Johnson v. North Kern State Prison et al

Filing 15

ORDER DISMISSING 14 FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND signed by Magistrate Judge Jennifer L. Thurston on 11/1/2017. Second Amended Complaint due within twenty-one (21) days. (Attachments: # 1 Amended Complaint Form). (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CEDRIC CHESTER JOHNSON,
Plaintiff,

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Case No. 1:16-cv-01370-DAD-JLT (PC)
ORDER DISMISSING FIRST AMENDED
COMPLAINT WITH LEAVE TO AMEND

v.
(Doc. 14)
NORTH KERN STATE PRISON, et
al.,

21-DAY DEADLINE

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Defendants.
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In this action, Plaintiff alleges that, correctional officers walked out of the dorm and

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allowed 30-35 Crip gang members in, who beat him and another inmate. Despite previously

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being informed of the requirements to link individual officer to each element of his claim, the

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First Amended Complaint does not do so. Thus, the First Amended Complaint is DISMISSED

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with leave to amend. This is the last opportunity Plaintiff will be given to correct defects in his

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pleading.

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A.

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The Court is required to screen complaints brought by prisoners seeking relief against a

Screening Requirement

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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, malicious, fail to state a claim upon which relief may be granted, or that seek monetary

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relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2); 28 U.S.C.
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§ 1915(e)(2)(B)(i)-(iii). If an action is dismissed on one of these three bases, a strike is imposed

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per 28 U.S.C. § 1915(g). An inmate who has had three or more prior actions or appeals dismissed

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as frivolous, malicious, or for failure to state a claim upon which relief may be granted, and has

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not alleged imminent danger of serious physical injury does not qualify to proceed in forma

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pauperis. See 28 U.S.C. § 1915(g); Richey v. Dahne, 807 F.3d 1201, 1208 (9th Cir. 2015).

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B.

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Plaintiff alleges that “in November or December of 2015, the C/O’s M. Jones, Ms.

Summary of Plaintiff’s First Amended Complaint

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Kennerter, C/O Rocha, C/o Speakman walked out of the dorm and allowed 30-35 Crip gang

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members to enter, who brutally beat Plaintiff and another inmate.” (Doc. 14, p. 4.) Plaintiff lists

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five inmates who allegedly witnessed the incident and alleges that the defendants have a duty to

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protect prisoners from violence at the hands of other prisoners. (Id.) The only change in the First

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Amended Complaint is that Plaintiff has inserted the four defendants’ names into his brief factual

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allegations. He still has not stated sufficient facts to state a cognizable claim. Plaintiff may be

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able to correct the deficiencies in his pleading. Thus, he is being given the pleading requirements,

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the standards for deliberate indifference to his safety and one last opportunity to amend his

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allegations.

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C.

Pleading Requirements
1.

Federal Rule of Civil Procedure 8(a)

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"Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited

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exceptions," none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534

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U.S. 506, 512 (2002); Fed. R. Civ. Pro. 8(a). A complaint must contain "a short and plain

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statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. Pro. 8(a).

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"Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and

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the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512.

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Detailed factual allegations are not required, but A[t]hreadbare recitals of the elements of a

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cause of action, supported by mere conclusory statements, do not suffice.@ Ashcroft v. Iqbal, 556

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

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Plaintiff must set forth Asufficient factual matter, accepted as true, to >state a claim that is
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plausible on its face.=@ Iqbal, 556 U.S. at 678, quoting Twombly, 550 U.S. at 555. Factual

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allegations are accepted as true, but legal conclusions are not. Iqbal. at 678; see also Moss v. U.S.

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Secret Service, 572 F.3d 962, 969 (9th Cir. 2009); Twombly, 550 U.S. at 556-557.

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While Aplaintiffs [now] face a higher burden of pleadings facts . . . ,@ Al-Kidd v. Ashcroft,

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580 F.3d 949, 977 (9th Cir. 2009), the pleadings of pro se prisoners are still construed liberally

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and are afforded the benefit of any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).

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However, "the liberal pleading standard . . . applies only to a plaintiff's factual allegations," Neitze

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v. Williams, 490 U.S. 319, 330 n.9 (1989), "a liberal interpretation of a civil rights complaint may

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not supply essential elements of the claim that were not initially pled," Bruns v. Nat'l Credit

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Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) quoting Ivey v. Bd. of Regents, 673 F.2d 266,

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268 (9th Cir. 1982), and courts are not required to indulge unwarranted inferences, Doe I v. Wal-

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Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation

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omitted). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and

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“facts that are ‘merely consistent with’ a defendant’s liability” fall short of satisfying the

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plausibility standard. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949; Moss, 572 F.3d at 969.

