Perrotte v. Johnson et al

Filing 112

FINDINGS and RECOMMENDATIONS Recommending Dismissal of Defendant Allison and Does One through Ten signed by Magistrate Judge Stanley A. Boone on 11/29/2017. Referred to Judge Lawrence J. O'Neill. Objections to F&R due by 12/18/2017. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JEFFREY P. PERROTTE,

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Plaintiff,
v.
STACEY JOHNSON, et al.,
Defendants.

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Case No. 1:15-cv-00026-LJO-SAB (PC)
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL DEFENDANT
ALLISON AND DOES ONE THROUGH TEN
[ECF Nos. 1, 10]

Plaintiff Jeffrey P. Perrotte is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.
Plaintiff consented to United States Magistrate Judge jurisdiction on January 20, 2015. (ECF

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No. 4.) On October 14, 2015, Defendant Hebron declined United States Magistrate Judge jurisdiction.

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(ECF No. 15.) Defendants LeFlore and Johnson have not consented or declined United States

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Magistrate Judge jurisdiction.

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On May 28, 2015, the Court found that Plaintiff’s complaint stated a cognizable retaliation

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claim against Defendants Johnson, LeFlore and Hebron and a cognizable claim for cruel and unusual

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punishment against Defendants Johnson and LeFlore. (ECF No. 10.) The Court dismissed Defendant

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Allison for failure to state a cognizable claim for relief. (Id.) The Court indicated that jurisdiction

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existed under 28 U.S.C. § 636(c) based on the fact that Plaintiff had consented to Magistrate Judge

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jurisdiction and no other parties had yet appeared. (Id.)
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On November 9, 2017, the Ninth Circuit Court of Appeals ruled that 28 U.S.C. § 636(c)(1)

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requires the consent of all named plaintiffs and defendants, even those not served with process, before

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jurisdiction may vest in a Magistrate Judge to dispose of a civil case. Williams v. King, __ F.3d __,

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Case No. 15-15259, 2017 WL 5180205, *3 (9th Cir. Nov. 9, 2017). Accordingly, the Court did not

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have jurisdiction to dismiss the Defendants in its May 28, 2015 order.

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Based upon the foregoing, the undersigned will now recommend to the District Judge that this

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case continue to proceed only on Plaintiff’s cognizable claims, and that Defendants Allison and

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unnamed Does be dismissed for the reasons explained below.

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I.

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SCREENING REQUIREMENT

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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). 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 “fails to state a claim on which relief may be granted,” or that “seeks

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monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

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A complaint must contain “a 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). Detailed factual allegations are not required, but

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,

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do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 555 (2007)). Plaintiff must demonstrate that each named defendant personally

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participated in the deprivation of his rights. Iqbal, 556 U.S. at 676-677; Simmons v. Navajo County,

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Ariz., 609 F.3d 1011, 1020-1021 (9th Cir. 2010).

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Prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings

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liberally construed and to have any doubt resolved in their favor, but the pleading standard is now

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higher, Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted), and to survive

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screening, Plaintiff’s claims must be facially plausible, which requires sufficient factual detail to allow

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the Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal,

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556 U.S. at 678-79; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The “sheer
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possibility that a defendant has acted unlawfully” is not sufficient, and “facts that are ‘merely

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consistent with’ a defendant’s liability” falls short of satisfying the plausibility standard. Iqbal, 556

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U.S. at 678; Moss, 572 F.3d at 969.

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II.

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COMPLAINT ALLEGATIONS

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Plaintiff contends that Defendants engaged in retaliation for Plaintiff exercising his First

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Amendment rights to file grievances.
In May 2008, Plaintiff interviewed with Defendants Hebron, Leflore and Johnson for a mentor
position with Walden House at California Substance Abuse and Treatment Facility (CSATF). Plaintiff

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was questioned regarding the number of prison grievances and lawsuits he filed in the past against

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prison staff. He was informed that if selected as a mentor candidate at the Walden House, he would be

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expected to use different methods in resolving any grievances other than the standard 602 inmate

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grievance procedure.

