Phelps v. Cate, et al

Filing 15

FINDINGS and RECOMMENDATIONS recommending that action be DISMISSED with prejudice, that dismissal count as a strike pursuant 28:1915(g), and that the Clerk of the Court terminate any and all pending motions and close the case re 14 Amended Prisone r Civil Rights Complaint filed by Mark Raymond Phelps, 1 Prisoner Civil Rights Complaint filed by Mark Raymond Phelps ; referred to Judge O'Neill, signed by Magistrate Judge Michael J. Seng on 04/28/2015. Objections to F&R due by 5/15/2015 (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MARK RAYMOND PHELPS,

CASE NO. 1:13-cv-00309-LJO-MJS

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Plaintiff,

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v.

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MATTHEW CATE, et al.,
Defendants.

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FINDINGS AND RECOMMENDATIONS
TO DISMISS ACTION WITH PREJUDICE
FOR FAILURE TO STATE A CLAIM
(ECF No. 14)
FOURTEEN
DEADLINE

(14)

DAY

OBJECTION

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I.

PROCEDURAL HISTORY

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Plaintiff Mark Phelps, a state prisoner proceeding pro se and in forma pauperis,
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filed this civil rights action pursuant to 42 U.S.C. § 1983 on March 4, 2013. (ECF No. 1.)
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The Court screened Plaintiff’s complaint and dismissed it for failure to state a claim but
gave leave to amend. (ECF No. 11.) Plaintiff’s First Amended Complaint (ECF No. 14.)

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is now before the Court for screening.
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II.

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
raised claims that are legally “frivolous, malicious,” or that fail “to state a claim upon
which relief may be granted,” or that “seek monetary relief from a defendant who is
immune from such relief.” 28 U.S.C. § 1915A(b)(1), (2). “Notwithstanding any filing fee,
or any portion thereof, that may have been paid, the court shall dismiss the case at any
time if the court determines that . . . the action or appeal . . . fails to state a claim on
which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).
III.

SUMMARY OF COMPLAINT
Plaintiff identifies (1) Matthew Cate, Secretary of the California Department of

Corrections and Rehabilitation (“CDCR”), (2) Mike Stainer, Warden of the California
Correctional Institution (“CCI”) at Tehachapi, (3) J. Zamera, Appeals Examiner, (4) D.
Foston, Chief of Appeals, and correctional officers: (5) Kristofer Campbell, (6) Jordan
Dalton, (7) Steve Gurule, (8) Elizach Rangel, and (9) Does 1-8 as Defendants. Plaintiff’s
allegations can be summarized essentially as follows:
On May 19, 2011, two inmates, Charest and Medina, attacked Plaintiff by
stabbing him nine times in the exercise yard. A third inmate, Boukes, was complicit in
the attack. Plaintiff believes he was attacked because he was mistakenly identified as a
sex offender and because prison guards condone and allow such attacks.
One or more of the Doe Defendants (Does 1 and/or 2) and Defendants Dalton,
Gurule, and Rangel were in charge of strip searching Plaintiff, Charest, and Medina prior
to allowing them to enter the exercise yard.

Defendants either were negligent in

following the procedures for searching the inmates or purposefully allowed the knife to
be passed through security.
Defendants Campbell, Dalton, Gurule, Rangel, and Does 3 and 4 violated CDCR
policy by failing to properly search cells. Proper and routine cell searches would have
resulted in the knife being found prior to the attack on Plaintiff.

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In retaliation against Plaintiff for filing grievances regarding the incident,
Defendants Stainer, Campbell, Dalton, Gurule, Rangel, and Does 1-6 required him to
remain in administrative segregation (“ad-seg”) for an extra 191 days, from September
11, 2011 until April 26, 2012. Placement in ad-seg chilled Plaintiff’s desire to pursue
grievances. Inmates should only be placed in ad-seg for short periods of time because
inmates are confined to 60 square feet cells for 23 hours per day. The conditions in adseg are more severe because inmates have greater restrictions on their use and
possession of property and participation in prison activities. There was no penological
purpose for placing Plaintiff in ad-seg because Plaintiff had served his term in the
segregated housing unit and was set to return to regular housing.

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Defendants Cate, Stainer, Zamera, Foston, and Does 7 and 8 failed to protect
Plaintiff, prevented him from filing grievances, and retaliated against him as is evidenced
by: 1) Plaintiff’s grievance being converted to a staff complaint, 2) the failure of the
prison to punish the involved correctional officers, 3) after the incident, the District
Attorney was not notified and asked to file charges against the inmates involved, and 4)
Stainer and Cate’s conduct in protecting officers who violate prison policy.

