Washington v. Ogletree et al

Filing 22

FINDINGS and RECOMMENDATIONS, Recommending that this Case be Dismissed, with Prejudice, for Failure to State a Claim, signed by Magistrate Judge Gary S. Austin on 5/7/14. Referred to Judge Ishii; 30-Day Deadline. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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FRANKIE WASHINGTON,

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Plaintiff,

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vs.
D. OGLETREE, et al.,

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Defendants.

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1:12-cv-01473-AWI-GSA-PC
FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT THIS CASE BE
DISMISSED, WITH PREJUDICE, FOR
FAILURE TO STATE A CLAIM
(Doc. 14.)
OBJECTIONS, IF ANY, DUE WITHIN
THIRTY DAYS

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I.

BACKGROUND

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Frankie Washington ("Plaintiff") is a state prisoner proceeding pro se and in forma

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pauperis with this civil rights action pursuant to 42 U.S.C. ' 1983. Plaintiff filed the Complaint

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commencing this action on September 10, 2012. (Doc. 1.) The court screened the Complaint

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pursuant to 28 U.S.C. 1915A and issued an order on May 17, 2013, dismissing the Complaint

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for failure to state a claim, with leave to amend. (Doc. 12.) On July 15, 2013, Plaintiff filed

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the First Amended Complaint, which is now before the court for screening. (Doc. 14.)

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II.

SCREENING REQUIREMENT

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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 officer or employee of a governmental entity. 28 U.S.C. ' 1915A(a).
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The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are

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legally Afrivolous or malicious,@ that fail to state a claim upon which relief may be granted, or

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that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.

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' 1915A(b)(1),(2). ANotwithstanding any filing fee, or any portion thereof, that may have been

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paid, the court shall dismiss the case at any time if the court determines that the action or

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appeal fails to state a claim upon which relief may be granted.@ 28 U.S.C. ' 1915(e)(2)(B)(ii).

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A complaint is required to contain Aa short and plain statement of the claim showing

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that the pleader is entitled to relief.@ Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are

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not required, but A[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

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(2007)). While a plaintiff=s allegations are taken as true, courts Aare 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). Plaintiff must set forth Asufficient factual

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matter, accepted as true, to >state a claim to relief that is plausible on its face.=@ Iqbal 556 U.S.

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at 678. While factual allegations are accepted as true, legal conclusions are not. Id.

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To state a viable claim for relief, Plaintiff must set forth sufficient factual allegations to

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state a plausible claim for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572

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F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this

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plausibility standard. Id.

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III.

SUMMARY OF FIRST AMENDED COMPLAINT

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Plaintiff is presently incarcerated at the Central California Women’s Facility in

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Chowchilla, California, where the events at issue in the First Amended Complaint allegedly

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occurred. Plaintiff names as defendants Correctional Officer (C/O) D. Ogletree and the State of

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California (“Defendants”).

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entirety:

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Plaintiff’s statement of claim consists of the following, it its

“On 4/17/2011, I jumped on the telephone 5 minutes earlier than my time, at
8:55 a.m., but my name was on the list for 9:00 a.m. Officer Ogletree said he
was tired of me being a bully and moved me out of my cell, to where roommates
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who are of a different caliber are at. I was attacked and bitten the following
Sunday on C/O Ogletree’s shift. He had a discussion with the entire room
except me, I didn’t attend. Inmate Franks came in, bit me 3 times, cut me, and
said she was going to set me up on a rape case. I ended up in SHU for two
years, for fighting back. I have to get tested for aids now every 6 months.
Franks was not punished, the inmate who bit and cut me. The state has rules,
policies and ordinances to prevent officers from segregating bullys (sic), gays,
and ill inmates.”

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First Amended Complaint at 3 ¶IV. Plaintiff requests monetary damages and injunctive relief.

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IV.

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PLAINTIFF=S CLAIMS
The Civil Rights Act under which this action was filed provides:

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Every person who, under color of [state law] . . . subjects, or
causes to be subjected, any citizen of the United States . . . to the
deprivation of any rights, privileges, or immunities secured by
the Constitution . . . shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for
redress.

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42 U.S.C. ' 1983. ASection 1983 . . . creates a cause of action for violations of the federal

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Constitution and laws.@ Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997)

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(internal quotations omitted). ATo the extent that the violation of a state law amounts to the

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deprivation of a state-created interest that reaches beyond that guaranteed by the federal

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Constitution, Section 1983 offers no redress.@ Id.

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A.

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Plaintiff names the State of California as a defendant. Plaintiff is advised that she may

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not sustain an action against a state. The Eleventh Amendment prohibits federal courts from

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hearing suits brought against an unconsenting state. Brooks v. Sulphur Springs Valley Elec.

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Co., 951 F.2d 1050, 1053 (9th Cir. 1991) (citation omitted); see also Seminole Tribe of Fla. v.

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Florida, 116 S.Ct. 1114, 1122 (1996); Puerto Rico Aqueduct Sewer Auth. v. Metcalf & Eddy,

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Inc., 506 U.S. 139, 144 (1993); Austin v. State Indus. Ins. Sys., 939 F.2d 676, 677 (9th Cir.

