Howard v. Chapa, et al.

Filing 14

ORDER Dismissing Complaint and Granting Plaintiff Leave to File an Amended Complaint, signed by Magistrate Judge Gary S. Austin on 6/10/15. 30-Day Deadline. (Attachments: # 1 Amended Complaint Form)(Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Plaintiff,

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1:14-cv-00928 GSA PC

CHANDELL HOWARD,

ORDER DISMISSING COMPLAINT AND
GRANTING PLAINTIFF LEAVE TO FILE
AN AMENDED COMPLAINT

vs.
E. CHAPA, et al.,

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Defendants.

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AMENDED COMPLAINT DUE
IN THIRTY DAYS

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I.

Screening Requirement

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights

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action pursuant to 42 U.S.C. § 1983. Plaintiff has consented to magistrate judge jurisdiction

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pursuant to 28 U.S.C. § 636(c).1

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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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Plaintiff filed a consent to proceed before a magistrate judge on July 7, 2014

(ECF No 5).
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legally “frivolous 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). “Notwithstanding 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.”

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1915(e)(2)(B)(ii).

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II.

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28 U.S.C. §

Plaintiff’s Claims
Plaintiff, an inmate in the custody of the California Department of Corrections and

Rehabilitation (CDCR) at Pelican Bay State Prison, brings this action against defendant

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correctional officials employed by the CDCR at Kern Valley State Prison, where the events at

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issue occurred. Plaintiff names as defendants Correctional Officer (C/O) E. Chapa and the

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Warden. Plaintiff claims that Defendants failed to protect him and retaliated against him for

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filing a complaint about Chapa.

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Plaintiff’s complaint consists largely of conclusory allegations about the dangers of

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prison life, particularly the animosity between inmates of different ethnicities. Plaintiff’s

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specific allegation as to Defendant Chapa is that he referred to Plaintiff as a n****r in both

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Spanish and English. Plaintiff alleges that Chapa told the white inmates to stay away from

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Plaintiff. Plaintiff contends that, due to the fact that Chapa is in a position of authority and the

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nature of ethnic differences in prison, he has failed to protect Plaintiff in violation of the Eighth

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Amendment. Plaintiff further alleges that, after he filed a complaint regarding Chapa’s

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conduct, he was transferred to Pelican Bay. Plaintiff contends that this constitutes retaliation in

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violation of the First Amendment.

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A. Failure to Protect

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The Eighth Amendment imposes a duty on prison officials to protect inmates from

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violence at the hands of other inmates. Farmer v. Brennan, 511 U.S. 825, 844 (1994). A prison

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official violates this duty when two requirements are met. Id. at 834. First, objectively viewed,

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the prison official’s act or omission must cause “a substantial risk of serious harm.” Id.

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Second, the official must be subjectively aware of that risk and act with “deliberate indifference
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to inmate health or safety.” Id. at 834, 839-40 (internal quotation marks omitted). In other

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words, “the official must both be aware of facts from which the inference could be drawn that a

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substantial risk of serious harm exists, and he must also draw the inference.” Id. at 837.

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Deliberate indifference is “something more than mere negligence: but “something less than acts

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or omissions for the very purpose of causing harm or with knowledge that harm will result.”

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Id. at 835. A prison official’s deliberate indifference may be established through an “inference

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from circumstantial evidence” or “from the very fact that the risk was obvious.” Id. at 842.

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Here, Plaintiff has failed to allege facts that state a claim for relief. Plaintiff has not

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alleged any conduct on behalf of Defendant Chapa that threatened him with any specific harm.

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Chapa cannot be held liable based upon a generalized fear of ethnicity-based violence. That

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Chapa referred to Plaintiff using a racial epithet does not, of itself, state a claim for relief.

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Allegations of threats and harassment do not state a cognizable claim under 42 U.S.C. § 1983.

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See Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996)(assaultive comments by prison guard

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not enough to implicate Eighth Amendment); Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir.

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1987)(mere threat does not constitute constitutional wrong). Plaintiff’s allegations do not rise

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to the level of a constitutional violation. See 42 U.S.C. § 1997(e)(prisoners cannot bring civil

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suits in federal court for mental or emotional injuries suffered while incarcerated unless they

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first show that they suffered physical injury). Plaintiff must allege facts indicating that Chapa

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knew of a specific harm to Plaintiff and failed to protect Plaintiff from that harm, resulting in

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injury to Plaintiff.

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B.

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Retaliation
Allegations of retaliation against a prisoner’s First Amendment rights to speech

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or to petition the government may support a 1983 claim. Rizzo v. Dawson, 778 F.2d 5527, 532

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(9th Cir. 1985); see also Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989); Pratt v.