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If he chooses to file a second amended complaint, Plaintiff should endeavor to make it as

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concise as possible, but should state the factual basis for the elements of his claims against each

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Defendant.

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2.

Linkage Requirement

The Civil Rights Act requires that there be an actual connection or link between the

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actions of the defendants and the deprivation alleged to have been suffered by Plaintiff. See

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Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362

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(1976). The Ninth Circuit has held that A[a] person >subjects= another to the deprivation of a

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constitutional right, within the meaning of section 1983, if he does an affirmative act, participates

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in another=s affirmative acts or omits to perform an act which he is legally required to do that

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causes the deprivation of which complaint is made.@ Johnson v. Duffy, 588 F.2d 740, 743 (9th

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Cir. 1978). In order to state a claim for relief under section 1983, Plaintiff must link each named

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defendant with some affirmative act or omission that demonstrates a violation of Plaintiff=s
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federal rights.

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Plaintiff must clearly state which Defendant(s) he feels are responsible for each violation

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of his constitutional rights and their factual basis as his complaint must put each Defendant on

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notice of the factual basis of Plaintiff’s claims against him or her. See Austin v. Terhune, 367

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F.3d 1167, 1171 (9th Cir. 2004).

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3.

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Eleventh Amendment Immunity

Plaintiff persists in naming the North Kern State Prison as a defendant. As stated in the

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first screening order, Plaintiff may not sustain an action against a state prison. The Eleventh

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Amendment prohibits federal courts from hearing suits brought against an un-consenting state.

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Brooks v. Sulphur Springs Valley Elec. Co., 951 F.2d 1050, 1053 (9th Cir. 1991); see also

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Seminole Tribe of Fla. v. Florida, 116 S.Ct. 1114, 1122 (1996); Puerto Rico Aqueduct Sewer

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Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993); Austin v. State Indus. Ins. Sys., 939 F.2d

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676, 677 (9th Cir. 1991). The Eleventh Amendment bars suits against state agencies as well.

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See Natural Resources Defense Council v. California Dep=t of Tranp., 96 F.3d 420, 421 (9th Cir.

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1996); Brooks v. Sulphur Springs Valley Elec. Co., 951 F.2d 1050, 1053 (9th Cir. 1991); Taylor v.

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List, 880 F.2d 1040, 1045 (9th Cir. 1989) (concluding that Nevada Department of Prisons was a

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state agency entitled to Eleventh Amendment immunity); Mitchell v. Los Angeles Community

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College Dist., 861 F.2d 198, 201 (9th Cir. 1989).

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AThough its language might suggest otherwise, the Eleventh Amendment has long been

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construed to extend to suits brought against a state by its own citizens, as well as by citizens of

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other states.@ Brooks, 951 F.2d at 1053 (citations omitted). AThe Eleventh Amendment=s

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jurisdictional bar covers suits naming state agencies and departments as defendants, and applies

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whether the relief is legal or equitable in nature.@ Id. (citation omitted). Because the North Kern

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State Prison is a part of the California Department of Corrections, which is a state agency, it is

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entitled to dismissal based on Eleventh Amendment. Plaintiff cannot pursue North Kern State

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Prison in this action and should refrain from naming it in the second amended complaint.

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D.

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Claim for Relief
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Eighth Amendment -- Failure to Protect

“The treatment a prisoner receives in prison and the conditions under which he is
confined are subject to scrutiny under the Eighth Amendment.” Farmer v. Brennan, 511 U.S.
825, 832 (1994) (citing Helling v. McKinney, 509 U.S. 25, 31 (1993). Prison officials have a duty

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“to take reasonable measures to guarantee the safety of inmates, which has been interpreted to

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include a duty to protect prisoners.” Labatad v. Corrections Corp. of America, 714 F.3d 1155,

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1160 (9th Cir. 2013) (citing Farmer, 511 U.S. at 832-33; Hearns v. Terhune, 413 F.3d 1036, 1040
(9th Cir. 2005)).

