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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MICHAEL L. FOSTER,

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Plaintiff,

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CASE NO. 1:14-cv-1222-MJS (PC)
ORDER DISMISSING COMPLAINT WITH
LEAVE TO AMEND

v.
(ECF NO. 1)
T. AKIN, et al.,

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Defendants.

AMENDED COMPLAINT DUE WITHIN
THIRTY (30) DAYS

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

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rights action brought pursuant to 42 U.S.C. § 1983.
His complaint is now before the Court for screening.

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I.

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

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raised claims that are legally “frivolous, malicious,” or that fail to state a claim upon which

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relief may be granted, or that seek monetary relief from a defendant who is immune from

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such relief. 28 U.S.C. § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion

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thereof, that may have been paid, the court shall dismiss the case at any time if the court

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determines that . . . the action or appeal . . . fails to state a claim upon which relief may

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be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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II.

PLEADING STANDARD

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Section 1983 “provides a cause of action for the deprivation of any rights,

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privileges, or immunities secured by the Constitution and laws of the United States.”

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Wilder v. Virginia Hosp. Ass‟n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983).

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Section 1983 is not itself a source of substantive rights, but merely provides a method for

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vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94

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(1989).

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To state a claim under § 1983, a plaintiff must allege two essential elements: (1)

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that a right secured by the Constitution or laws of the United States was violated and (2)

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that the alleged violation was committed by a person acting under the color of state law.

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See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243,

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1245 (9th Cir. 1987).

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A complaint must contain “a short and plain statement of the claim showing that

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the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations

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are not required, but “[t]hreadbare recitals of the elements of a cause of action,

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supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S.

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662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

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Plaintiff must set forth “sufficient factual matter, accepted as true, to state a claim to relief

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that is plausible on its face.” Id. Facial plausibility demands more than the mere

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possibility that a defendant committed misconduct and, while factual allegations are

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accepted as true, legal conclusions are not. Id. at 677-78.

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III.

PLAINTIFF’S ALLEGATIONS

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Plaintiff complains of acts that occurred during his incarceration at California

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Substance Abuse Treatment Facility (“CSATF”) in Corcoran, California. He names the

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following individuals as Defendants in their individual and official capacities: (1) John

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Doe No. 1, Director of the California Department of Corrections and Rehabilitation

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(“CDCR”); (2) John Doe No. 2, CSATF Warden; (3) D. Goss, CSATF Correctional

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Lieutenant; (4) John Doe No. 3, CSATF Correctional Lieutenant; (5) John Doe Nos. 4

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and 5, CSATF Associate Wardens; (6) R. Tolson, CSATF Correctional Captain and

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Associate Warden; (7) T. Akin, CSATF Correctional Lieutenant; and (8) J. Garza,

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CSATF Correctional Officer.

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Plaintiff‟s allegations can be summarized essentially as follows:

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On Sunday, March 3, 2013, Plaintiff was playing cards at a table in the recreation

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area of the Sensitive Needs Yard (“SNY”) when an inmate named Lopez came up

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behind him, hit him in the jaw, and knocked him unconscious. Lopez also repeatedly

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kicked Plaintiff while Plaintiff was on the ground. As a result, Plaintiff suffered a broken

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mandible and had two steel plates implanted in his mouth.

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Prior to this incident, Defendants Goss, Tolson, Akin and Does Nos. 3, 4 and 5

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validated inmates Lopez, Montez, Crane, and Cervantes as members or associates of a

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SNY disruptive group called “2-5.” These inmates were deemed to be a threat to the

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safety and security of the institution, but were not immediately removed from the SNY

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general population, in violation of Title 15 of the California Code of Regulations.

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Defendants‟ failure to remove the validated inmates from the general population resulted

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in the assault on Plaintiff.

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Defendant Doe No. 2 carried out a policy and practice of allowing members of the

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2-5 disruptive group to remain in the general population. Defendant Does Nos. 1 and 2

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ignored assaults on inmates by members of the group prior to the March 3, 2013,

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incident involving Plaintiff. Defendant Does Nos. 1 and 2 also failed to train staff to

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relocate validated inmates to the Segregated Housing Unit, as required by Title 15.

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Defendant Garza allowed inmate Lopez access to the recreation yard on March 3,

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2013, immediately prior to the incident involving Plaintiff. Garza knew Lopez had been

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validated and was a “C over C status inmate” who was not permitted in the recreation

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yard on weekends. Garza saw Lopez headed away from Lopez‟s housing unit, but did

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order Lopez to return to his housing.

