Foster v. Akin et al

Filing 8

ORDER Dismissing Complaint with Leave to Amend, signed by Magistrate Judge Michael J. Seng on 9/29/14. 30-Day Deadline. (Attachments: # 1 Amended Complaint Form)(Verduzco, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL L. FOSTER, 12 Plaintiff, 13 14 CASE NO. 1:14-cv-1222-MJS (PC) ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND v. (ECF NO. 1) T. AKIN, et al., 15 Defendants. AMENDED COMPLAINT DUE WITHIN THIRTY (30) DAYS 16 17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil 18 19 rights action brought pursuant to 42 U.S.C. § 1983. His complaint is now before the Court for screening. 20 21 I. SCREENING REQUIREMENT 22 The Court is required to screen complaints brought by prisoners seeking relief 23 against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 24 § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has 25 raised claims that are legally “frivolous, malicious,” or that fail to state a claim upon which 26 relief may be granted, or that seek monetary relief from a defendant who is immune from 27 such relief. 28 U.S.C. § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion 28 1 thereof, that may have been paid, the court shall dismiss the case at any time if the court 2 determines that . . . the action or appeal . . . fails to state a claim upon which relief may 3 be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 4 II. PLEADING STANDARD 5 Section 1983 “provides a cause of action for the deprivation of any rights, 6 privileges, or immunities secured by the Constitution and laws of the United States.” 7 Wilder v. Virginia Hosp. Ass‟n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). 8 Section 1983 is not itself a source of substantive rights, but merely provides a method for 9 vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 10 (1989). 11 To state a claim under § 1983, a plaintiff must allege two essential elements: (1) 12 that a right secured by the Constitution or laws of the United States was violated and (2) 13 that the alleged violation was committed by a person acting under the color of state law. 14 See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 15 1245 (9th Cir. 1987). 16 A complaint must contain “a short and plain statement of the claim showing that 17 the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations 18 are not required, but “[t]hreadbare recitals of the elements of a cause of action, 19 supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 20 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 21 Plaintiff must set forth “sufficient factual matter, accepted as true, to state a claim to relief 22 that is plausible on its face.” Id. Facial plausibility demands more than the mere 23 possibility that a defendant committed misconduct and, while factual allegations are 24 accepted as true, legal conclusions are not. Id. at 677-78. 25 III. PLAINTIFF’S ALLEGATIONS 26 Plaintiff complains of acts that occurred during his incarceration at California 27 Substance Abuse Treatment Facility (“CSATF”) in Corcoran, California. He names the 28 2 1 following individuals as Defendants in their individual and official capacities: (1) John 2 Doe No. 1, Director of the California Department of Corrections and Rehabilitation 3 (“CDCR”); (2) John Doe No. 2, CSATF Warden; (3) D. Goss, CSATF Correctional 4 Lieutenant; (4) John Doe No. 3, CSATF Correctional Lieutenant; (5) John Doe Nos. 4 5 and 5, CSATF Associate Wardens; (6) R. Tolson, CSATF Correctional Captain and 6 Associate Warden; (7) T. Akin, CSATF Correctional Lieutenant; and (8) J. Garza, 7 CSATF Correctional Officer. 8 Plaintiff‟s allegations can be summarized essentially as follows: 9 On Sunday, March 3, 2013, Plaintiff was playing cards at a table in the recreation 10 area of the Sensitive Needs Yard (“SNY”) when an inmate named Lopez came up 11 behind him, hit him in the jaw, and knocked him unconscious. Lopez also repeatedly 12 kicked Plaintiff while Plaintiff was on the ground. As a result, Plaintiff suffered a broken 13 mandible and had two steel plates implanted in his mouth. 14 Prior to this incident, Defendants Goss, Tolson, Akin and Does Nos. 3, 4 and 5 15 validated inmates Lopez, Montez, Crane, and Cervantes as members or associates of a 16 SNY disruptive group called “2-5.” These inmates were deemed to be a threat to the 17 safety and security of the institution, but were not immediately removed from the SNY 18 general population, in violation of Title 15 of the California Code of Regulations. 19 Defendants‟ failure to remove the validated inmates from the general population resulted 20 in the assault on Plaintiff. 21 Defendant Doe No. 2 carried out a policy and practice of allowing members of the 22 2-5 disruptive group to remain in the general population. Defendant Does Nos. 1 and 2 23 ignored assaults on inmates by members of the group prior to the March 3, 2013, 24 incident involving Plaintiff. Defendant Does Nos. 1 and 2 also failed to train staff to 25 relocate validated inmates to the Segregated Housing Unit, as required by Title 15. 26 Defendant Garza allowed inmate Lopez access to the recreation yard on March 3, 27 2013, immediately prior to the incident involving Plaintiff. Garza knew Lopez had been 28 3 1 validated and was a “C over C status inmate” who was not permitted in the recreation 2 yard on weekends. Garza saw Lopez headed away from Lopez‟s housing unit, but did 3 order Lopez to return to his housing. 