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In October 2008, Plaintiff was called to the Facility Program Office where he was interviewed

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by Defendants Hebron, Leflore and Johnson. Plaintiff was questioned again about his history of filing

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grievances and in assisting other inmates in accessing the courts. Plaintiff was asked about a recent

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inmate grievance he filed regarding placement in a janitorial vocational training program and if he

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would be willing to refrain from filing grievances if he were accepted into the mentor program.

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In November 2008, Plaintiff was accepted into the Walden House Substance Abuse Treatment

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Program as a mentor candidate. During orientation, Plaintiff was taught the tools of a therapeutic

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community and the family values of Walden House. During the mentor meetings, it was stressed to

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Plaintiff that grievances were to be resolved using the tools of the Walden House.

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In August 2009, Plaintiff was called to the supervising counselor’s office and Defendants

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Hebron, Johnson and Leflore were furious and yelled at Plaintiff regarding an article that had been

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published on July 22, 2009, in numerous newspapers which was critical of the Warden and the policies

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at SATF. Defendants called Plaintiff a liar for not mentioning the article (which had been submitted

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prior to interviewing for the mentor program) that violated the “family values” of the Walden house.

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A couple hours later, Plaintiff was “grouped” by all the mentors for writing the article and violating
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Walden House “family values” and was placed on therapeutic contract with the mentors. Plaintiff had

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to apologize to Defendants, give seminars to core groups, give seminars to resident clusters on trust,

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prepare a presentation to the mentors on trust, clean showers, and restrain from any mentor activities

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for thirty days. Plaintiff was also removed from the band program and cluster responsibilities by his

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supervising mentor, Senior Mentor John Ray.

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Plaintiff began receiving many complaints from residents regarding inappropriate conduct by

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Defendant Johnson during group sessions. Plaintiff requested a meeting with Defendant Johnson to

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address the concerns. The meeting took place in September 2009, in Johnson’s office and Plaintiff

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was informed, “You represent Walden House, not the residents. Your job is to put any complaints

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about me to rest, not stir the pot. My expectation is that you will do your job. Don’t bring these

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complaints to me again.” Plaintiff contacted Defendant Leflore on the yard and told him about the

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complaints and Defendant Johnson’s response to Plaintiff. Defendant Leflore told Plaintiff that

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Johnson was correct and that our role as mentors was to protect Walden House from any scrutiny by

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the prison administration.

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In September 2009, during the union of body and mind event, Plaintiff was confronted by

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Defendant Johnson in the presence of Senior Mentor John Ray. Johnson was furious that Plaintiff had

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switched microphones prior to making announcements and prior to performing. Defendant accused

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Plaintiff of being a racist and stormed away.

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Plaintiff was informed by Senior Mentor Ray the following day that Defendant Johnson had

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discovered that Plaintiff was assisting some residents in filing complaints against her and wanted to

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get rid of Plaintiff. Senior Mentor Ray also indicated that Defendants Johnson, Leflore and Hebron

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were afraid that Plaintiff was going to author an additional newspaper article that was critical of their

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behavior towards residents and critical of the drug program at the prison. Senior Mentor Ray

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informed Plaintiff that assisting residents had to come to an end or he would not be able to protect

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Plaintiff from Defendants.

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In February 2010, Plaintiff was threatened by Defendants Johnson and Leflore about assisting

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residents in filing grievances and petitions in the court. Plaintiff was instructed to cease these

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activities immediately.
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In March 2010, Plaintiff was informed by Walden House Provider, Sue Rudd, that Defendants

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Johnson and Leflore had asked her to lie regarding Plaintiff’s work in the cluster to justify firing

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Plaintiff and removing him from the program.

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In July 2010, Plaintiff was told by Senior Mentor G. Scott Holland that Defendant Johnson was

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“dead-set” on causing Plaintiff harm for helping residents file grievances against her. Holland

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bragged that he was having a relationship with Defendant Johnson.

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In August 2010, Plaintiff requested a meeting with Defendants Johnson, Leflore and Hebron.

