show that prison officials acted

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with sufficiently culpable states of mind in failing to satisfy their duties. Farmer, 511 U.S. at 834.

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Prison officials must have acted with deliberate indifference. Id. As discussed above, a prison

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official is liable under the Eighth Amendment only if he “knows of and disregards an excessive

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risk to inmate health and safety; the official must both be aware of facts from which the

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inference could be drawn that a substantial risk of serious harm exists, and he must also draw the

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inference.” Id. at 837.

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As with his original complaint, Plaintiff has failed to allege sufficient facts to

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demonstrate that defendants knew of Inmate McDowell’s possession and burning of incense (or

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possession of contraband) and disregarded an excessive risk to Plaintiff’s health. Plaintiff’s

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generalized allegations regarding the known possession of contraband by other inmates is not

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sufficient. Despite being informed of the relevant legal standard, Plaintiff has been unable to

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cure this deficiency.

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IV.

Conclusion and Order

Plaintiff’s first amended complaint fails to state a cognizable claim upon which relief

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may be granted under section 1983. Despite being provided the relevant legal standards and an

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opportunity to amend, Plaintiff has been unable to state a cognizable claim and further leave to

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amend will not be granted. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). Accordingly,

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it is HEREBY ORDERED that this action is DISMISSED, with prejudice, for failure to state a

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claim. This dismissal is subject to the “three-strikes” provision set forth in 28 U.S.C. § 1915(g).

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IT IS SO ORDERED.
Dated:

/s/ Barbara

November 4, 2013

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A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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