Lopez v. North Kern State Prison et al
Filing
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ORDER Directing Clerk of Court to Randomly Assign District Judge; FINDINGS and RECOMMENDATIONS to Dismiss Certain Claims and Defendants re 9 , signed by Magistrate Judge Barbara A. McAuliffe on 12/20/17. Referred to Judge Drozd. Objections to F&R Due Within Fourteen Days. Case is assigned to District Judge Dale A. Drozd and Magistrate Judge Barbara A. McAuliffe. The New Case No. is: 1:16-cv-0881-DAD-BAM. (Gonzalez, R)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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RODRIGO LOPEZ,
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Plaintiff,
v.
NORTH KERN STATE PRISON, et al.,
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Defendants.
Case No. 1:16-cv-00881-BAM (PC)
ORDER DIRECTING CLERK OF COURT
TO RANDOMLY ASSIGN DISTRICT
JUDGE
FINDINGS AND RECOMMENDATIONS TO
DISMISS CERTAIN CLAIMS AND
DEFENDANTS
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(ECF No. 9)
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FOURTEEN-DAY DEADLINE
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Plaintiff Rodrigo Lopez (“Plaintiff”) is a state prisoner proceeding pro se and in forma
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pauperis in this civil rights action under 42 U.S.C. § 1983. Plaintiff initiated this action on June
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22, 2016. (ECF No. 1.) On April 14, 2017, the Court screened Plaintiff’s complaint and found
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that it stated a cognizable claim against Defendant McDermott for failure to intervene in violation
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of the Eighth Amendment, but failed to state any other claims. The Court directed Plaintiff to
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either file a first amended complaint or notify the Court that he was willing to proceed only on the
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cognizable claims. (ECF No. 6.) Plaintiff’s first amended complaint, filed on May 24, 2017, is
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currently before the Court for screening. (ECF No. 9.)
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I.
Screening Requirement and Standard
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The Court is required to screen complaints brought by prisoners seeking relief against a
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governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C.
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§ 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous
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or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary
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relief from a defendant who is immune from such relief.
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1915(e)(2)(B)(ii).
28 U.S.C. §§ 1915A(b);
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A complaint must contain “a short and plain statement of the claim showing that the
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pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not
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required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere
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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell
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Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken
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as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores,
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Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).
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To survive screening, Plaintiff’s claims must be facially plausible, which requires
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sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable
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for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S.
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Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted
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unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the
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plausibility standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969.
Plaintiff’s Allegations
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II.
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Plaintiff is currently incarcerated at Valley State Prison in Chowchilla, California. The
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events in the complaint are alleged to have occurred while Plaintiff was incarcerated at North
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Kern State Prison (“NKSP”) in Delano, California. Plaintiff names the following defendants: (1)
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Scott Kernan, Secretary, California Department of Corrections and Rehabilitation (“CDCR”); (2)
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Warden Sandy Pennywell; and (3) Correctional Officer J. McDermott.
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Plaintiff alleges as follows: Defendant McDermott knowingly and deliberately placed
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Plaintiff, a non-gang member, in a two-man cell with Inmate Cancel, a known gang member. On
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June 26, 2014, Inmate Cancel attacked Plaintiff, without provocation and any fault on Plaintiff’s
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part, causing Plaintiff to suffer a broken nose, broken hip/leg, multiple bruises, contusions, and
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severe injuries requiring several surgeries and ongoing medical treatment. The attack occurred
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when Plaintiff asked Inmate Cancel to remove an air vent cover that Inmate Cancel had installed.
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Inmate Cancel told Plaintiff that he ran things in their cell and that he and his gang ran things in
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the prison. Inmate Cancel then attacked Plaintiff without warning. This attack lasted about four
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to five hours, during which time Plaintiff did not receive help from the prison guards despite
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yelling for help.