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Plaintiff informed Defendants of the complaints by residents regarding Johnson’s conduct and

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Leflore’s unwillingness to address the behavior as Program Director. Plaintiff requested Defendant

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Hebron, as the Warden’s liaison to Walden House, do something about it. Defendants began yelling

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and screaming at Plaintiff that he was just an inmate and would not dictate anything to them. Plaintiff

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was warned that if any grievances were filed by Plaintiff, they would take adverse actions against

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Plaintiff. Defendant Hebron stated, “You agreed not to file grievances if you were accepted into

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Walden House Mr. Perrotte. If you cannot abide by these rules, you will be sent back to B-Yard.” It

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should be noted, White or Hispanic inmates who were sent back to B-Yard were assaulted by the

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inmates there for agreeing to inter-racial bunk. Defendants were aware of this and utilized this as a

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significant threat for residents.

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In September 2010, Plaintiff received state certification as an alcohol and drug counselor and

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requested his pay be adjusted to be paid equivalent to other mentors who had received state

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certification. The request was denied.

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On October 23, 2010, Plaintiff filed a CDCR-602 inmate appeal challenging the pay scale and

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mentor program. The appeal was assigned to Defendant Leflore who refused to answer the appeal.

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Plaintiff forwarded a request to prison administration to compel Defendant Leflore to answer the

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appeal which infuriated Defendant who contacted Plaintiff on the yard and threatened that “your days

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here are numbered.”

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On approximately November 1, 2010, Plaintiff was paged to an “emergency” mentor meeting.

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The mentors present indicated that Defendants Hebron, Leflore and Johnson had requested they

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“group” Plaintiff regarding the latest grievance and for violating the concepts of “family value.”
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Plaintiff was placed on contract again and ordered to perform additional tasks to make amends for

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filing the grievance.

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On approximately November 3, 2010, Walden House provider, Sue Rudd, warned Plaintiff that

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Defendant Johnson had told her that she was going to give Plaintiff a rules violation to “teach” him a

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lesson for filing the grievance on the mentor program in order to get Plaintiff fired. Ms. Rudd stated

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Johnson was very upset because Plaintiff was assisting some residents file complaints against

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Defendant Johnson and other Walden House staff.

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On December 29, 2010, Plaintiff sent a letter to Doctor V. Eisen, Chief Executive Officer,
Walden House, complaining about Defendants Johnson and Leflore. A copy of this letter was sent to
Defendant’s supervisor, Wayne Garcia, Defendant Hebron and Warden at SATF.

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On February 19, 2011, Plaintiff served a CDCR-22 form on Defendant Leflore for not

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adjudicating Plaintiff’s 602 inmate appeal on the mentor program as required by CDCR rules.

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Defendant Leflore snatched the form out of Plaintiff’s hands and walked away stating, “I told you that

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you would regret this.”

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On March 10, 2011, Plaintiff was “confronted” by some of the mentors for pursuing the appeal

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on the mentor program and told to quit or stop filing grievances, writing Doctor Vitka, and helping

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residents with their grievances.

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On March 18, 2011, Plaintiff went to facility captain V. Ramirez’s office and filed a complaint

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against Defendant Johnson and requested internal affairs investigate her inappropriate relationship

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with mentor S. Holland for smuggling contraband into the prison. Captain Ramirez indicated he

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would contact internal affairs.

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On March 25, 2011, Plaintiff again went to captain Ramirez’s office and informed him of

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Defendant Johnson’s knowledge of his “confidential complaint.” Captain Ramirez indicated that he

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would look into it.

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On May 29, 2011, Plaintiff was having a conversation with Defendant Leflore when Defendant

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Johnson walked up and started yelling at Plaintiff for failing to move a resident. Defendant Johnson

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stated, “Don’t forget, you’re just an inmate!” Johnson further stated, “I know your case, you’re

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nothing but a mother-fucking drunk!” I immediately asked Defendant Leflore to address this outburst
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from Johnson as her immediate supervisor and Leflore just walked away. I told Defendant Johnson I

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was immediately filing a staff misconduct complaint against her and Johnson stated, “You’re going to

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regret this and you’re going to regret ratting on me.”