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As a result of the attack, Plaintiff sustained both physical injuries and
psychological and emotional damage.

Plaintiff seeks damages and costs for

Defendants’ violations of his Eighth and Fourteenth Amendment rights and California
state law.
IV.

ANALYSIS
A.

Section 1983

Section 1983 “provides a cause of action for the ‘deprivation of any rights,
privileges, or immunities secured by the Constitution and laws’ of the United States.”
Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983).
Section 1983 “‘is not itself a source of substantive rights,’ but merely provides ‘a method

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for vindicating federal rights conferred elsewhere.’” Graham v. Connor, 490 U.S. 386,
393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144, n. 3 (1979)).
To state a claim under Section 1983, a plaintiff must allege two essential
elements: (1) that a right secured by the Constitution and laws of the United States was
violated and (2) that the alleged violation was committed by a person acting under the
color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); see also Ketchum v.
Cnty. of Alameda, 811 F.2d 1243, 1245 (9th Cir. 1987).
A complaint must contain “a short and plain statement of the claim showing that
the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations
are not required, but “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff
must set forth “sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Id. Facial plausibility demands more than the mere possibility
that a defendant committed misconduct and, while factual allegations are accepted as
true, legal conclusions are not. Id.
B.

Official Capacity

Plaintiff sues Defendants Cate, Stainer, and Defendant Does 1-8 in their
individual and official capacities.

Plaintiff may not bring suit for monetary damages

against Defendants in their official capacities. AThe Eleventh Amendment bars suits for
money damages in federal court against a state, its agencies, and state officials in their
official capacities.@ Aholelei v. Dep’t of Pub. Safety, 488 F.3d 1144, 1147 (9th Cir. 2007)
(citations omitted). Plaintiff’s official capacity claims should be dismissed without leave
to amend.
C.

Eighth Amendment – Failure to Protect

The Eighth Amendment “protects prisoners . . . from inhumane methods of
punishment . . . [and] inhumane conditions of confinement.” Morgan v. Morgensen, 465

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F.3d 1041, 1045 (9th Cir. 2006). Although prison conditions may be restrictive and
severe, prison officials must provide prisoners with adequate food, clothing, shelter,
sanitation, medical care, and personal safety. Farmer v. Brennan, 511 U.S. 825, 832
(1994). They also have a duty to take reasonable steps to protect inmates from physical
harm by other inmates. Id. at 833.
To establish a violation of this duty, the prisoner must establish that prison
officials were “deliberately indifferent” to serious threats to the inmate's health or safety.
Id. at 834. “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391
F.3d 1051, 1060 (9th Cir. 2004). “‘If a [prison official] should have been aware of the
risk, but was not, then the [official] has not violated the Eighth Amendment, no matter
how severe the risk.’” Id. at 1057 (quoting Gibson v. Cnty. of Washoe, 290 F.3d 1175,
1188 (9th Cir. 2002)).

The prisoner must show that “the official [knew] of and

disregard[ed] an excessive risk to inmate . . . safety; the official must both be aware of
facts from which the inference could be drawn that a substantial risk of serious harm
exists, and [the official] must also draw the inference.” Id. at 837; Anderson v. Cnty. of
Kern, 45 F.3d 1310, 1313 (9th Cir. 1995). To prove knowledge of the risk, the prisoner
may rely on circumstantial evidence; in fact, the very obviousness of the risk may be
sufficient to establish knowledge. Farmer, 511 U.S. at 842.
Plaintiff’s allegations do not support a claim against Defendants for failing to
protect him against inmates Charest, Medina, and Boukes.

Plaintiff alleges that

Defendant Does 1 and/or 2 and Defendants Dalton, Gurule, and Rangel violated his
Eighth Amendment rights by either failing to properly search inmates or purposefully
allowing the knife to be passed through. Plaintiff does not link the Doe Defendants to
any particular conduct, but just generally alleges that one or more of them was involved
in the violation of his rights. Plaintiff also fails to allege facts that would support the
conclusion that any of these Defendants was deliberately indifferent to a substantial risk
of serious harm. The very nature of the segregated housing unit environment being