4 Plaintiff alleges that Defendants‟ failure to protect against the assault constituted 5 cruel and unusual punishment in violation of the Eighth Amendment to the United States 6 Constitution. Plaintiff seeks compensatory and punitive damages. 7 IV. ANALYSIS 8 A. Official Capacity 9 Plaintiff names each defendant in their individual and official capacities. 10 “Official capacity” suits require that a policy or custom of the governmental entity 11 is the moving force behind the violation. McRorie v. Shimoda, 795 F.2d 780, 783 (9th 12 Cir. 1986). Plaintiff has raised official capacity allegations against Defendant Does Nos. 13 1 and 2 based on their failure to train, supervise, implement policy, and prevent 14 constitutional violations. He has not raised official capacity allegations against any other 15 defendant. 16 However, Plaintiff seeks only money damages as a remedy. Plaintiff cannot 17 recover money damages from state officials in their official capacities. Aholelei v. Dept. 18 of Public Safety, 488 F.3d 1144, 1147 (9th Cir. 2007) (citations omitted). Official capacity 19 suits may seek only prospective relief. See Wolfson v. Brammer, 616 F.3d 1045, 1065- 20 66 (9th Cir. 2010). 21 Because Plaintiff seeks only damages, he does not state a cognizable claim 22 against Defendants in their official capacities. Plaintiff will be given leave to amend. If he 23 chooses to do so, he may seek only prospective relief against defendants named in their 24 official capacities. Any such allegations must be based on the governmental entity‟s 25 policy or custom. 26 /// 27 /// 28 4 1 2 B. Supervisory Liability 3 Under § 1983, Plaintiff must demonstrate that each named defendant personally 4 participated in the deprivation of his rights. Iqbal, 556 U.S. 662, 676-77 (2009); Simmons 5 v. Navajo Cnty., Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 6 588 F.3d 1218, 1235 (9th Cir. 2009); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 7 2002). Liability may not be imposed on supervisory personnel under the theory of 8 respondeat superior, as each defendant is only liable for his or her own misconduct. 9 Iqbal, 556 U.S. at 676-77; Ewing, 588 F.3d at 1235. Supervisors may only be held liable 10 if they “participated in or directed the violations, or knew of the violations and failed to act 11 to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); accord Starr v. 12 Baca, 652 F.3d 1202, 1205-08 (9th Cir. 2011); Corales v. Bennett, 567 F.3d 554, 570 13 (9th Cir. 2009); Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1182 (9th 14 Cir. 2007); Harris v. Roderick, 126 F.3d 1189, 1204 (9th Cir. 1997). 15 Defendants may only be held liable for their own misconduct. Plaintiff must show 16 that each Defendant participated in the violations, or knew of the violations and failed to 17 act. As described below, he has failed to do so. Plaintiff will be given leave to amend. 18 C. Failure to protect 19 The Eighth Amendment protects prisoners from inhumane methods of 20 punishment and inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 21 1041, 1045 (9th Cir. 2006). Prison officials must provide prisoners with personal safety. 22 Toussaint v. McCarthy, 801 F.2d 1080, 1107 (9th Cir. 1986), overruled on other grounds 23 by Sandin v. Conner, 515 U.S. 472, 481 (1995). Thus, prison officials have a duty to 24 protect prisoners from violence at the hands of other prisoners. Farmer v. Brennan, 511 25 U.S. 825, 833 (1994) (citation omitted). “The failure of prison officials to protect inmates 26 from attacks by other inmates may rise to the level of an Eighth Amendment violation 27 when: (1) the deprivation alleged is objectively, sufficiently serious and, (2) the prison 28 5 1 officials had a sufficiently culpable state of mind, acting with deliberate indifference.” 2 Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005) (internal quotations and citation 3 omitted). 4 Deliberate indifference is a high legal standard. Toguchi v. Chung, 391 F.3d 1051, 5 1060 (9th Cir. 2004). To allege deliberate indifference, the plaintiff must allege facts 6 sufficient to support a claim that prison officials knew of and disregarded a substantial 7 risk of serious harm. Farmer, 511 U.S. at 847. Where the alleged violation involves an 8 assault by another inmate, “[t]he standard does not require that the guard or official 9 believe to a moral certainty that one inmate intends to attack another at a given place at 10 a time certain before that officer is obligated to take steps to prevent such an assault.” 11 Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986) (internal quotations and citation 12 omitted). However, “he must have more than a mere suspicion that an attack will occur.” 13 Id. (citation omitted). 14 Plaintiff has not alleged facts to indicate that any named Defendant was aware 15 that inmate Lopez posed a specific threat to Plaintiff.1 Thus, Plaintiff does not allege 16 facts to support a claim that Defendants knowingly failed to protect him from harm in 17 violation of the Eighth Amendment. 