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A disciplinary hearing was held at NKSP regarding this incident, where Plaintiff was
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found not guilty of fighting or any other rule violation. Defendant McDermott was the floor
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officer that stopped the beating, but lied on his report, stating the Plaintiff and Inmate Cancel
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were striking each other with fists in the facial and upper torso area and that he gave a verbal
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warning to get down. Plaintiff alleges that Defendant McDermott was a short distance away,
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making it virtually impossible for him not to hear the attack, but chose to do nothing. Plaintiff
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asserts that, on the day before the incident in question, Defendant McDermott had allowed a
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different gang-affiliated inmate into another cell to fight, and Defendant McDermott was a short
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distance away and did nothing to stop it.
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As a result of the attack, Plaintiff alleges that his hip was fractured, that he could not stand
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up without help, that he was in a lot of pain due to bone fractures, and that he had no upper
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strength to fight back. Plaintiff needed emergency surgery for a broken nose and fractured hip.
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Plaintiff also sustained two black eyes, a swollen face, busted lip, and bleeding and bruising all
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over his body.
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approximately every twelve to fifteen years from the date of his initial surgery. Plaintiff states
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that he has had ongoing medical problems as a result of his injuries. Following his hip
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replacement, Plaintiff’s left leg is now shorter than his right, he walks with a limp, and he is now
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permanently disabled. Plaintiff asserts that he is traumatized by this incident, and that he fears
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being attacked again for no reason.
Plaintiff required a hip replacement, which will require future surgeries
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Plaintiff further alleges that Defendant Kernan, the Secretary of the CDCR, was
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responsible for initiating rule, regulations, training and policies for all CDCR prisons and
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supervising and training all CDCR personnel subordinate to him.
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Plaintiff contends that
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Defendant Kernan ultimately provided, allowed or promulgated policies and practices that
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allowed CDCR personnel to willingly fail to respond to Plaintiff’s need for protection from an
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attack. Plaintiff asserts that Defendant Kernan and his subordinates failed to protect Plaintiff
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from attack by a known gang member.
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Plaintiff also alleges that Defendant Pennywell was the warden at NKSP, and she too was
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responsible for the care, safety, and welfare of all inmates of CDCR. Defendant Pennywell failed
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to protect Plaintiff while in CDCR’s care, and her policies allowed a known gang member to
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attack a non-gang member.
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Plaintiff seeks compensatory and punitive damages, along with declaratory and injunctive
relief.
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III.
Discussion
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A. Supervisory Liability – Warden Pennywell and Secretary Kernan
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Liability may not be imposed on supervisory personnel for the actions or omissions of
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their subordinates under the theory of respondeat superior. Iqbal, 556 U.S. at 676–77; Simmons
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v. Navajo Cty., Ariz., 609 F.3d 1011, 1020–21 (9th Cir. 2010); Ewing v. City of Stockton, 588
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F.3d 1218, 1235 (9th Cir. 2009); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).
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Supervisors may be held liable only if they “participated in or directed the violations, or knew of
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the 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). Thus, a supervisor’s participation can include his “own culpable
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action or inaction in the training, supervision, or control of his subordinates,” “his acquiescence in
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the constitutional deprivations of which the complaint is made,” or “conduct that showed a
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reckless or callous indifference to the rights of others.” Starr, 652 F.3d at 1205–06. Supervisory
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officials “cannot be held liable unless they themselves” violated a constitutional right. Iqbal, 556
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U.S. at 676.
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Plaintiff’s general allegations that Defendants Kernan and Pennywell were responsible for
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instituting policies and regulations, training subordinates and ensuring the welfare of all inmates
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of the CDCR are insufficient to state a claim. Plaintiff’s allegations relate only to Defendant
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Kernan and Pennywell’s supervisory roles. Plaintiff has not alleged facts showing that Defendant
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Kernan or Defendant Pennywell instituted a policy that caused Plaintiff’s alleged injuries, that
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Defendant Kernan or Defendant Pennywell participated in or directed the alleged violations, or
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that Defendant Kernan or Defendant Pennywell knew of the alleged violations and failed to
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prevent them. Despite being provided with the relevant pleading standard regarding supervisory
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liability, Plaintiff has been unable to adequately state a claim against supervisory personnel. The
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Court will therefore recommend that Defendants Kernan and Pennywell be dismissed from this
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action.
