McClane v. Casas et al

Filing 8

ORDER REQUIRING Plaintiff to Either File an Amended Complaint or Notify Court of Willingness to Proceed only on Cognizable Claims; Thirty-Day Deadline signed by Magistrate Judge Michael J. Seng on 10/14/2017. (Attachments: # 1 Amended Complaint Form)(Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MATTHEW McCLANE,

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Plaintiff,

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v.
G. CASAS, et al.,

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Defendants.

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CASE No. 1:17-cv-0928-LJO-MJS (PC)
ORDER REQUIRING PLAINTIFF TO
EITHER FILE AN AMENDED COMPLAINT
OR NOTIFY COURT OF WILLINGNESS
TO PROCEED ONLY ON COGNIZABLE
CLAIMS
(ECF NO. 1)
THIRTY-DAY DEADLINE

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in a civil rights

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action pursuant to 42 U.S.C. § 1983. Plaintiff‟s Complaint is before the Court for

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screening.

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I.

Screening Requirement

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The in forma pauperis statute provides, “Notwithstanding any filing fee, or any

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portion thereof, that may have been paid, the court shall dismiss the case at any time if

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

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relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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II.

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Pleading Standard
Section 1983 “provides a cause of action for the deprivation of any rights,

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privileges, or immunities secured by the Constitution and laws of the United States.”

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Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983).

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Section 1983 is not itself a source of substantive rights, but merely provides a method for

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vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94

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(1989).

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To state a claim under § 1983, a plaintiff must allege two essential elements:

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(1) that a right secured by the Constitution or laws of the United States was violated and

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(2) that the alleged violation was committed by a person acting under the color of state

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law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d

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1243, 1245 (9th Cir. 1987).

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A complaint must contain “a short and plain statement of the claim showing that

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the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations

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are not required, but “[t]hreadbare recitals of the elements of a cause of action,

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supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S.

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

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Plaintiff must set forth “sufficient factual matter, accepted as true, to state a claim to relief

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that is plausible on its face.” Id. Facial plausibility demands more than the mere

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possibility that a defendant committed misconduct and, while factual allegations are

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accepted as true, legal conclusions are not. Id. at 677-78.

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III.

Plaintiff’s Allegations

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At all relevant times Plaintiff was an inmate housed at California Substance Abuse

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Treatment Facility (“CSATF”) in Corcoran, California. He names as Defendants

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Correctional Officer (“CO”) G. Casas, CO A. Carillo, CO A. Ramirez, CO E. Wilson, Lt. C

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Frazier, and Warden S. Sherman.

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Plaintiff‟s allegations can be fairly summarized as follows:

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On January 16, 2016, Plaintiff was moved to a cell with inmate Lagarde, a gang

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member. This cell move was conducted by CO Casas despite knowledge of Lagarde‟s

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past violence towards cell mates and his prison gang affiliation. For safety reasons,
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such an inmate was supposed to be double-celled only with inmate of the same-gang.

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Plaintiff is a gang member dropout.

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The next day, after Plaintiff learned that Lagarde was a gang member, Plaintiff

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asked CO Carrillo for a cell move. CO Carillo told Plaintiff he could not have a cell move

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for 6 months for any reason. Plaintiff then asked CO Ramirez for a cell move; Ramirez

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responded that he did not do cell moves. Finally, Plaintiff asked CO Wilson to be moved,

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but was denied again.

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On January 27, 2016, inmate Lagarde severely assaulted Plaintiff.

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Plaintiff filed an inmate grievance regarding the incident and was interviewed by

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Lt. Frazier. Frazier‟s report suggests he asked Plaintiff a number of questions, but really

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he asked only two: whether Plaintiff talked with a supervisor regarding his issue and

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whether he completed a CDCR 22 form for a bed move. Lt. Frazier falsified the

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interview.

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Each of the Defendants was aware of inmate Lagarde‟s recent violence against

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cell mates and his gang affiliation. They nonetheless placed or retained Plaintiff in the

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cell despite Plaintiff‟s requests for a move.

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Plaintiff brings suit for a violation of his Eighth Amendment rights as well as state

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law claims for negligence and intentional infliction of emotional distress. He seeks

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compensatory and punitive damages as well as injunctive relief.

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IV.

Analysis

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A.

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Under Section 1983, a plaintiff bringing an individual capacity claim must

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demonstrate that each Defendant personally participated in the deprivation of his rights.

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See Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). There must be an actual

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connection or link between the actions of the Defendants and the deprivation alleged to

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have been suffered by Plaintiff. See Monell v. Dep‟t of Soc. Servs., 436 U.S. 658, 691,

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695 (1978).

Linkage and Supervisory Liability

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Plaintiff seeks to impose liability against Warden Sherman on account of his

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supervisory role. Government officials, however, may not be held liable for the actions of

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their subordinates under a theory of respondeat superior. Monell, 436 U.S. at 691. Since

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a government official cannot be held liable under a theory of vicarious liability in § 1983

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actions, Plaintiff must plead sufficient facts showing that the official has violated the

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Constitution through his own individual actions by linking each named Defendant with

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some affirmative act or omission that demonstrates a violation of Plaintiff's federal rights.

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Iqbal, 556 U.S. at 676.

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Liability may be imposed on supervisory defendants under § 1983 only if the

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supervisor: (1) personally participated in the deprivation of constitutional rights or

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directed the violations or (2) knew of the violations and failed to act to prevent them.

