Medina v. Lopez

Filing 17

ORDER DISMISSING 12 SECOND AMENDED COMPLAINT for Failure to State a Claim, WITH LEAVE TO AMEND, signed by Magistrate Judge Gary S. Austin on 04/27/2015. THIRD Amended Complaint due : (30- Day Deadline) (Attachments: # 1 Amended Complaint Form)(Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PABLO A. MEDINA,

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Plaintiff,

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vs.

1:14-cv-01850-GSA-PC
ORDER DISMISSING SECOND AMENDED
COMPLAINT FOR FAILURE TO STATE A
CLAIM, WITH LEAVE TO AMEND
(Doc. 12.)

J. LOPEZ, et al.,

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Defendants.

THIRTY DAY DEADLINE TO FILE THIRD
AMENDED COMPLAINT

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I.

BACKGROUND

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Pablo A. Medina (“Plaintiff") is a state prisoner proceeding pro se and in forma

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pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. On November 3, 2014,

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Plaintiff and nineteen co-plaintiffs filed case 2:14-cv-2566-DAD-PC, Hicks v. Lopez, at the

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Sacramento Division of the U.S. District Court for the Eastern District of California. On

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November 12, 2014, the case was transferred to the Fresno Division of the Eastern District and

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opened as case 1:14-cv-01764-GSA-PC (Hicks v. Lopez). On November 24, 2014, the court

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issued an order severing the twenty plaintiffs‟ claims in case 1:14-cv-1764-GSA-PC, and the

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present case was opened for Plaintiff, 1:14-cv-1850-GSA-PC, Medina v. Lopez. (Doc. 1.)

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Plaintiff now proceeds as the sole Plaintiff in the present case.

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On December 8, 2014, Plaintiff consented to the jurisdiction of a Magistrate Judge in

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this action pursuant to 28 U.S.C. § 636(c), and no other parties have made an appearance.
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(Doc. 4.) Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of

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California, the undersigned shall conduct any and all proceedings in the case until such time as

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reassignment to a District Judge is required. Local Rule Appendix A(k)(3). On December 12,

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2014, Plaintiff filed the First Amended Complaint. (Doc. 5.) On February 17, 2015, with leave

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of court, Plaintiff filed the Second Amended Complaint. (Doc. 12.)

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On April 9, 2015, case 1:14-cv-1794-MJS-PC, Medina v. CDCR, was consolidated with

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the present case, and Plaintiff was granted leave to either file a Third Amended Complaint in

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the present case, or notify the court that he wishes to proceed with the Second Amended

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Complaint. (Doc. 15.) On April 24, 2015, Plaintiff filed a notice that he wishes to proceed

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with the Second Amended Complaint. (Doc. 16.)

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The Second Amended Complaint is now before the court for screening.
II.

SCREENING REQUIREMENT

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The in forma pauperis statute provides that Athe court shall dismiss the case at any time

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

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may be granted.@ 28 U.S.C. ' 1915(e)(2)(B)(ii). “Rule 8(a)‟s simplified pleading standard

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applies to all civil actions, with limited exceptions,” none of which applies to section 1983

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actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002); Fed. R. Civ. P. 8(a). A

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complaint must contain Aa short and plain statement of the claim showing that the pleader is

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entitled to relief . . . .@ Fed. R. Civ. P. 8(a)(2). “Such a statement must simply give the

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defendant fair notice of what the plaintiff‟s claim is and the grounds upon which it rests.”

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Swierkiewicz, 534 U.S. at 512. Detailed factual allegations are not required, but A[t]hreadbare

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recitals of the elements of a cause of action, supported by mere conclusory statements, do not

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suffice,@ Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic

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Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)), and courts Aare not required to

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indulge unwarranted inferences,@ Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir.

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2009) (internal quotation marks and citation omitted). While factual allegations are accepted as

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true, legal conclusions are not. Iqbal, 556 U.S. at 678. However, “the liberal pleading standard

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. . . applies only to a plaintiff‟s factual allegations.” Neitze v. Williams, 490 U.S. 319, 330 n.9
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(1989). “[A] liberal interpretation of a civil rights complaint may not supply essential elements

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of the claim that were not initially pled.” Bruns v. Nat‟l Credit Union Admin., 122 F.3d 1251,

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1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).

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III.

SUMMARY OF SECOND AMENDED COMPLAINT

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Plaintiff is presently incarcerated at High Desert State Prison in Susanville, California,

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in the custody of the California Department of Corrections and Rehabilitation (CDCR). The

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events at issue in the Second Amended Complaint allegedly occurred at North Kern State

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Prison (NKSP) in Delano, California, when Plaintiff was incarcerated there. Plaintiff names as

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defendants Correctional Officer (C/O) J. Lopez, Sergeant M. Vega, and Lieutenant J. Tangen

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(“Defendants”). All of the Defendants were employed by the CDCR at NKSP at the time of the

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events at issue.