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B. Eighth Amendment – Failure to Protect
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“The Eighth Amendment’s prohibition against cruel and unusual punishment protects
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prisoners not only from inhumane methods of punishment but also from inhumane conditions of
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confinement.” Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). Prison officials
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therefore have a “duty to ensure that prisoners are provided adequate shelter, food, clothing,
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sanitation, medical care, and personal safety.” Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir.
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2000) (citations omitted). A prison official is liable under the Eighth Amendment only if the
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official “knows of and disregards an excessive risk to inmate health or safety; the official must
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both be aware of facts from which the inference could be drawn that a substantial risk of serious
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harm exists, and [the official] must also draw the inference.” Farmer v. Brennan, 511 U.S. 825,
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837 (1994).
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Plaintiff has not alleged facts establishing that Defendant McDermott was aware of a
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substantial risk of serious harm to Plaintiff when he was placed in the same cell as Inmate Cancel,
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and that Defendant McDermott disregarded that risk. Even if Defendant McDermott knew that
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Inmate Cancel was a gang member, Plaintiff does not allege that Defendant McDermott knew that
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Plaintiff was at risk of attack because he was a non-gang member. In fact, Plaintiff alleges that
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Inmate Cancel stated he attacked Plaintiff without thinking, which suggests that Defendant
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McDermott could not have known that Plaintiff was at risk.
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Plaintiff also alleges that as a non-gang member, he should never have been housed with
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Inmate Cancel. However, Plaintiff’s allegations do not indicate that Defendant McDermott was
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aware of any specific threat to Plaintiff’s safety or well-being. Further, Plaintiff’s allegations
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concerning the impropriety of gang members being housed with non-gang members fails to state
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a claim for failure to protect. See Hoptowit v. Ray, 682 F.2d 1237, 1256 (9th Cir. 1982),
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abrogated on other grounds by Sandin v. Conner, 515 U.S. 472 (1995) (“[M]isclassification does
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not itself inflict pain within the meaning of the Eighth Amendment.”) Indeed, even housing
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inmates of opposing gangs in the same cell, without more, fails to state a claim under the Eighth
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Amendment. See Labatad v. Corrections Corp. of America, 714 F.3d 1155, 1161 (9th Cir. 2013)
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As a result, Plaintiff fails to state a claim for failure to protect in violation of the Eighth
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Amendment against Defendant McDermott regarding Plaintiff being housed with Inmate Cancel.
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C. Eighth Amendment – Failure to Intervene
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Prison officials are required “to take reasonable steps to protect inmates from physical
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abuse.” Hoptowit, 682 F.2d at 1250.
“[A] prison official can violate a prisoner’s Eighth
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Amendment rights by failing to intervene.” Robins v. Meecham, 60 F.3d 1436, 1442 (9th Cir.
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1995).
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Plaintiff alleges that Defendant McDermott was a short distance away from the cell during
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the fight, Plaintiff yelled for hours for help, and Defendant McDermott knew that Plaintiff and
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Inmate Cancel were fighting and did nothing to stop it until hours later. The Court finds that
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Plaintiff has stated a cognizable Eighth Amendment claim for failure to intervene against
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Defendant McDermott.
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D. False Report – Defendant McDermott
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Plaintiff also alleges that Defendant McDermott lied on his report regarding the incident.
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False incident reports alone are not actionable under § 1983, because filing a false report does not
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violate a right secured by the Constitution or laws of the United States. See Sandin, 515 U.S. at
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484 (holding that inmate’s liberty interest is generally infringed only by an “atypical and
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significant hardship in relation to the ordinary incidents of prison life”). A falsified incident
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report, leading to a finding of not guilty and apparently no disciplinary consequences for Plaintiff,
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is not severe enough to amount to a deprivation of a protected liberty interest under Sandin.