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On May 29, 2011, Plaintiff immediately filed a staff misconduct appeal against Defendant
Johnson.
On April 1, 2011, Plaintiff received three separate laudatory memorandum from Walden House

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provider’s Sue Rudd, Mona Velasquez and Doris Trapp who were troubled with the actions of

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Defendant Johnson. Sue Rudd was immediately fired and ordered off prison grounds when she told

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Defendants she was going to tell the truth about their retaliatory conduct towards Plaintiff. Mona

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Velasquez and Doris Trapp were admonished for authoring memorandums.
On April 3, 2011, Plaintiff was served a CDC-115 Rules Violation Report authored by

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Defendant Johnson alleging “Behavior That Could Lead to Violence.” This fraudulent disciplinary

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report was logged as F-11-03-013 and was motivated by Plaintiff filing the staff misconduct appeal.

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On April 8, 2011, Plaintiff was called before Senior Hearing Officer Lieutenant James who

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found Plaintiff not guilty of the charges filed by Defendant Johnson. Correctional officer E. Guillen

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testified that the allegations by Defendant Johnson were not true as officer Guillen witnessed the

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interaction referenced in the CDC-115. Lieutenant James found the charges to be in retaliation for

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Plaintiff filing the staff misconduct appeal.

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Approximately two days later, Plaintiff was confronted by Defendant Johnson who stated,
“you got lucky on the 115 but I have something else planned for you.”
On April 10, 2011, Plaintiff again contacted the facility captain to inquire as to when Plaintiff

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would be interviewed by internal affairs and to inform the captain of the continued threats by

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Defendants Johnson and Leflore.

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On April 12, 2011, Plaintiff authored and forwarded a second letter to Doctor E. Eisen, Walden
House, regarding the actions of her employees.
On April 14, 2011, former Walden House provider, Sue Rudd, emailed Plaintiff’s website

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detailing retaliatory actions by Defendants Johnson and Leflore against Plaintiff for engaging in

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protected conduct.
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On April 16, 2011, Plaintiff was contacted on the yard by Lieutenant Alva who stated, “Did

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you get your new chrono yet?” Plaintiff indicated that he did not know what Alva was talking about

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and he stated, “Oh, you soon will.”

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On April 19, 2011, Plaintiff was paged to the program office and placed in a cage. Plaintiff

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was informed by DeOchoa that he was being rehoused in administrative segregation pending

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investigation into allegations Plaintiff made against Defendants Johnson, Leflore, and other Walden

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House employees. DeOchoa approached Plaintiff and stated, “You probably shouldn’t have filed the

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grievances and ‘ratted’ on Stacey.”

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Also, on April 19, 2011, the administrative segregation sergeant approached the cage and

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stated, “This is the guy that likes to file grievances?” Shortly thereafter, the sergeant brought a large

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inmate out of a cell and placed him in the cage next to me. Inmate Stroud told Plaintiff the Sergeant

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wanted him to come and talk to Plaintiff about being his cellie. Inmate Stroud then stated, “They

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brought your Jewish food to the cell already, I’m Jewish too.” The sergeant came back and said,

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“Okay let’s cell them up.” Both of them were cuffed-up and brought to a cell. After the cell door was

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closed, inmate Stroud squeezed by Plaintiff to make sure he was the first to be uncuffed. As soon as

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the handcuffs were removed from inmate Stroud, he instantaneously began striking Plaintiff in the

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face and torso area. The escorting officer, Megallon, immediately began spraying o.c. pepper spray

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into the cell and covered Plaintiff’s body with spray. Plaintiff was still cuffed and was now being

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struck without the ability to see. Once the assault ended, Plaintiff was pulled from the cell and

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escorted to a shower for decontamination. Plaintiff was told, “This is what happens to those who like

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to tell on staff in ad-seg.” Plaintiff was suffering excruciating pain from the assault and from the o.c.

