Hicks v. Gonzales
FINDINGS and RECOMMENDATIONS for Dismissal of Plaintiff's 8 Action for Failure to State a Claim; Objections Due within Thirty Days signed by Magistrate Judge Michael J. Seng on 12/23/2013. Referred to Judge Lawrence J. O'Neill. Objections to F&R due by 1/27/2014. (Sant Agata, S)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
DISMISSAL OF PLAINTIFF‟S ACTION
FOR FAILURE TO STATE A CLAIM
(ECF No. 8)
OBJECTIONS DUE WITHIN THIRTY
On March 15, 2013, Danny Hicks (“Plaintiff”), an individual proceeding pro se and in
forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. (ECF No. 1.)
The Court screened Plaintiff‟s initial Complaint and dismissed it for failure to state a
claim, but gave leave to amend. (ECF No. 7.) Plaintiff has since filed a First Amended
Complaint (Am. Compl., ECF No. 8), which is now before the Court for screening. No other
parties have appeared in this action.
The Court is required to screen complaints brought by prisoners seeking relief against a
governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a).
The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are
legally “frivolous or malicious,” 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 upon which relief may be granted.”
28 U.S.C. §
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
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual
10 matter, accepted as true, to „state a claim that is plausible on its face.‟” Iqbal, 556 U.S. at 678
11 (quoting Twombly, 550 U.S. at 555).
Facial plausibility demands more than the mere
12 possibility that a defendant committed misconduct and, while factual allegations are accepted
13 as true, legal conclusions are not. Iqbal, 556 U.S. at 678.
Plaintiff is currently housed at California State Prison in Corcoran, California. He was
16 previously housed at “Delano State Prison” in Delano, California, where the events alleged in
17 his Amended Complaint occurred.
Plaintiff alleges that the following individuals subjected him to severe emotional and
19 psychological trauma: 1) Correctional Officer Gonzales, correctional officer at Delano State
20 Prison, 2) appeals coordinator at Delano State Prison on the Facility „D‟ yard, 3) captain on
21 Facility „D‟ yard, and 4) the warden of Delano State Prison.
Plaintiff‟s allegations are summarized as follows:
When Plaintiff was in line for his medications on October 11, 2012, Defendant Gonzales
24 asked another inmate of a different race than Plaintiff to stab Plaintiff. Defendant Gonzales
25 told the inmate he would provide the inmate with a knife.
26 mentally traumatized by this incident.
Plaintiff was emotionally and
Plaintiff asks for compensatory and punitive damages.
A. 42 U.S.C. § 1983 Claims
42 U.S.C. § 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). § 1983 is not itself
a source of substantive rights, but merely provides a method for vindicating federal rights
conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989).
To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a
10 right secured by the Constitution or laws of the United States was violated, and (2) that the
11 alleged violation was committed by a person acting under the color of state law. See West v.
12 Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir.
Under § 1983, Plaintiff must demonstrate that each named defendant personally
participated in the deprivation of his rights. Ashcroft v. Iqbal, 556 U.S. 662, 676-77 (2009);
Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of
Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones v. Williams, 297 F.3d 930, 934 (9th Cir.
2002). Liability may not be imposed on supervisory personnel under the theory of respondeat
19 superior, as each defendant is only liable for his or her own misconduct. Iqbal, 556 U.S. at
20 676-77; Ewing, 588 F.3d at 1235. Supervisors may only be held liable if they “participated in
21 or directed the violations, or knew of the violations and failed to act to prevent them.” Taylor v.
List, 880 F.2d 1040, 1045 (9th Cir. 1989); accord Starr v. Baca, 652 F.3d 1202, 1205-08 (9th
Cir. 2011); Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009); Preschooler II v. Clark
County School Board of Trustees, 479 F.3d 1175, 1182 (9th Cir. 2007); Harris v. Roderick, 126
F.3d 1189, 1204 (9th Cir. 1997).
Plaintiff has failed to link the appeals coordinator at Delano State Prison, the captain on
26 Facility „D‟ yard, or the warden of Delano State Prison to any alleged wrongdoing in his first
Amended complaint. In order to state a claim against these Defendants, Plaintiff should have
alleged how each of them personally participated in a deprivation of his rights. Plaintiff has
now twice failed to do this despite having been instructed of the need to do so and having
been given the opportunity to do so. No useful purpose would be served by instructing him
once again and giving him a third opportunity to correct the omission. He will not be given
leave to amend as to these purported Defendants.
C. Eighth Amendment Claim
Plaintiff again fails to allege any statutory basis for his claims against Defendant
Gonzales. His allegations appear best characterized as an Eighth Amendment conditions of
The Court previously provided him with the standard for an Eighth
10 Amendment conditions of confinement claim.
(ECF No. 7.)