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comprised of violent inmates or the mere fact that a knife passed through the security
system does not amount to deliberate indifference. Plaintiff has failed to plead any facts
suggesting that any of the Defendants knew or should have known of the knife or of any
intent to attack Plaintiff. At most he alleges simple negligence which does not give rise
to a Constitutional claim.
Plaintiff alleges that Defendants Campbell, Dalton, Gurule, Rangel, and Does 3
and 4 failed to protect him by not routinely and properly conducting cell searches which
would have led to the discovery of the knife. However, again Plaintiff has failed to plead
facts to suggest these Defendants knew that inmates Charest, Medina, and Boukes
were planning an attack or otherwise presented a substantial risk of harm to Plaintiff’s
safety. Plaintiff was advised in the Court’s prior screening order that his allegations
regarding the knife were purely speculative and unsupported by fact. His observation
that generally correctional officers did not conduct searches in a diligent manner, if at all,
does not support that on the date of the attack these Defendants knew the inmates had
the knife in one of their cells and purposefully failed to locate and/or dispose of it so that
it could be used in the attack on Plaintiff.
Lastly, Plaintiff states that Defendants Cate, Stainer, Zamera, Foston, and Does 7
and 8 failed to protect him, but he fails to allege any facts to demonstrate how or in what
regard they could have, but did not, protect him. The only alleged conduct regarding
these Defendants involves actions taken after the assault occurred.
Plaintiff has not stated an Eighth Amendment claim for failure to protect against
these Defendants. Plaintiff was advised of the deficiencies in his claim in the Court’s
prior screening order. Plaintiff’s failure to correct them is reasonably construed as an
inability to do so. Leave to amend would be futile and should be denied.
D.

First Amendment -- Retaliation

“Within the prison context, a viable claim of First Amendment retaliation entails
five basic elements: (1) An assertion that a state actor took some adverse action against

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an inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4)
chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not
reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559,
567-68 (9th Cir. 2005).
Plaintiff alleges that Defendants Cate, Stainer, Campbell, Dalton, Gurule, Rangel,
Zamera, Foston and Does 1-8 retaliated against him. However, Plaintiff fails to link any
of these Defendants to the alleged retaliatory conduct. He concludes, without support,
that Defendants Cate and Stainer were definitely involved, and he speculates that
Defendants Zamera, Foston, and some of the John Doe Defendants may have been
involved.

Plaintiff also alleges that he will discover additional facts regarding the

remaining Defendants during the discovery process. Plaintiff has failed to allege that
each of these Defendants personally participated in the deprivation of his rights. See
Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).
With respect to the elements of his claim, Plaintiff adequately alleges that: 1) an
adverse action was taken against him by placing him in segregation, 2) he filed and
pursued a grievance, a protected action under the First Amendment, 3) he was
transferred to an environment where he was confined for 23 hours per day and deprived
of regular prisoner privileges, an action that would chill a person of ordinary firmness
from repeating the actions which caused the transfer, and 4) there was no legitimate
correctional reason for placing him in ad-seg for that period of time. See Rhodes, 408
F.3d at 568-69 (citing Mendocino Envtl. Ctr. v. Mendocino Cnty., 192 F.3d 1283, 1300
(9th Cir. 1999). However, Plaintiff fails to allege facts to fulfill the pleading requirements
for the second element. Plaintiff has not tied his filing of grievances to his placement in
ad-seg. He fails to allege any facts that would support the conclusion that his protected
conduct was a “‘substantial’ or ‘motivating’ factor behind the [Defendants’] conduct.”
Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir. 2009) (quoting Sorrano’s Gasco, Inc. v.
Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989)).

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Plaintiff was advised of the deficiencies in his claim in the Court’s prior screening
order. Plaintiff’s failure to correct them is reasonably construed as an inability to do so.
Leave to amend would be futile and should be denied.
E.

Appeals Process

The Due Process Clause protects Plaintiff against the deprivation of liberty
without the procedural protections to which he is entitled under the law. Wilkinson v.
Austin, 545 U.S. 209, 221 (2005). However, prisoners have no stand-alone due process
rights related to the administrative grievance process. Ramirez v. Galaza, 334 F.3d 850,
860 (9th Cir. 2003); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). Failing to
properly process a grievance or denying a grievance does not constitute a due process
violation. See, e.g., Wright v. Shannon, No. 1:05-cv-01485-LJO-YNP PC, 2010 WL

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445203, at *5 (E.D. Cal. Feb. 2, 2010) (plaintiff's allegations that prison officials denied

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or ignored his inmate appeals failed to state a cognizable claim under the First

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Amendment); Williams v. Cate, No. 1;09-cv-00468-OWW-YNP PC, 2009 WL 3789597,

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at *6 (E.D. Cal. Nov. 10, 2009) (“Plaintiff has no protected liberty interest in the

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vindication of his administrative claims.”).

