Fernandez v. Lopez et al
Filing
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ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND signed by Magistrate Judge Dennis L. Beck on 03/11/2015. Amended Complaint due by 4/13/2015. (Attachments: # 1 Amended Complaint Form)(Flores, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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KENNY FERNANDEZ,
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Plaintiff,
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Case No. 1:14-cv-00596 LJO DLB PC
ORDER DISMISSING COMPLAINT
WITH LEAVE TO AMEND
v.
THIRTY-DAY DEADLINE
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J. LOPEZ, et al.,
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Defendants.
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Plaintiff Kenny Fernandez (“Plaintiff”) is a state prisoner proceeding pro se and in forma
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pauperis in this civil action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on April 24,
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2014. He names Correctional Officers J. Lopez, R. Garcia, Sergeant S. Perez Jr., Lieutenant Ford,
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and Captain Kibler as Defendants.
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A.
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SCREENING REQUIREMENT
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). The
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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally
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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek
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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).
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“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall
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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. § 1915(e)(2)(B)(ii).
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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, 129 S. Ct. 1937, 1949 (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 that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 555). While factual
allegations are accepted as true, legal conclusions are not. Id.
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Section 1983 provides a cause of action for the violation of Plaintiff’s constitutional or other
federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 1087, 1092
(9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); Jones v.
Williams, 297 F.3d 930, 934 (9th Cir. 2002). Plaintiff’s allegations must link the actions or
omissions of each named defendant to a violation of his rights; there is no respondeat superior
liability under section 1983. Iqbal, 556 U.S. at 676-77; 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, 297 F.3d at 934. Plaintiff must present factual allegations sufficient to state a plausible claim
for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).
The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 556 U.S.
at 678; Moss, 572 F.3d at 969.
B.
SUMMARY OF PLAINTIFF’S ALLEGATIONS
Plaintiff is currently housed at Correctional Training Facility in Soledad, California. He was
incarcerated at Wasco State Prison when the events giving rise to this action took place.
Plaintiff alleges the following. On June 23, 2013, Plaintiff was housed on the upper tier of
Facility B, Building 4, B-Side, along with other General Population (“GP”) inmates. The bottom tier
housed Sensitive Needs (“SNY”) inmates. While Plaintiff and other GP inmates were eating
breakfast in the dayroom, Defendant Lopez opened the cell doors of the SNY inmates. Defendant
Garcia was working in the same building. Defendant Lopez had told Defendant Garcia that he had
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enough bullets for everyone. When the cell doors opened, Plaintiff was attacked by SNY inmates.
He suffered a punctured eardrum. Defendant Perez was called in after the incident happened.
Plaintiff alleges that Lieutenant Ford and Captain Kibler had planned it out that this incident would
happen.
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Plaintiff complains of staff negligence and misconduct. As a result of the personal injuries,
emotional distress and future medical attention he suffered, he asks for money damages in the
amount of three million dollars.
C.
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1.
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DISCUSSION
Eighth Amendment Failure to Protect
Under section 1983, Plaintiff must link the named defendants to the participation in the
violation at issue. Iqbal, 556 U.S. at 676-77; 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, 297
F.3d at 934. Liability may not be imposed on supervisory personnel under the theory of respondeat
superior, Iqbal, 556 U.S. at 676-77; Simmons, 609 F.3d at 1020-21; Ewing, 588 F.3d at 1235; Jones,
297 F.3d at 934, and administrators or supervisors, such as Defendants Perez, Ford, and Kibler, may
only be held liable if they “participated in 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), cert. denied, 132 S.Ct. 2101 (2012); 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). Some culpable action or inaction must be attributable to each defendant for liability to lie.
Starr, 652 F.3d at 1205; Jeffers v. Gomez, 267 F.3d 895, 914-15 (9th Cir. 2001); Redman v. County
of San Diego, 942 F.2d 1435, 1446-47 (9th Cir. 1991); Hansen v. Black, 885 F.2d 642, 646 (9th Cir.
1989).
The Eighth Amendment’s prohibition against cruel and unusual punishment protects
prisoners not only from inhumane methods of punishment but also from inhumane conditions of
confinement.
Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006) (citing Farmer v.
Brennan, 511 U.S. 825, 847, 114 S.Ct. 1970 (1994) and Rhodes v. Chapman, 452 U.S. 337, 347, 101
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S.Ct. 2392 (1981)) (quotation marks omitted). While conditions of confinement may be, and often
are, restrictive and harsh, they must not involve the wanton and unnecessary infliction of pain.
Morgan, 465 F.3d at 1045 (citing Rhodes, 452 U.S. at 347) (quotation marks omitted).
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Prison officials have a duty to ensure that prisoners are provided adequate shelter, food,
clothing, sanitation, medical care, and personal safety, Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir.
2000) (quotation marks and citations omitted), but not every injury that a prisoner sustains while in
prison represents a constitutional violation, Morgan, 465 F.3d at 1045 (quotation marks omitted). To
maintain an Eighth Amendment claim, inmates must show deliberate indifference to a substantial
risk of harm to their health or safety. E.g., Farmer, 511 U.S. at 847; Thomas v. Ponder, 611 F.3d
1144, 1151-52 (9th Cir. 2010); Foster v. Runnels, 554 F.3d 807, 812-14 (9th Cir. 2009); Morgan,
465 F.3d at 1045; Johnson, 217 F.3d at 731; Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998).
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Plaintiff’s vague allegations do not support a claim against any Defendant for violation of the
Eighth Amendment. With respect to Defendants Garcia and Lopez, Plaintiff states only that they
released SNY prisoners from their cells while GP prisoners were eating breakfast, and an attack
ensued. Plaintiff alleges no facts demonstrating (1) the existence of a substantial risk of harm either
to Plaintiff’s safety or to the safety of all inmates on the yard (2) which was knowingly disregarded
by Defendants Garcia and Lopez. Farmer, 511 U.S. at 835.
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As to Defendant Perez, Plaintiff states only that Perez appeared on the scene after the attack
had already occurred. Thus, Plaintiff fails to show how Defendant Perez failed to protect him from a
substantial risk of harm.
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As to Defendants Ford and Kibler, Plaintiff merely concludes that they planned the incident.
This vague allegation is insufficient to establish that Defendants “participated in or directed the
violations, or knew of the violations and failed to act to prevent them.” Taylor, 880 F.2d at 1045. As
discussed above, Plaintiff sets forth no facts establishing a violation of the Eighth Amendment.
D.
CONCLUSION AND ORDER
Plaintiff’s complaint fails to state a claim upon which relief may be granted under section
1983. The Court will provide Plaintiff with an opportunity to file an amended complaint. Akhtar v.
Mesa, 698 F.3d 1202, 1212-13 (9th Cir. 2012); Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).
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Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but it must state what
each named Defendant did that led to the deprivation of Plaintiff’s federal rights and liability may
not be imposed on supervisory personnel under the theory of mere respondeat superior, Iqbal, 556
U.S. at 676-77; Starr v. Baca, 652 F.3d 1202, 1205-07 (9th Cir. 2011), cert. denied, 132 S.Ct. 2101
(2012). Although accepted as true, the “[f]actual allegations must be [sufficient] to raise a right to
relief above the speculative level. . . .” Twombly, 550 U.S. at 555 (citations omitted).
Finally, an amended complaint supercedes the original complaint, Lacey v. Maricopa
County, 693 F.3d 896, 907 n.1 (9th Cir. 2012) (en banc), and it must be “complete in itself without
reference to the prior or superceded pleading,” Local Rule 220.
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ORDER
Accordingly, it is HEREBY ORDERED that:
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Plaintiff’s complaint is dismissed, with leave to amend, for failure to state a claim
under section 1983;
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The Clerk’s Office shall send Plaintiff a civil rights complaint form;
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Within thirty (30) days from the date of service of this order, Plaintiff shall file an
amended complaint; and
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If Plaintiff fails to file an amended complaint in compliance with this order, this
action will be dismissed, with prejudice, for failure to state a claim.
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IT IS SO ORDERED.
Dated:
/s/ Dennis
March 11, 2015
L. Beck
UNITED STATES MAGISTRATE JUDGE
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