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Rowland, 65 F.3d 802, 807 (9th Cir. 1995). “Within the prison context, a viable claim of First

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Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some

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adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and that

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such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action
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did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559,

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567-68 (9th Cir. 2005); accord Watison v. Carter, 668 F.3d 1108, 1114-15 (9th Cir. 2012);

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Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009).

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An allegation of retaliation against a prisoner’s First Amendment right to file a prison

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grievance is sufficient to support a claim under section 1983. Bruce v. Ylst, 351 F.3d 1283,

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1288 (9th Cir. 2003). The Court must “‘afford appropriate deference and flexibility’ to prison

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officials in the evaluation of proffered legitimate penological reasons for conduct alleged to be

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retaliatory.” Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995)(quoting Sandin v. Conner, 515

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U.S. 472, 482 (1995)). The burden is on Plaintiff to demonstrate “that there were no legitimate

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correctional purposes motivating the actions he complains of.” Pratt, 65 F.3d at 808.
Plaintiff may not simply allege that he filed a grievance and then he was transferred,

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and infer that the transfer was retaliatory. Plaintiff fails to identify the specific individual that

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authorized the transfer, and Plaintiff fails to indicate what, if any, reason was communicated to

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him by correctional staff for the transfer. Presumable Defendant Chapa, a correctional officer,

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is not authorized to order transfers of inmates to other facilities. A simple allegation of a

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transfer does not state a claim for relief. Plaintiff must allege facts indicating who ordered the

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transfer, and facts indicating how that individual knew of Plaintiff’s complaint.

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C.

Supervisory Liability

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Plaintiff names as a defendant the Warden at Kern Valley. Government officials may

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not be held liable for the actions of their subordinates under a theory of respondeat superior.

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Ashcroft v. Iqbal , 556 U.S. 662, 673 (2009). Since a government official cannot be held liable

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under a theory of vicarious liability for section 1983 actions, Plaintiff must plead that the

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official has violated the Constitution through his own individual actions. Id. at 673. In other

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words, to state a claim for relief under section 1983, Plaintiff must link each named defendant

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with some affirmative act or omission that demonstrates a violation of Plaintiff’s federal rights.

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Plaintiff alleges not personal conduct as to the Warden. This defendant should therefore be

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dismissed.

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Plaintiff need not, however, set forth legal arguments in support of his claims. In order

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to hold an individual defendant liable, Plaintiff must name the individual defendant, describe

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where that defendant is employed and in what capacity, and explain how that defendant acted

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under color of state law. Plaintiff should state clearly, in his own words, what happened.

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Plaintiff must describe what each defendant, by name, did to violate the particular right

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described by Plaintiff.

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III.

Conclusion

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The Court has screened Plaintiff’s complaint and finds that it does not state any claims

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upon which relief may be granted under section 1983. The Court will provide Plaintiff with the

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opportunity to file an amended complaint curing the deficiencies identified by the Court in this

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order. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff is cautioned that he

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may not change the nature of this suit by adding new, unrelated claims in his amended

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complaint.

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Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but must state what

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each named defendant did that led to the deprivation of Plaintiff’s constitutional or other

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federal rights, Hydrick, 500 F.3d at 987-88.

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allegations must be [sufficient] to raise a right to relief above the speculative level . . . .” Bell

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Atlantic v. Twombly, 550 U.S. 544, 554 (2007)(citations omitted).

Although accepted as true, the “[f]actual

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Finally, Plaintiff is advised that an amended complaint supersedes the original

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complaint, Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814

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F.2d 565, 567 (9th Cir. 1987), and must be “complete and in and of itself without reference to

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the prior or superseded pleading.” Local Rule 15-220. Plaintiff is warned that “[a]ll causes of

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action alleged in an original complaint which are not alleged in an amended complaint are

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waived.” King, 814 F.2d at 567 (citing to London v. Coopers & Lybrand, 644 F.2d 811, 814

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(9th Cir. 1981)).

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Accordingly, IT IS HEREBY ORDERED that:

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1.

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Plaintiff’s complaint is dismissed, with leave to amend, for failure to state a

claim;
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The Clerk’s Office shall send to Plaintiff a complaint form;

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3.

Within thirty days from the date of service of this order, Plaintiff shall file an

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amended complaint;
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Plaintiff may not add any new, unrelated claims to this action via his amended

complaint and any attempt to do so will result in an order striking the amended complaint; and
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If Plaintiff fails to file an amended complaint, the Court will dismiss this action,

with prejudice, for failure to state a claim.

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IT IS SO ORDERED.
Dated:

June 10, 2015

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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