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Plaintiff complains that his grievances were denied, that the correctional officers

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went unpunished, and that there were discrepancies in the rulings between the second

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and third levels of review. Plaintiff has not stated a cognizable due process claim since

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no such rights exist relative to the administrative grievance process. Leave to amend

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would be futile and should be denied.

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F.

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To the extent that Plaintiff alleges Defendants violated the CCR, he does not state

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a cause of action. As the Court previously advised Plaintiff in the prior screening order,

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the existence of the CCR does not necessarily entitle an inmate to sue civilly, and leave

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to amend was denied on that basis. (ECF No. 11.)

California Code of Regulations and Prison Policies

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G.

Supervisory Liability

Government officials may not be held liable for the actions of their subordinates
under a theory of respondeat superior. Monell v. Dep’t of Soc. Servs., 436 U.S. 658,
691, 691 (1978). Since a government official cannot be held liable under a theory of
vicarious liability in § 1983 actions, Plaintiff must plead sufficient facts showing that the
official has violated the Constitution through his own individual actions by linking each
named Defendant with some affirmative act or omission that demonstrates a violation of
Plaintiff's federal rights. Iqbal, 556 U.S. at 676.
Liability may be imposed on supervisory defendants under § 1983 only if the
supervisor: (1) personally participated in the deprivation of constitutional rights or
directed the violations or (2) knew of the violations and failed to act to prevent them.
Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Taylor v. List, 880 F.2d 1040, 1045
(9th Cir. 1989).
Plaintiff alleges essentially that Defendants Stainer and Cate implemented
ineffective policies and insulated correctional officers from punishment.

These

allegations are insufficient to demonstrate that Defendants personally took some action
that violated Plaintiff’s constitutional rights, especially in light of the Court’s ruling on
Plaintiff’s claims against the subordinate Defendants. Plaintiff was advised of the
deficiencies in his claim in the Court’s prior screening order. Plaintiff’s failure to correct
them is reasonably construed as an inability to do so. Leave to amend would be futile
and should be denied.
H.

State Law Claims

Plaintiff alleges state law claims for negligence, failure to protect and be free from
cruel and unusual punishment, inhumane prison conditions, interference with his filing of
grievances and retaliation. As discussed above, Plaintiff has not stated a viable federal
claim in his First Amended Complaint.

Therefore, the Court will not exercise

supplemental jurisdiction over his state law claim. 28 U.S.C. § 1367(a); Herman Family

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Revocable Trust v. Teddy Bear, 254 F.3d 802, 805 (9th Cir. 2001).

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I.

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Plaintiff asks the Court to take judicial notice of sections of the California Code of
Regulations that he attaches to his Complaint as Exhibit D.

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Judicial Notice

Federal Rule of Evidence 201 authorizes the Court to take notice of facts that are
“not subject to reasonable dispute because . . . [they] can be accurately and readily
determined from sources whose accuracy cannot reasonably be questioned. Fed. R.
Evid. 201(a)-(b)(2).

This authority includes laws, city ordinances, and opinion

letters. See Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022,
1025 n.2 (9th Cir. 2006). The Court takes judicial notice of the documents.
V.

CONCLUSION AND RECOMMENDATIONS
Plaintiff’s First Amended Complaint does not state a claim upon which relief may

be granted. Plaintiff was advised in the prior screening order of deficiencies in his claims
and was given the opportunity to correct them. Plaintiff has failed to do so. Any further
leave to amend reasonably appears futile and should be DENIED. The Clerk should
send Plaintiff a copy of his First Amended Complaint filed on March 9, 2015 (ECF No.
14.) with this order.
The undersigned recommends that the action be dismissed with prejudice, that
dismissal count as a strike pursuant to 28 U.S.C. § 1915(g), and that the Clerk of the
Court terminate any and all pending motions and close the case.
These findings and recommendations will be submitted to the United States
District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. §
636(b)(1). Within fourteen (14) days after being served with the findings and
recommendations, the parties may file written objections with the Court. The document
should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.”
A party may respond to another party’s objections by filing a response within fourteen
(14) days after being served with a copy of that party’s objections. The parties are

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advised that failure to file objections within the specified time may result in the waiver of
rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter
v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.

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Dated:

April 28, 2015

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE
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