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Plaintiff alleges that Defendants‟ failure to protect against the assault constituted

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cruel and unusual punishment in violation of the Eighth Amendment to the United States

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Constitution. Plaintiff seeks compensatory and punitive damages.

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IV.

ANALYSIS

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A.

Official Capacity

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Plaintiff names each defendant in their individual and official capacities.

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“Official capacity” suits require that a policy or custom of the governmental entity

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is the moving force behind the violation. McRorie v. Shimoda, 795 F.2d 780, 783 (9th

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Cir. 1986). Plaintiff has raised official capacity allegations against Defendant Does Nos.

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1 and 2 based on their failure to train, supervise, implement policy, and prevent

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constitutional violations. He has not raised official capacity allegations against any other

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defendant.

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However, Plaintiff seeks only money damages as a remedy. Plaintiff cannot

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recover money damages from state officials in their official capacities. Aholelei v. Dept.

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of Public Safety, 488 F.3d 1144, 1147 (9th Cir. 2007) (citations omitted). Official capacity

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suits may seek only prospective relief. See Wolfson v. Brammer, 616 F.3d 1045, 1065-

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66 (9th Cir. 2010).

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Because Plaintiff seeks only damages, he does not state a cognizable claim

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against Defendants in their official capacities. Plaintiff will be given leave to amend. If he

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chooses to do so, he may seek only prospective relief against defendants named in their

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official capacities. Any such allegations must be based on the governmental entity‟s

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policy or custom.

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B.

Supervisory Liability

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Under § 1983, Plaintiff must demonstrate that each named defendant personally

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participated in the deprivation of his rights. Iqbal, 556 U.S. 662, 676-77 (2009); Simmons

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v. Navajo Cnty., Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton,

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588 F.3d 1218, 1235 (9th Cir. 2009); Jones v. Williams, 297 F.3d 930, 934 (9th Cir.

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2002). Liability may not be imposed on supervisory personnel under the theory of

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respondeat superior, as each defendant is only liable for his or her own misconduct.

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Iqbal, 556 U.S. at 676-77; Ewing, 588 F.3d at 1235. Supervisors may only be held liable

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if they “participated in or directed the violations, or knew of the violations and failed to act

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to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); accord Starr v.

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Baca, 652 F.3d 1202, 1205-08 (9th Cir. 2011); Corales v. Bennett, 567 F.3d 554, 570

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(9th Cir. 2009); Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1182 (9th

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Cir. 2007); Harris v. Roderick, 126 F.3d 1189, 1204 (9th Cir. 1997).

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Defendants may only be held liable for their own misconduct. Plaintiff must show

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that each Defendant participated in the violations, or knew of the violations and failed to

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act. As described below, he has failed to do so. Plaintiff will be given leave to amend.

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C.

Failure to protect

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The Eighth Amendment protects prisoners from inhumane methods of

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punishment and inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d

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1041, 1045 (9th Cir. 2006). Prison officials must provide prisoners with personal safety.

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Toussaint v. McCarthy, 801 F.2d 1080, 1107 (9th Cir. 1986), overruled on other grounds

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by Sandin v. Conner, 515 U.S. 472, 481 (1995). Thus, prison officials have a duty to

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protect prisoners from violence at the hands of other prisoners. Farmer v. Brennan, 511

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U.S. 825, 833 (1994) (citation omitted). “The failure of prison officials to protect inmates

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from attacks by other inmates may rise to the level of an Eighth Amendment violation

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when: (1) the deprivation alleged is objectively, sufficiently serious and, (2) the prison

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officials had a sufficiently culpable state of mind, acting with deliberate indifference.”

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Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005) (internal quotations and citation

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omitted).

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Deliberate indifference is a high legal standard. Toguchi v. Chung, 391 F.3d 1051,

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1060 (9th Cir. 2004). To allege deliberate indifference, the plaintiff must allege facts

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sufficient to support a claim that prison officials knew of and disregarded a substantial

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risk of serious harm. Farmer, 511 U.S. at 847. Where the alleged violation involves an

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assault by another inmate, “[t]he standard does not require that the guard or official

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believe to a moral certainty that one inmate intends to attack another at a given place at

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a time certain before that officer is obligated to take steps to prevent such an assault.”

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Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986) (internal quotations and citation

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omitted). However, “he must have more than a mere suspicion that an attack will occur.”

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Id. (citation omitted).

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Plaintiff has not alleged facts to indicate that any named Defendant was aware

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that inmate Lopez posed a specific threat to Plaintiff.1 Thus, Plaintiff does not allege

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facts to support a claim that Defendants knowingly failed to protect him from harm in

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violation of the Eighth Amendment.