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pepper spray which covered his entire body including the groan area as Plaintiff was only wearing a

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pair of boxer shorts. Plaintiff was escorted to a holding cell and the ad-seg sergeant approached and

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Plaintiff stated, “Nice set-up.” He responded, “prove it.” After being housed in a different cell,

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Plaintiff was informed by an officer that inmate Stroud was a level IV inmate (Plaintiff was a level II

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at the time), a validated Skinhead and member of the Security Threat Group II and that Plaintiff should

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never have been placed in the cell with Stroud under any circumstances.

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On April 20, 2011, Plaintiff was interviewed by the facility F captain. Plaintiff told the captain

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that he wanted an investigation done on the assault and battery suffered on April 19, 2011. The

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captain stated, “good luck on that.”

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Approximately ten days later, Plaintiff was pulled from the ad-seg cell and interviewed by

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Investigative Services Lieutenant S. Ramirez. During this interview, Plaintiff shared all of the

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information Plaintiff knew about Defendants Johnson, Leflore and other Walden House employees,

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also about the retaliation Plaintiff was experiencing for filing grievances by all Defendants.

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Lieutenant Ramirez took a few notes but then began questioning Plaintiff regarding Plaintiff’s

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daughter, Ashley. Plaintiff asked the Lieutenant why he wanted to know about Plaintiff’s daughter

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and the Lieutenant refused to answer. Plaintiff was returned to the cell and discovered that all of

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Plaintiff’s properly, including legal work, had been removed by investigative services.

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On April 27, 2011, Plaintiff appeared before Classification and was retained in ad-seg.
Plaintiff requested an investigation regarding the assault and battery suffered on April 19, 2011.

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On May 10, 2011, Plaintiff was placed in a holding cell by investigative services where

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Plaintiff’s property was in boxes. Plaintiff was given thirty minutes to decide what three boxes, out of

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six, Plaintiff was going to keep. Plaintiff discovered some of Plaintiff’s legal work and property

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missing and damaged.

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On May 20, 2011, an officer approached Plaintiff’s cell and stated, “The reason you’re still in

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ad-seg is because someone is trying to set you up and mailed in a letter detaining an escape plan and

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referring to a smuggled cell phone, along with photocopies of police badges.” The officer then stated,

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“We think Stacey Johnson mailed it in.”

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Approximately two days later, Plaintiff received a letter from Plaintiff’s wife, Michelle

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Perrotte, indicating that her, Plaintiff’s daughter Ashley, and Plaintiff’s father-in-law, Doctor Edward

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Lambert, had just been interviewed by Special Agent John Santos with the CDCR regarding an escape

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letter that had been addressed to Plaintiff and intercepted by the prison on April 27, 2011. The letter

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was purportedly signed by Plaintiff’s daughter Ashley with a fake return address in Pasadena,

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California. CDCR believed that the letter was written to cause Plaintiff significant harm and the

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investigation did reveal or suggest a possible motive for the origination of the letter with the incident

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involving Stacey Johnson at the prison.

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On June 15, 2011, Plaintiff appeared before classification and cleared to be returned to Facility

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F. Classification indicated they believed Plaintiff was being wrongly accused and did not deserve to

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be in ad-seg. Plaintiff inquired as to what was being done regarding the retaliation for exercising

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protected conduct and the committee chairperson indicated that information was confidential.

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Plaintiff was escorted back to Facility F with the remainder of Plaintiff’s property.

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Approximately four hours later, officers came to the unit where Plaintiff was housed, cuffed Plaintiff

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and rehoused Plaintiff in ad-seg without the property Plaintiff had in his cell just four hours earlier.

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Plaintiff was told by the officers that Defendant Johnson had placed a CDCR-128B informational

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chrono in Plaintiff’s file falsely indicating that she did not feel safe with Plaintiff on the facility

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because, among other statements, “Plaintiff threatened her that Plaintiff was going to send articles

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about her to newspapers.” This CDCR-128B was dated April 13, 2011, just five days after Plaintiff

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had been found not guilty on the rules violation report issued by Defendant Johnson.

