Pullett v. Castellanos et al

Filing 26

ORDER DISMISSING Third Amended Complaint signed by District Judge Ralph R. Beistline on 6/16/2016. CASE CLOSED. (Sant Agata, S)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
DELL PULLETT,
Case No. 1:15-cv-00755-RRB
Plaintiff,
ORDER DISMISSING
THIRD AMENDED COMPLAINT

vs.
J. CASTELLANOS, et al.,
Defendants.

Pending before the Court is the Third Amended Complaint filed by Plaintiff Dell
Pullett, a California state prisoner appearing pro se and in forma pauperis, under 42 U.S.C.
§ 1983 against officials of the California Department of Corrections and Rehabilitation.1
Pullett’s action arises out of his incarceration at the California Substance Abuse and
Treatment Facility, Corcoran (“CSATF”). Pullett is currently incarcerated at the R. J.
Donovan Correctional Center, San Diego.
I.

SCREENING REQUIREMENT
This Court is required to screen complaints brought by prisoners seeking relief

against a governmental entity or officer or employee of a governmental entity.2 The Court

1

In his Third Amended Complaint Pullet names as Defendants J. Castellanos,
Correctional Officer; M. Kelm, Correctional Officer; Melero, Correctional Officer; and T.
Atkins, Correctional Lt.
2

28 U.S.C. § 1915A(a).

ORDER DISMISSING THIRD AMENDED COMPLAINT
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set forth the standards applicable to screening in its initial Dismissal Order;3 therefore, the
Court does not repeat them herein.
II.

PRIOR DISMISSAL ORDERS
In dismissing the First Amended Complaint the Court permitted Pullett to amend

with respect to his Third Cause of Action, an Eighth Amendment claim as against a
correctional officer, J. Castellanos, and the John Doe Defendants that arose out of a
stabbing incident that occurred while Pullett was walking unescorted between his cell and
the infirmary on May 13, 2013.4
Pullett’s Second Amended Complaint consisted of ten paragraphs. The Court
dismissed it for failure to comply with the Court’s Order dismissing the First Amended
Complaint.5
III.

GRAVAMEN OF THIRD AMENDED COMPLAINT
Pullett’s claim arises out an incident in which he was stabbed by two other inmates.

Although it is somewhat difficult to follow Pullett appears to allege that in retaliation for the
filing of inmate grievances that the Defendants somehow contrived to have him stabbed
by other inmates.
Castellanos. Pullett alleges that: (1) Pullett observed Castellanos talking with
inmate Simas and hand him a brown paper bag; (2) Castellanos then called Pullett into
the office and berated Pullet for filing grievances, essentially warning Pullett that “he was

3

Docket 9.

4

Docket 13, pp. 14–15.

5

Docket 21.

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going to start searching Black inmates cells to cause trouble on the plaintiff, and that noone write (sic) him up and get (sic) away with it”;6 and (3) immediately after Castellanos’
warning inmate Simas stabbed Pullett in the neck and Simas’ cellie stabbed him in the
lung.7
Kelm/Melero. Reduced to their essence, the allegations against Kelm and Melero
are that they should have known that Pullett was a target for the assault but turned a “blindeye” for their friend, Castellanos.
Atkins. Pullett appears to allege that Atkins: (1) failed to properly train and
supervise his subordinates; (2) ordered the other officers to retaliate against Pullett for filing
grievances, and (3) conspired with Atkins, Kelm, and Melero to have Pullet stabbed.
IV.

DISCUSSION
Initially the Court notes that Pullett sues the Defendants in both their individual and

official capacities. The Supreme Court has held that “states or governmental entities that
are considered ‘arms of the State’ for Eleventh Amendment” are not “persons” under
§ 1983.8 The Supreme Court also clarified that “a suit against a state official in his or her
official capacity . . . . is no different from a suit against the state itself.”9 Thus, to the extent
that Pullett is suing the Defendants in their official capacities, the action must be dismissed.

6

Docket 24, p. 12, ¶ 35.

7

It appears from the Third Amended Complaint that both inmates were white.

8

Will v. Mich. Dept. of State Police, 491 U.S. 58, 70 (1989).

9

Id. at 71.

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The heart of Pullett’s Third Amended Complaint is that the attack was engineered
by Castellanos in retaliation for filing the internal complaints. The Ninth Circuit has defined
the parameters of a retaliation claim:
Within the prison context, a viable claim of First Amendment
retaliation entails five basic elements: (1) An assertion that a state actor took
some adverse action against an inmate (2) because of (3) that prisoner's
protected conduct, and that such action (4) chilled the inmate's exercise of
his First Amendment rights, and (5) the action did not reasonably advance
a legitimate correctional goal.10
The Ninth Circuit has “also noted that a plaintiff who fails to allege a chilling effect may still
state a claim if he has suffered some harm.”11 Moreover, “the mere threat of harm can be
an adverse action, regardless of whether it is carried out because the threat itself can have
a chilling effect.”12 Nor need the threat be explicit or specific.13
A prisoner must also show some causal connection between the action taken by the
state actor and the prisoner’s protected conduct. That is, “[t]o prevail on a retaliation claim,
a plaintiff must show that his protected conduct was the substantial or motivating factor
behind the defendant's conduct.” 14
Pullett has pleaded the existence of an adverse action, i.e., the knife attack, and that
he has was engaged in a protected First Amendment activity, i.e., the filing of grievances

10

Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005) (footnote and
citations omitted).
11

Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009) (citing Rhodes, 408 F.3d
at 568 n. 11).
12

Id. at 1270.

13

Id.