The Court will analyze the
11 amended Complaint under that standard.
“[A] prison official may be held liable under the Eighth Amendment for denying humane
13 conditions of confinement only if he knows that inmates face a substantial risk of serious harm
14 and disregards that risk by failing to take reasonable measures to abate it.”
15 Brennan, 511 U.S. 825, 847 (1994). Prison officials are required to take reasonable measures
16 to guarantee the safety of inmates and officials have a duty to protect prisoners from violence
17 at the hands of other prisoners. Farmer, 511 U.S. at 832–33; Frost v. Agnos, 152 F.3d 1124,
18 1128 (9th Cir. 1998). An inmate has no constitutional right, however, to enjoy a particular
19 security classification or housing. See Meachum v. Fano, 427 U.S. 215, 224–25 (1976) (no
20 liberty interest protected by the Due Process Clause is implicated in a prison's reclassification
21 and transfer decisions); see also Myron v. Terhune, 476 F.3d 716, 718 (9th Cir. 2007).
22 Further, “[v]erbal harassment or abuse ... is not sufficient to state a constitutional deprivation[.]”
23 Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987) (quoting Collins v. Cundy, 603 F.2d
24 825 (10th Cir. 1979)).
Rather, to state a claim for threats to safety, an inmate must allege facts to support that
26 he was incarcerated under conditions posing a substantial risk of harm and that prison officials
were “deliberately indifferent” to those risks. Farmer, 511 U.S. at 834; Frost, 152 F.3d at 1128;
Redman v. County of Los Angeles, 942 F.2d 1435, 1443 (9th Cir. 1991) (en banc).
adequately allege deliberate indifference, a plaintiff must set forth facts to support that a
defendant knew of, but disregarded, an excessive risk to inmate safety. Farmer, 511 U.S. at
837. That is, “the official must both [have been] aware of facts from which the inference could
be drawn that a substantial risk of serious harm exist[ed], and he must also [have] draw[n] the
inference.” Farmer, 511 U.S. at 837; Frost, 152 F.3d at 1128; Redman, 942 F.2d at 1442.
To determine whether the alleged use of force was excessive, this court must assess
the following factors: “(1) the need for the application of force, (2) the relationship between the
10 need and amount of force that was used, (3) the extent of the injury inflicted, and (4) whether
11 force was applied in a good faith effort to maintain and restore discipline.” White v. Roper, 901
12 F.2d 1501, 1507 (9th Cir. 1990). In the context of a facility disturbance, “the question of
13 whether the measure taken inflicted unnecessary and wanton pain and suffering ultimately
14 turns on „whether force was applied in a good faith effort to maintain or restore discipline or
15 maliciously and sadistically for the very purpose of causing harm.‟” Hudson v. McMillian, 503
16 U.S. 1, 6 (1992) (quoting Whitley v. Albers, 475 U.S. 312, 320B21 (1986)).
Plaintiff has again failed to allege a “conditions of confinement” claim, or any other
18 conceivable claim, against Defendant Gonzales. He alleges that Defendant Gonzales told
19 other inmates of a different race than Plaintiff to stab Plaintiff. Though of course reprehensible
20 if true, there is no indication that the comment ever reached the level of an actual and serious
21 threat to Plaintiff‟s safety. Despite the Court‟s previous direction and invitation to Plaintiff to
22 provide information that demonstrated Plaintiff was faced with an actual, serious threat that put
23 him at risk (and not just an ill-advised facetious or mean-spirited comment), Plaintiff has not
24 done so here.
Instead of including additional facts, Plaintiff simply added additional
25 defendants to his claim. Plaintiff will not be given further leave to amend this claim.
CONCLUSION AND RECOMMENDATION
Plaintiff‟s First Amended Complaint fails to state any claims upon which relief may be
granted under section 1983. Plaintiff was previously notified of the deficiencies in his claims
and given leave to amend. Based on the nature of the deficiencies at issue, the Court finds
that further leave to amend is not warranted. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir.
2000); Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987).
Accordingly, the Court HEREBY RECOMMENDS that Plaintiff‟s action be dismissed for
failure to state any claims under 42 U.S.C. § 1983.
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)(l). Within
10 thirty (30) days after being served with these Findings and Recommendations, Plaintiff may file
11 written objections with the Court.
The document should be captioned “Objections to
Magistrate Judge‟s Findings and Recommendations.” Plaintiff is advised that failure to file
objections within the specified time may waive the right to appeal the District Court‟s order.
Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
16 IT IS SO ORDERED.
December 23, 2013
UNITED STATES MAGISTRATE JUDGE
Michael J. Seng
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