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This case stems from an incident at NKSP, during which defendants Lopez, Vega, and

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Tangen allegedly neglected Plaintiff‟s safety during a riot, resulting in injury to Plaintiff.

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Plaintiff alleges that defendant Lopez ran out of the dayroom when the riot started, failing to do

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a full security check and failing to put away cleaning equipment, leaving behind a mopstick

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which was then used as a weapon against Plaintiff. Plaintiff also alleges that defendant Lopez

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left behind a flashlight which was used as a weapon. Plaintiff alleges that defendant Vega

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failed to make sure that C/O Lopez performed his daily duties correctly, and that defendants

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Vega and Tangen negligently made a decision to place Plaintiff back in a hostile environment,

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in a dorm with the same black inmates who had battered him repeatedly with the mopstick,

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causing Plaintiff great emotional distress. Plaintiff was housed with his attackers for more than

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four months, during which time Plaintiff feared being attacked again. Plaintiff alleges that he

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had trouble sleeping and suffered from paranoia, physical stress, nervousness, and fear.

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Plaintiff also alleges that defendant Tangen signed all of the correctional officers‟ reports,

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covering up the fact that they gave false information. Plaintiff seeks monetary damages.

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IV.

PLAINTIFF’S CLAIMS
The Civil Rights Act under which this action was filed provides:

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Every person who, under color of [state law] . . . subjects, or
causes to be subjected, any citizen of the United States . . . to the
deprivation of any rights, privileges, or immunities secured by
the Constitution . . . shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for
redress.

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42 U.S.C. ' 1983. ASection 1983 . . . creates a cause of action for violations of the federal

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Constitution and laws.@ Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997)

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(internal quotations omitted). ATo the extent that the violation of a state law amounts to the

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deprivation of a state-created interest that reaches beyond that guaranteed by the federal

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Constitution, Section 1983 offers no redress.@ Id.
Failure to Protect – Eighth Amendment

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A.

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Prison officials have a duty to take reasonable steps to protect inmates from physical

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abuse. Farmer v. Brennan, 511 U.S. 825, 833 (1994); Hoptowit v. Ray, 682 F.2d 1237, 1250-

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51 (9th Cir. 1982). To establish a violation of this duty, the prisoner must establish that prison

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officials were Adeliberately indifferent to a serious threat to the inmates=s safety.@ Farmer at

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834. The question under the Eighth Amendment is whether prison officials, acting with

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deliberate indifference, exposed a prisoner to a sufficiently substantial >risk of serious damage

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to his future health . . . .=@ Id. at 843 (citing Helling v. McKinney, 509 U.S. 25, 35 (1993)). The

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Supreme Court has explained that Adeliberate indifference entails something more than mere

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negligence ... [but] something less than acts or omissions for the very purpose of causing harm

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or with the knowledge that harm will result.@ Farmer, 511 U.S. at 835. The Court defined this

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Adeliberate indifference@ standard as equal to Arecklessness,@ in which Aa person disregards a

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risk of harm of which he is aware.@ Id. at 836-37.

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The deliberate indifference standard involves both an objective and a subjective prong.

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First, the alleged deprivation must be, in objective terms, Asufficiently serious.@ Id. at 834.

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Second, subjectively, the prison official must Aknow of and disregard an excessive risk to

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inmate health or safety.@ Id. at 837; Anderson v. County of Kern, 45 F.3d 1310, 1313 (9th Cir.
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1995). A>If a prison official should have been aware of the risk, but was not, then the official

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has not violated the Eighth Amendment, no matter how severe the risk.=@ Toguchi v. Chung,

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391 F.3d 1051, 1060 (9th Cir. 2004) (quoting Gibson v. County of Washoe, Nevada, 290 F.3d

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1175, 1188 (9th Cir. 2002)). To prove knowledge of the risk, however, the prisoner may rely

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on circumstantial evidence; in fact, the very obviousness of the risk may be sufficient to

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establish knowledge. Farmer, 511 U.S. at 842; Wallis v. Baldwin, 70 F.3d 1074, 1077 (9th Cir.

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1995).

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During the Riot

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Plaintiff alleges that when the riot started, defendant Lopez ran out of the dayroom

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without putting away cleaning equipment or doing a full security check, leaving behind a

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mopstick which was then used by other inmates to batter Plaintiff. Plaintiff also alleges that

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defendant Vega failed to make sure that defendant Lopez properly performed his duties.

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Plaintiff‟s allegations demonstrate that defendant Lopez exposed Plaintiff to a

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sufficiently substantial risk of harm. However, Plaintiff fails to show that defendant Lopez

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acted with deliberate indifference against Plaintiff. Plaintiff fails to allege facts showing that

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defendant Lopez acted against him while knowing and consciously disregarding a serious risk

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of substantial harm to Plaintiff Therefore, Plaintiff fails to state an Eighth Amendment claim

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against defendant Lopez for failing to protect him during the riot.

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Plaintiff allegations appear to allege that defendant Vega was defendant Lopez‟s

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supervisor, and for that reason should be held accountable for defendant Lopez‟s actions.