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Approximately a week later, Plaintiff appeared before classification and told, “We believe this

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chrono is retaliation by Johnson and that it is safer for you to be away from her before she does

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something even worse to you. You will remain in ad-seg until you are transferred.

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On August 5, 2011, Plaintiff filed an additional staff misconduct appeal on Defendant Johnson

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requesting an investigation into Johnson’s retaliatory actions. The institution refused to process the

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appeal and after two attempts, Plaintiff sent the appeal to the Chief of Inmate Appeals in Sacramento,

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California, where it was again rejected. Plaintiff informed the Chief of Inmate Appeal of the

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investigation that Defendant Johnson mailed an escape letter to Plaintiff which caused Plaintiff

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significant injury, as well as filing the false disciplinary and the challenged CDCR-128B. Plaintiff’s

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request for the appeal to be processed, as required by CDCR policies, was rejected.

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On August 11, 2011, Plaintiff was transported to the California Men’s Colony in San Luis

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Obispo, California. Upon arrival, a significant amount of Plaintiff’s property was damaged and

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missing.

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In April 2012, one of Plaintiff’s Inmate Appeals on Defendant Johnson was granted at the

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Director’s Level of review. This appeal required Defendant to remove reference to the CDC-115,

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Rules Violation Report, which was dismissed in the interest of justice from the fraudulent CDCR-

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128B authored by Defendant Johnson on April 13, 2011.

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On July 10, 2012, Plaintiff received a letter, purportedly from Plaintiff’s daughter, speaking

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of plans to destroy Plaintiff’s chances at parole and other outrageous statements. The CDCR special

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agent that investigated the escape letter was contacted by Plaintiff’s counselor and this letter was

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added to their investigative file. Agent Santos believed the letter was sent by the same source and was

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motivated by the recent Director’s Level appeal grant.
On October 10, 2012, Plaintiff appeared before the parole board and the fraudulent (escape)

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letters and Defendant Johnson’s false allegations were discussed at length.
On January 3, 2013, Plaintiff received another letter purportedly from Plaintiff’s daughter with

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more outrageous content. This was forwarded to CDCR investigations.

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On April 3, 2013, Plaintiff appeared before the parole board who required Plaintiff to address

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the escape letters sent by Defendant Johnson, as well as Defendant Johnson’s false allegations in the

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CDCR-128B form April 13, 2011.
On August 28, 2013, Plaintiff’s parole grant was reversed by Governor Brown due in part to

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the escape letters and false allegations by Defendant Johnson.
In October 2013, Plaintiff’s attorney spoke with Special Agent John Santos regarding the

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escape letters used by Governor to reverse Plaintiff’s parole grant and Santos stated, “I have

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determined the letters sent to Mr. Perrotte are fraudulent and intended to set Perrotte up to be denied

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parole at his upcoming hearings. Plaintiff continues to receive fraudulent letters from the same source.

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On September 3, 2014, Plaintiff was required, again, to address the referenced letters and

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Defendant Johnson’s fraudulent allegations on April 13, 2011, at Plaintiff’s parole hearing.
At no time did Defendant Leflore and Hebron exercise their supervisory responsibility and

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prevent Defendant Johnson from continually retaliating against Plaintiff for exercising protected

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conduct, and, at times, participated directly in the retaliation.

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III.

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DISCUSSION

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A.

Retaliation

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“Prisoners have a First Amendment right to file grievances against prison officials and to be

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free from retaliation for doing so.” Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) (citing

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Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009)). Also protected by the First Amendment is the

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right to pursue civil rights litigation in federal court without retaliation. Silva v. Di Vittorio, 658 F.3d

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1090, 1104 (9th Cir. 2011). “Within the prison context, a viable claim of First Amendment retaliation

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entails five basic elements: (1) An assertion that a state actor took some adverse action against an

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inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the

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inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably advance a

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legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005).

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Based on Plaintiff’s allegations in the complaint, Plaintiff states a cognizable claim for
retaliation against Defendants Johnson, Leflore, and Hebron.

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B.

Cruel and Unusual Liability

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The Eighth Amendment protects prisoners from inhumane methods of punishment and from

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inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006).