14

Id. at 1271 (internal quotation marks and citation omitted).

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against Castellanos. A trier of fact might logically presume that the stabbing had a chilling
effect on Pullett’s First Amendment right to file grievances and lacked any legitimate
penological interest. What Pullett has not pleaded is a factual basis to establish a causal
connection between the protected activity and the harm.
To prevail on this action Pullett must plead and prove the existence of a conspiracy
between Castellanos and the assailants. The elements of a conspiracy are twofold: (1) an
agreement or meeting of the minds to violate constitutional rights; and (2) an actual
deprivation of those rights.15 Pullett’s allegations fall far short of establishing the existence
of an agreement between Castellanos and the assailants or between Castellanos and the
other Defendants. Indeed, that any such agreement can truthfully be alleged under the
facts as presently pleaded is not only questionable, but inherently improbable. To accept
that such a conspiracy existed would require the jury to accept that the Defendants were
willing to risk a criminal prosecution simply because Pullett filed grievances against
Castellanos. That a jury would reach such a conclusion is inherently implausible.
Pullett’s claim as against the Defendants does not survive under an alternative
theory: failure to protect. It is clearly established that the Eighth Amendment imposes a
duty on prison officials to protect prisoners from harm at the hands of other prisoners.16
It need not be shown that the prison official believed or had reason to believe that harm
would actually befall the prisoner; liability may be imposed if the official failed to act despite

15

See Avalos v. Baca, 596 F.3d 583, 592 (9th Cir. 2010); Hart v. Parks, 450 F.3d
1059, 1069 (9th Cir. 2006) (quoting Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2002)).
16

Farmer v. Brennan, 511 U.S. 825, 832–33 (1994).

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the official’s knowledge of a substantial risk of serious harm and fails to take reasonable
measures to abate it. 17
In this case there is no allegation, express or necessarily implied, that the
Defendants or any of them had any actual knowledge of a serious risk that Pullett would
suffer any harm. There is nothing in the Third Amended Complaint that indicates that any
of the Defendants had any knowledge that Pullett was in any danger of being attacked.
There is no allegation that prior to the attack underlying Pullett’s claim any inmate housed
at CSATF had even made any threat against Pullett,18 let alone actually physically
assaulted him. Pullett’s claim is conclusory, based upon supposition and innuendo, not
facts.19 It appears to be based solely upon the fact that he was the lone black amongst
several Caucasians and Hispanics in the immediate vicinity.20 In the absence of at least
some evidence of tension between blacks and Caucasians and Hispanics resulting in at
least the threat, if not the actual occurrence, of a physical altercation, there is simply

17

Id., at 842–47; see Clem v. Lomeli, 566 F.3d 1177, 1181 (9th Cir. 2009)
(applying Farmer).
18

It appeared from the Complaint that Pullett had concerns about an enemy while
housed at Pleasant Valley State Prison. As result of these concerns, Pullett was
transferred to CSATF. Nothing in either the Amended Complaint or the documents
attached to it provide any indication that Pullett had an enemy at CSATF.
19

This is particularly true as to Kelm and Melero, the allegations against which
simply state that they “knew or should have known that plaintiff was a target to get
assaulted by inmates.” Docket 24, p. 13, ¶ 39 (Kelm) and p. 14, ¶ 41 (Melero).
20

The Court does note that it is alleged that the prison was on lock-down at the
time. Pullett has not alleged and nothing in the Third Amended Complaint provides any
information concerning the reason for the lockdown or its relevance to Pullett’s claims.
Moreover, when on lock-down status inmates are usually confined to their cells, not as is
alleged in this case freely roaming the prison corridors and the day room.
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nothing upon which it could be objectively determined that Pullett was in danger of an
assault.
V.

CONCLUSION/ORDER
The Third Amended Complaint does not allege sufficient facts upon which the Court

may grant relief as against any Defendant. “[W]hen a district court has already granted a
plaintiff leave to amend, its discretion in deciding subsequent motions to amend is
particularly broad.”21 The Court has already given Pullett three opportunities to amend his
Complaint. It is apparent that Pullett cannot truthfully plead a plausible cause of action
against the Defendants or any of them; thus, any further amendment would be futile.22
Therefore, the Third Amended Complaint is DISMISSED in its entirety without leave
to amend.
This Court, having fully considered the matter finds that reasonable jurists could not
disagree with this Court’s resolution of his constitutional claims or that jurists could
conclude the issues presented are adequate to deserve encouragement to proceed further.
Accordingly, any appeal would be frivolous or taken in bad faith.23 Plaintiff’s in forma
pauperis status is hereby REVOKED.

21

See Chodos v. West Publ’g Co., 292 F.3d 992, 1003 (9th Cir. 2002) (citation and
internal quotation marks omitted).
22

See Hartman v. California Dept. of Corr. and Rehab., 707 F.3d 1141, 1130 (9th
Cir. 2013) (“A district court may deny leave to amend when amendment would be futile.”);
Lopez v. Smith, 203 F.3d 1122, 1130–31 (9th Cir. 2000) (en banc) (explaining that leave
to amend should be given unless amendment would be futile).
23

28 U.S.C. § 1915(a)(3); see Hooker v. American Airlines, 302 F.3d 1091, 1092
(9th Cir. 2002).
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The Clerk of the Court is directed to enter judgment of dismissal, with prejudice,
which states that the dismissal counts as a “strike” under 42 U.S.C. § 1915(g).
IT IS SO ORDERED this 16th day of June, 2016.
S/ RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE

ORDER DISMISSING THIRD AMENDED COMPLAINT
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