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If Plaintiff chooses to amend, he must allege facts showing Defendants' knowing

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disregard of a substantial risk of serious harm to Plaintiff. He must describe the risk,

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explain how it arose and how Defendants were made aware of it, and how its threat grew

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into an actual risk of harm, and then harm, to Plaintiff.

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D.

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A supervisor's failure to train subordinates may give rise to individual liability

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under § 1983 where the failure amounts to deliberate indifference to the rights of

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persons with whom the subordinates are likely to come into contact. Canell v. Lightner,

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Failure to train

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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.

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143 F.3d 1210, 1213-14 (9th Cir. 1998). To impose liability under this theory, a plaintiff

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must demonstrate that the subordinate‟s training was inadequate, that the inadequate

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training was a deliberate choice on the part of the supervisor, and that the inadequate

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training caused a constitutional violation. Id. at 1214. See also City of Canton v. Harris,

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489 U.S. 378, 387-90 (1989); Lee v. City of Los Angeles, 250 F.3d 668, 681 (9th Cir.

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2001).

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Plaintiff alleges that Defendant Does Nos. 1 and 2 failed to train the other

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defendants, but does not allege facts that suggest these Defendants deliberately

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provided inadequate training, policies and supervision for the purpose of creating a

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constitutional violation. Plaintiff will be given leave to amend.

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E.

California Regulations

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To the extent Plaintiff wishes to allege violations of Title 15 of the California Code

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of Regulations governing conduct of prison officials, the existence of the Title 15

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regulations does not necessarily entitle an inmate to sue civilly for their violation. The

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Court has found no authority to support a finding of an implied private right of action

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under Title 15, and Plaintiff has provided none. Several district court decisions hold that

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there is no such right. See e.g., Vasquez v. Tate, No. 1:10-cv-1876-JLT (PC), 2012 WL

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6738167, at *9 (E.D. Cal. Dec. 28, 2012); Davis v. Powell, 901 F. Supp. 2d 1196, 1211

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(S.D. Cal. 2012).

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Plaintiff may not bring an independent claim solely for violation of prison

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regulations set out in Title 15. Leave to amend such a claim is futile and will be denied

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on that basis.

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V.

CONCLUSION AND ORDER

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Plaintiff‟s Complaint does not state a claim for relief. The Court will grant Plaintiff

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an opportunity to file an amended complaint. Noll v. Carlson, 809 F.2d 1446, 1448-49

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(9th Cir. 1987). If Plaintiff opts to amend, he must demonstrate that the alleged acts

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resulted in a deprivation of his constitutional rights. Iqbal, 556 U.S. at 677-78. Plaintiff

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must set forth “sufficient factual matter . . . to „state a claim that is plausible on its face.‟”

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Id. at 678 (quoting Twombly, 550 U.S. at 555 (2007)). Plaintiff must also demonstrate

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that each named Defendant personally participated in a deprivation of his rights. Jones

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v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).

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Plaintiff should note that although he has been given the opportunity to amend, it

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is not for the purposes of adding new claims. George v. Smith, 507 F.3d 605, 607 (7th

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Cir. 2007). Plaintiff should carefully read this Screening Order and focus his efforts on

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curing the deficiencies set forth above.

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Finally, Plaintiff is advised that Local Rule 220 requires that an amended

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complaint be complete in itself without reference to any prior pleading. As a general rule,

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an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d

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55, 57 (9th Cir. 1967). Once an amended complaint is filed, the original complaint no

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longer serves any function in the case. Therefore, in an amended complaint, as in an

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original complaint, each claim and the involvement of each defendant must be

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sufficiently alleged. The amended complaint should be clearly and boldly titled “First

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Amended Complaint,” refer to the appropriate case number, and be an original signed

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under penalty of perjury. Plaintiff's amended complaint should be brief. Fed. R. Civ. P.

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8(a). Although accepted as true, the “[f]actual allegations must be [sufficient] to raise a

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right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555 (citations

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omitted).

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Accordingly, it is HEREBY ORDERED that:

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1.

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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;
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Plaintiff‟s complaint (ECF No. 1) is DISMISSED for failure to state a claim

upon which relief may be granted;
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Plaintiff shall file an amended complaint within thirty (30) days; and

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4.

If Plaintiff fails to file an amended complaint in compliance with this order,

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the Court will dismissed this action, with prejudice, for failure to state a claim and failure

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to comply with a court order.

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IT IS SO ORDERED.
Dated:

September 29, 2014

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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