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Although prison conditions may be restrictive and harsh, prison officials must provide prisoners with

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food, clothing, shelter, sanitation, medical care, and personal safety. Farmer v. Brennan, 511 U.S.

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825, 832-33 (1994) (quotations omitted). Prison officials have a duty under the Eighth Amendment to

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protect prisoners from violence at the hands of other prisoners because being violently assaulted in

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prison is simply not part of the penalty that criminal offenders pay for their offenses against society.

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Farmer, 511 U.S. at 833-34 (quotation marks omitted); Clem v. Lomeli, 566 F.3d 1177, 1181 (9th Cir.

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2009); Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005). However, prison officials are liable

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under the Eighth Amendment only if they demonstrate deliberate indifference to conditions posing a

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substantial risk of serious harm to an inmate; and it is well settled that deliberate indifference occurs

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when an official acted or failed to act despite his knowledge of a substantial risk of serious harm.

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Farmer, 511 U.S. at 834, 841 (quotations omitted); Clem, 566 F.3d at 1181; Hearns, 413 F.3d at 1040.
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Based on Plaintiff’s allegations in the complaint, Plaintiff states a cognizable claim for cruel

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and unusual punishment against Defendants Johnson and Leflore based on their placement of Plaintiff

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in the administrative segregation housing unit with a rival cellmate who attacked Plaintiff.

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C.

Supervisory Liability

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Supervisory personnel may not be held liable under section 1983 for the actions of subordinate

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employees based on respondeat superior, or vicarious liability. Crowley v. Bannister, 734 F.3d 967,

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977 (9th Cir. 2013); accord Lemire v. California Dep’t of Corr. and Rehab., 726 F.3d 1062, 1074-75

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(9th Cir. 2013); Lacey v. Maricopa County, 693 F.3d 896, 915-16 (9th Cir. 2012) (en banc). “A

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supervisor may be liable only if (1) he or she is personally involved in the constitutional deprivation,

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or (2) there is a sufficient causal connection between the supervisor’s wrongful conduct and the

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constitutional violation.” Crowley, 734 F.3d at 977 (citing Snow, 681 F.3d at 989) (internal quotation

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marks omitted); accord Lemire, 726 F.3d at 1074-75; Lacey, 693 F.3d at 915-16. “Under the latter

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theory, supervisory liability exists even without overt personal participation in the offensive act if

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supervisory officials implement a policy so deficient that the policy itself is a repudiation of

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constitutional rights and is the moving force of a constitutional violation.” Crowley, 734 F.3d at 977

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(citing Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)) (internal quotation marks omitted).
Plaintiff seeks to impose liability against Defendant Allison based on her position as Warden at

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SATF. Plaintiff’s complaint is devoid of any allegations supporting the existence of a supervisory

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liability claim against Warden Allison. The only basis for such a claim would be respondeat superior,

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which is precluded under section 1983.

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D.

Doe Defendants

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Plaintiff lists ten doe Defendants in his complaint. However, Plaintiff fails to set forth any

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facts describing how each Doe Defendant personally participated in the alleged violation of his

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constitutional rights. Accordingly, Plaintiff fails to state a cognizable claim any the Doe Defendants

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and they shall be dismissed.

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IV.

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RECOMMENDATIONS

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Based on the foregoing, it is HEREBY RECOMMENDED that:

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1.

For screening purposes only, this action proceed on Plaintiff’s retaliation claim against

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Defendants Johnson, LeFlore and Hebron and cruel and unusual punishment claims against

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Defendants Johnson and LeFlore; and

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2.

Defendants Allison and Does 1 through 10 be dismissed for failure to state a cognizable

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claim for relief.

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These Findings and Recommendations will be submitted to the United States District Judge assigned

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to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) days after being

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served with these Findings and Recommendations, the parties may file written objections with the

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Court. The document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” The parties are advised that failure to file objections within the specified time

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may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir.

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2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.

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Dated:

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November 29, 2017
UNITED STATES MAGISTRATE JUDGE

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