18 If Plaintiff chooses to amend, he must allege facts showing Defendants' knowing 19 disregard of a substantial risk of serious harm to Plaintiff. He must describe the risk, 20 explain how it arose and how Defendants were made aware of it, and how its threat grew 21 into an actual risk of harm, and then harm, to Plaintiff. 22 D. 23 A supervisor's failure to train subordinates may give rise to individual liability 24 under § 1983 where the failure amounts to deliberate indifference to the rights of 25 persons with whom the subordinates are likely to come into contact. Canell v. Lightner, 26 27 28 Failure to train 1 Plaintiff also alleges that three other inmates – Montez, Crane, and Cervantes – were validated as members or associates of the 2-5 disruptive group. However, he does not allege that these inmates participated in the attack or posed a specific threat to Plaintiff. Accordingly, he does not state a cognizable claim with regard to Defendants‟ failure to protect him from these inmates. 6 1 143 F.3d 1210, 1213-14 (9th Cir. 1998). To impose liability under this theory, a plaintiff 2 must demonstrate that the subordinate‟s training was inadequate, that the inadequate 3 training was a deliberate choice on the part of the supervisor, and that the inadequate 4 training caused a constitutional violation. Id. at 1214. See also City of Canton v. Harris, 5 489 U.S. 378, 387-90 (1989); Lee v. City of Los Angeles, 250 F.3d 668, 681 (9th Cir. 6 2001). 7 Plaintiff alleges that Defendant Does Nos. 1 and 2 failed to train the other 8 defendants, but does not allege facts that suggest these Defendants deliberately 9 provided inadequate training, policies and supervision for the purpose of creating a 10 constitutional violation. Plaintiff will be given leave to amend. 11 E. California Regulations 12 To the extent Plaintiff wishes to allege violations of Title 15 of the California Code 13 of Regulations governing conduct of prison officials, the existence of the Title 15 14 regulations does not necessarily entitle an inmate to sue civilly for their violation. The 15 Court has found no authority to support a finding of an implied private right of action 16 under Title 15, and Plaintiff has provided none. Several district court decisions hold that 17 there is no such right. See e.g., Vasquez v. Tate, No. 1:10-cv-1876-JLT (PC), 2012 WL 18 6738167, at *9 (E.D. Cal. Dec. 28, 2012); Davis v. Powell, 901 F. Supp. 2d 1196, 1211 19 (S.D. Cal. 2012). 20 Plaintiff may not bring an independent claim solely for violation of prison 21 regulations set out in Title 15. Leave to amend such a claim is futile and will be denied 22 on that basis. 23 V. CONCLUSION AND ORDER 24 Plaintiff‟s Complaint does not state a claim for relief. The Court will grant Plaintiff 25 an opportunity to file an amended complaint. Noll v. Carlson, 809 F.2d 1446, 1448-49 26 (9th Cir. 1987). If Plaintiff opts to amend, he must demonstrate that the alleged acts 27 resulted in a deprivation of his constitutional rights. Iqbal, 556 U.S. at 677-78. Plaintiff 28 7 1 must set forth “sufficient factual matter . . . to „state a claim that is plausible on its face.‟” 2 Id. at 678 (quoting Twombly, 550 U.S. at 555 (2007)). Plaintiff must also demonstrate 3 that each named Defendant personally participated in a deprivation of his rights. Jones 4 v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). 5 Plaintiff should note that although he has been given the opportunity to amend, it 6 is not for the purposes of adding new claims. George v. Smith, 507 F.3d 605, 607 (7th 7 Cir. 2007). Plaintiff should carefully read this Screening Order and focus his efforts on 8 curing the deficiencies set forth above. 9 Finally, Plaintiff is advised that Local Rule 220 requires that an amended 10 complaint be complete in itself without reference to any prior pleading. As a general rule, 11 an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 12 55, 57 (9th Cir. 1967). Once an amended complaint is filed, the original complaint no 13 longer serves any function in the case. Therefore, in an amended complaint, as in an 14 original complaint, each claim and the involvement of each defendant must be 15 sufficiently alleged. The amended complaint should be clearly and boldly titled “First 16 Amended Complaint,” refer to the appropriate case number, and be an original signed 17 under penalty of perjury. Plaintiff's amended complaint should be brief. Fed. R. Civ. P. 18 8(a). Although accepted as true, the “[f]actual allegations must be [sufficient] to raise a 19 right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555 (citations 20 omitted). 21 Accordingly, it is HEREBY ORDERED that: 22 1. 23 24 25 26 The Clerk‟s Office shall send Plaintiff (1) a blank civil rights complaint form and (2) a copy of his complaint, filed August 4, 2014; 2. Plaintiff‟s complaint (ECF No. 1) is DISMISSED for failure to state a claim upon which relief may be granted; 3. Plaintiff shall file an amended complaint within thirty (30) days; and 27 28 8 1 4. If Plaintiff fails to file an amended complaint in compliance with this order, 2 the Court will dismissed this action, with prejudice, for failure to state a claim and failure 3 to comply with a court order. 4 5 6 IT IS SO ORDERED. Dated: September 29, 2014 /s/ 7 Michael J. Seng UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9

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