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Specifically, Defendant McDermott’s alleged lies on the incident report do not impose an atypical
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and significant hardship or inevitably affect the duration of Plaintiff’s confinement, and thus do
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not state a claim under § 1983. See Smith v. Mensinger, 293 F.3d 641, 653–54 (3d Cir. 2002) (no
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§ 1983 claim was stated for allegedly false charges because the disciplinary confinement imposed
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was too short to amount to an atypical and significant hardship under Sandin). Plaintiff has been
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unable to cure this deficiency despite an opportunity to amend his complaint.
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E. Declaratory Relief
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Plaintiff seeks a declaration that his rights were violated by defendants. “A declaratory
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judgment, like other forms of equitable relief, should be granted only as a matter of judicial
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discretion, exercised in the public interest.” Eccles v. Peoples Bank of Lakewood Village, 333
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U.S. 426, 431 (1948). “Declaratory relief should be denied when it will neither serve a useful
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purpose in clarifying and settling the legal relations in issue nor terminate the proceedings and
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afford relief from the uncertainty and controversy faced by the parties.” United States v.
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Washington, 759 F.2d 1353, 1357 (9th Cir. 1985).
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In the event that this action reaches trial and the trier of fact returns a verdict in favor of
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Plaintiff, the verdict will be a finding that Plaintiff's constitutional rights were violated.
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Accordingly, a declaration that a defendant violated Plaintiff's rights is unnecessary, and the
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Court will recommend that Plaintiff’s request for declaratory relief be denied.
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F. Injunctive Relief
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Plaintiff seeks several forms of injunctive relief. However, Plaintiff is no longer housed at
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NKSP, where he alleges the incidents at issue occurred, and where Defendant McDermott is
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employed. Therefore, any injunctive relief he seeks against officials at NKSP is moot. See
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Andrews v. Cervantes, 493 F.3d 1047, 1053 n.5 (9th Cir. 2007) (prisoner’s claims for injunctive
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relief generally become moot upon transfer) (citing Johnson v. Moore, 948 F.2d 517, 519 (9th
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Cir. 1991) (per curiam) (holding claims for injunctive relief “relating to [a prison’s] policies are
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moot” when the prisoner has been moved and “he has demonstrated no reasonable expectation of
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returning to [the prison]”)). The Court will therefore recommend that Plaintiff’s request for
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injunctive relief be denied.
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IV.
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The Court finds that Plaintiff has stated a cognizable Eighth Amendment claim against
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Defendant McDermott for the failure to intervene while Inmate Cancel was attacking Plaintiff.
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However, Plaintiff has failed to state any other cognizable claims. Despite being provided with
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the relevant legal and pleading standards, Plaintiff has been unable to cure the remaining
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deficiencies in his complaint, and further leave to amend is not warranted. Lopez v. Smith, 203
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F.3d 1122, 1130 (9th Cir. 2000).
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Conclusion and Recommendation
Accordingly, the Clerk of the Court is HEREBY DIRECTED to randomly assign a district
judge to this action.
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Further, it is HEREBY RECOMMENDED as follows:
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1. This action proceed on Plaintiff’s Eighth Amendment claim against Defendant
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McDermott for the failure to intervene while Inmate Cancel was attacking Plaintiff as
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set forth in Plaintiff’s first amended complaint filed on May 24, 2017;
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2. Plaintiff’s request for injunctive and declaratory relief be denied; and
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3. All other claims and defendants be dismissed from this action.
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These Findings and Recommendations will be submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within
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fourteen (14) days after being served with these Findings and Recommendations, Plaintiff may
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file written objections with the Court. The document should be captioned “Objections to
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Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file
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objections within the specified time may result in the waiver of the “right to challenge the
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magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014)
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(citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
IT IS SO ORDERED.
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Dated:
/s/ Barbara
December 20, 2017
A. McAuliffe
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UNITED STATES MAGISTRATE JUDGE
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