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To establish a violation of this duty, the prisoner must “show that the officials acted with

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deliberate indifference to threat of serious harm or injury to an inmate.” Labatad, at 1160 (citing

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Gibson v. County of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002). This involves both objective
and subjective components.
First, objectively, the alleged deprivation must be “sufficiently serious” and where a

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failure to prevent harm is alleged, “the inmate must show that he is incarcerated under conditions

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posing a substantial risk of serious harm.” Id. at 834, quoting Rhodes v. Chapman, 452 U.S. 337,

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349 (1981). Second, subjectively, the prison official must “know of and disregard an excessive

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risk to inmate health or safety.” Id. at 837; Anderson v. County of Kern, 45 F.3d 1310, 1313 (9th

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Cir. 1995). A prison official must “be aware of facts from which the inference could be drawn

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that a substantial risk of serious harm exists, and . . . must also draw the inference.” Farmer, 511

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U.S. at 837. Liability may follow only if a prison official “knows that inmates face a substantial

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risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.”

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Id. at 847.

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Further, the Supreme Court has stated that a remedy for unsafe conditions need not await

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a tragic event; rather, where a risk/injury has yet to occur, the plaintiff's burden would be to prove

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that his future health/safety is unreasonably endangered, “that it is contrary to current standards of

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decency for anyone to be so exposed against his will, and that prison officials are deliberately

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indifferent to his plight.” Helling, 509 U.S. at 33-35.

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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 to

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his future health . . . .” Farmer, at 843 (citing Helling, 509 U.S. at 35). The Supreme Court has

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explained that “deliberate indifference entails something more than mere negligence . . . [but]

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something less than acts or omissions for the very purpose of causing harm or with the knowledge

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that harm will result.” Id., at 835. The Court defined this “deliberate indifference” standard as

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equal to “recklessness,” in which “a person disregards a risk of harm of which he is aware.” Id.,

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at 836-37.
Plaintiff’s allegations fail to show that any of the named defendants knew that

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circumstances existed such that their leaving the dorm would result in a substantial risk of serious

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harm to Plaintiff. Simply stating that four officers left and that 30-35 gang members entered the

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dorm and thereafter beat Plaintiff requires the Court to indulge unwarranted inferences. Doe I,

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572 F.3d at 681. Plaintiff’s allegations amount to nothing more than the “sheer possibility” that

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the named officers somehow acted unlawfully, which is not sufficient. Iqbal, 556 U.S. at 678,

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129 S. Ct. at 1949; Moss, 572 F.3d at 969.

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II.

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CONCLUSION
For the reasons set forth above, Plaintiff’s First Amended Complaint is dismissed with

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leave to file a second amended complaint within 21 days. If Plaintiff no longer desires to pursue

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this action, he may file a notice of voluntary dismissal. If Plaintiff needs an extension of time to

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comply with this order, Plaintiff shall file a motion seeking an extension of time no later than 21

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days from the date of service of this order.
Plaintiff must demonstrate in any second amended complaint how the conditions
complained of have resulted in a deprivation of Plaintiff's constitutional rights. See Ellis v.
Cassidy, 625 F.2d 227 (9th Cir. 1980). The second amended complaint must allege in specific
terms how each named defendant is involved. There can be no liability under section 1983 unless
there is some affirmative link or connection between a defendant’s actions and the claimed
deprivation. Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir.
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1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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Plaintiff's second amended complaint should be brief. Fed. R. Civ. P. 8(a). Such a short

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and plain statement must "give the defendant fair notice of what the . . . claim is and the grounds

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upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) quoting Conley v.

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Gibson, 355 U.S. 41, 47 (1957). Although accepted as true, the "[f]actual allegations must be

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[sufficient] to raise a right to relief above the speculative level . . . ." Twombly, 550 U.S. 127, 555

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(2007) (citations omitted).
Plaintiff is further advised that an amended complaint supercedes the original, Lacey v.

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Maricopa County, Nos. 09-15806, 09-15703, 2012 WL 3711591, at *1 n.1 (9th Cir. Aug. 29,

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2012) (en banc), and must be "complete in itself without reference to the prior or superceded

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pleading," Local Rule 220.
The Court provides Plaintiff with one last opportunity to amend to cure the deficiencies

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identified by the Court in this order. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987).

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

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

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complaints).
Based on the foregoing, the Court ORDERS:

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Plaintiff's First Amended Complaint is dismissed, with leave to amend;

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2.

The Clerk's Office shall send Plaintiff a civil rights complaint form;

3.

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Within 21 days from the date of service of this order, Plaintiff must file a second

amended complaint curing the deficiencies identified by the Court in this order or a notice of
voluntary dismissal; and
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If Plaintiff fails to comply with this order, it will be recommended that this

action be dismissed for failure to obey a court order and for failure to state a claim.

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IT IS SO ORDERED.
Dated:

November 1, 2017

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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