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Plaintiff may not find defendant Vega liable under a theory of respondeat superior. Iqbal, 556

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U.S. at 676; Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009). A supervisor may

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be held liable only if he or she Aparticipated in or directed the violations, or knew of the

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violations and failed to act to prevent them.@ Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.

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1989); accord Starr v. Baca, 652 F.3d 1202, 1205-06 (9th Cir. 2011); Corales v. Bennett, 567

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F.3d 554, 570 (9th Cir. 2009); Preschooler II v. Clark County School Board of Trustees, 479

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F.3d 1175, 1182 (9th Cir. 2007); Harris v. Roderick, 126 F.3d 1189, 1204 (9th Cir. 1997).

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Therefore, Plaintiff fails to state a claim against defendant Vega for failure to make sure that

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defendant Lopez properly performed his duties during the riot.

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After the Riot

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Plaintiff alleges that after the riot, defendants Vega and Tangen negligently made a

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decision to place Plaintiff back in a hostile environment, in a dorm with the same black inmates

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who had battered him during the riot with a mopstick, causing Plaintiff great emotional distress.

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Plaintiff fails to state a claim for failure to protect him after the riot, because Plaintiff

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has not alleged that a realistic risk of harm against him by the black inmates existed after the

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riot was over. Plaintiff does not allege that he was enemies with any of the black inmates or

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that they ever threatened or injured him while they were housed together for four months in the

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same dorm. Moreover, Plaintiff fails to allege facts showing that defendants Vega and Tangen

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were deliberately indifferent to a serious risk of harm to Plaintiff when they placed him in the

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dorm.

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B.

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Plaintiff alleges that defendant Tangen signed all of the correctional officers‟ reports,

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covering up false information in the reports. Plaintiff has not alleged the deprivation of any

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legally protected interest. Therefore, these allegations are insufficient to state a claim under §

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1983 against defendant Tangen.

False Reports

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C.

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Plaintiff alleges that Defendants acted negligently against him. Plaintiff is informed

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that violation of state tort law, such as negligence, is not sufficient to state a claim for relief

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under ' 1983.

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constitutional or statutory rights. See Paul v. Davis, 424 U.S. 693 (1976). Although the court

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may exercise supplemental jurisdiction over state law claims, Plaintiff must first have a

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cognizable claim for relief under federal law. See 28 U.S.C. ' 1367.

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V.

Negligence

To state a claim under ' 1983, there must be a deprivation of federal

CONCLUSION AND ORDER

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Based on the foregoing, the Court finds that Plaintiff=s Second Amended Complaint

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fails to state any claims upon which relief may be granted under ' 1983 against any of the
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Defendants. Under Rule 15(a) of the Federal Rules of Civil Procedure, “leave to amend shall

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be freely given when justice so requires.” Therefore, the Court will provide Plaintiff with time

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to file an amended complaint curing the deficiencies identified above. Lopez v. Smith, 203

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F.3d 1122, 1126-30 (9th Cir. 2000).

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The Third Amended Complaint should be brief, but must state what each named

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defendant did that led to the deprivation of Plaintiff‟s constitutional or other federal rights.

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Fed. R. Civ. P. 8(a); Iqbal, 556 U.S. at 676; Jones v. Williams, 297 F.3d 930, 934 (9th Cir.

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2002). Under § 1983 there is no respondeat superior liability, and each defendant is only liable

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for his or her own misconduct. Iqbal at 676. Plaintiff must set forth “sufficient factual matter .

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. . to „state a claim that is plausible on its face.‟” Id. at 1949 (quoting Twombly, 550 U.S. at

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555).

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deprivation of his rights. Jones, 297 F.3d at 934 (emphasis added).

Plaintiff must also demonstrate that each defendant personally participated in the

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

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amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot”

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complaints).

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Plaintiff is advised that an amended complaint supercedes the original complaint, Lacey

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v. Maricopa County, 693 F 3d. 896, 907 n.1 (9th Cir. 2012) (en banc), and it must be complete

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in itself without reference to the prior or superceded pleading, Local Rule 220. Therefore, in an

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amended complaint, as in an original complaint, each claim and the involvement of each

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defendant must be sufficiently alleged.

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Finally, the amended complaint should be clearly and boldly titled “Third Amended

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Complaint,” refer to the appropriate case number, and be an original signed under penalty of

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perjury.

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

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DISMISSED for failure to state a claim, with leave to amend;

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Plaintiff‟s Second Amended Complaint, filed on February 17, 2015, is

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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

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a Third Amended Complaint curing the deficiencies identified by the court in

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this order;

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4.

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Plaintiff shall caption the amended complaint “Third Amended Complaint” and
refer to the case number 1:14-cv-01850-GSA-PC; and

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If Plaintiff fails to comply with this order, this action will be dismissed for
failure to state a claim upon which relief may be granted.

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IT IS SO ORDERED.
Dated:

April 27, 2015

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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