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1991). Because California is a state, it is entitled to Eleventh Amendment immunity from suit.

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Therefore, Plaintiff fails to state a claim against defendant State of California.

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///

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///

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///

Eleventh Amendment

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B.

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Plaintiff alleges that defendant C/O Ogletree failed to protect her from attack by another

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Failure to Protect - Eighth Amendment Claim

inmate.

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The Eighth Amendment protects prisoners from inhumane methods of punishment and

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from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th

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Cir. 2006). Although prison conditions may be restrictive and harsh, prison officials must

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provide prisoners with food, clothing, shelter, sanitation, medical care, and personal safety.

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Farmer v. Brennan, 511 U.S. 825, 832-33, 114 S.Ct. 1970 (1994) (internal citations and

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quotations omitted). Prison officials have a duty to take reasonable steps to protect inmates

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from physical abuse. Farmer, 511 U.S. at 833; Hearns v. Terhune, 413 F.3d 1036, 1040 (9th

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Cir. 2005).

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To establish a violation of this duty, the prisoner must establish that prison officials

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were Adeliberately indifferent to a serious threat to the inmates=s safety.@ Farmer, at 834. The

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question under the Eighth Amendment is whether prison officials, acting with deliberate

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indifference, exposed a prisoner to a sufficiently substantial >risk of serious damage to his

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future health . . . .=@ Id. at 843 (citing Helling v. McKinney, 509 U.S. 25, 35 (1993)). The

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Supreme Court has explained that Adeliberate indifference entails something more than mere

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negligence . . . [but] something less than acts or omissions for the very purpose of causing harm

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or with the knowledge that harm will result.@ Farmer at 835. The Court defined this Adeliberate

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indifference@ standard as equal to Arecklessness,@ in which Aa person disregards a risk of harm

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of which he is aware.@ Id. at 836-37.

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The deliberate indifference standard involves both an objective and a subjective prong.

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First, the alleged deprivation must be, in objective terms, Asufficiently serious.@ Id. at 834.

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Second, subjectively, the prison official must Aknow of and disregard an excessive risk to

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inmate health or safety.@ Id. at 837; Anderson v. County of Kern, 45 F.3d 1310, 1313 (9th Cir.

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1995). To prove knowledge of the risk, however, the prisoner may rely on circumstantial

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evidence; in fact, the very obviousness of the risk may be sufficient to establish knowledge.

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Farmer, 511 U.S. at 842; Wallis v. Baldwin, 70 F.3d 1074, 1077 (9th Cir. 1995).
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Plaintiff fails to state a claim against defendant C/O Ogletree for failure to protect her.

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While Plaintiff alleges that defendant C/O Ogletree housed her in a cell with roommates “of a

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different caliber,” Plaintiff has not shown that C/O Ogletree knew of an excessive risk of harm

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to Plaintiff’s safety and acted while consciously disregarding the risk. Plaintiff alleges no facts

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showing that inmate Franks posed a particular, present danger to Plaintiff known to C/O

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Ogletree when C/O Ogletree placed the two inmates together. Inmates of opposite gangs

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placed in a cell with each other, without more, fails to satisfy the Eighth Amendment’s standard

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that a prison official must be aware of a specific risk to an inmate. Labatad v. Corrections

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Corp. of America, 714 F.3d 1155, 1161 (9th Cir. 2013). Therefore, Plaintiff fails to state a

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claim against defendant C/O Ogletree for failure to protect her.

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V.

CONCLUSION AND RECOMMENDATIONS

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The Court finds that Plaintiff=s First Amended Complaint fails to state any cognizable

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claims upon which relief may be granted under ' 1983. In this action, the Court previously

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granted Plaintiff an opportunity to amend the complaint, with ample guidance by the Court.

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Plaintiff has now filed two complaints without alleging facts against any of the Defendants

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which state a claim under ' 1983. The Court finds that the deficiencies outlined above are not

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capable of being cured by amendment, and therefore further leave to amend should not be

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granted. 28 U.S.C. ' 1915(e)(2)(B)(ii); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000).

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Therefore, IT IS HEREBY RECOMMENDED that pursuant to 28 U.S.C. ' 1915A

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and 28 U.S.C. ' 1915(e), this action be dismissed with prejudice for failure to state a claim

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upon which relief may be granted under ' 1983, and that this dismissal be subject to the Athree-

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strikes@ provision set forth in 28 U.S.C. ' 1915(g). Silva v. Vittorio, 658 F.3d 1090, 1098 (9th

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Cir. 2011).

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These Findings and Recommendations will be submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within

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thirty (30) days after being served with these Findings and Recommendations, Plaintiff may

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file written objections with the court. The document should be captioned AObjections to

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Magistrate Judge=s Findings and Recommendations.@ Plaintiff is advised that failure to file
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objections within the specified time may waive the right to appeal the District Court=s order.

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Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:

May 7, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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