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Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Taylor v. List, 880 F.2d 1040, 1045

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(9th Cir. 1989). Here, Defendant Sherman cannot be held liable for being generally

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deficient in his supervisory duties.

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B.

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Plaintiff is suing the Defendants in their official and individual capacities. “The

Eleventh Amendment Immunity

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Eleventh Amendment bars suits for money damages in federal court against a state, its

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agencies, and state officials in their official capacities.” Aholelei v. Dept. of Public Safety,

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488 F.3d 1144, 1147 (9th Cir. 2007) (citations omitted). However, the Eleventh

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Amendment does not bar suits seeking damages against state officials in their personal

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capacities, Hafer v. Melo, 502 U.S. 21, 30 (1991); Porter v. Jones, 319 F.3d 483, 491

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(9th Cir. 2003), or suits for declaratory or injunctive relief brought against state officials in

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their official capacities, Austin v. State Indus. Ins. System, 939 F.2d 676, 680 fn.2 (9th

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Cir. 1991). Thus, to the extent Plaintiff seeks damages against any of the Defendants in

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their official capacity, he is barred by the Eleventh Amendment.

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C.

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The Eighth Amendment protects prisoners from inhumane methods of

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Eighth Amendment Failure to Protect

punishment and from inhumane conditions of confinement. Morgan v. Morgensen, 465
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F.3d 1041, 1045 (9th Cir. 2006). Prison officials have a duty under the Eighth

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Amendment to protect prisoners from violence at the hands of other prisoners because

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being violently assaulted in prison is simply not part of the penalty that criminal offenders

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pay for their offenses against society. Farmer v. Brennan, 511 U.S. 825, 833–34 (1994);

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Clem v. Lomeli, 566 F.3d 1177, 1181 (9th Cir. 2009); Hearns v. Terhune, 413 F.3d 1036,

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1040 (9th Cir. 2005). However, prison officials are liable under the Eighth Amendment

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only if they demonstrate deliberate indifference to conditions posing a substantial risk or

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serious harm to an inmate; and it is well settled that deliberate indifference occurs when

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

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harm. Farmer, 511 U.S. at 834, 841; Clem, 566 F.3d at 1181; Hearns, 413 F.3d at 1040.

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The prison official need not “believe to a moral certainty that one inmate intends to attack

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another at a given place at a time certain before [he] is obligated to take steps to prevent

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such an assault.” Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir.1986). However, before

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being required to act the prison official must have more than a “mere suspicion” that an

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attack will occur. See id.

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The obviousness of the risk may be sufficient to establish knowledge. See

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Farmer, 511 U.S. at 842; Wallis v. Baldwin, 70 F.3d 1074, 1077 (9th Cir.1995). Thus, “a

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factfinder may conclude that a prison official knew of a substantial risk from the very fact

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that the risk was obvious.” Farmer, 511 U.S. at 842. “[S]peculative and generalized fears

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of harm at the hands of other prisoners do not rise to a sufficiently substantial risk of

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serious harm.” Williams v. Wood, 223 Fed. Appx. 670, 671, 2007 WL 654223, at *1 (9th

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Cir. 2007).

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To establish an Eighth Amendment constitutional violation stemming from a

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failure to protect, two requirements must be met. Farmer, 511 U.S. at 834. “First, the

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deprivation alleged must be, objectively, „sufficiently serious,‟” that is, “the inmate must

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show that he is incarcerated under conditions posing a substantial risk of serious harm.”

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Id. (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). Second, “a prison official must

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have a „sufficiently culpable state of mind,‟” which is “„deliberate indifference‟ to inmate
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health or safety.” Farmer, 511 U.S. at 834 (quoting Wilson, 501 U.S. at 297, 302-03).

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The officer must “know[ ] of and disregard[ ] an excessive risk to inmate health or safety;

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the official must both be aware of facts from which the inference could be drawn that a

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

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511 U.S. at 837. In other words, an Eighth Amendment failure to protect claim has both

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an objective component and a subjective component.

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In at least some contexts, a general fear of harm based on status may give rise to

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a duty to protect an inmate. While some circuits have concluded that, “a deliberate

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indifference claim cannot be predicated merely on knowledge of general risk of violence

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in prison,” Weiss v. Cooley, 230 F.3d 1027, 1032 (7th Cir. 2000) (citing James v.

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Milwaukee Cnty., 956 F.2d 696, 701 (7th Cir. 1992), others, including the Ninth Circuit,

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have held that a serious danger may be present when a prisoner has a special attribute

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which should put prison officials on alert, such as having been an informer or being

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placed in protective custody. See Berg v. Kincheloe, 794 F.2d 457 (9th Cir. 1986)

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(unrefuted allegations that a plaintiff was in protective custody because his life was in

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danger and that he warned a guard of the danger were sufficient to survive a motion for

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summary judgment); Gullatte v. Potts, 654 F.2d 1007 (5th Cir. 1981) (a prison official

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who is aware that “snitches” are subject to danger in the general population may have a

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duty to protect a snitch).

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In this case, Plaintiff alleges that he was housed and/or retained with inmate

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Lagarde despite CO Casas, CO Carillo, CO Ramirez, and CO Wilson‟s knowledge of (1)

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Lagarde‟s history of cell mate violence, (2) his gang affiliation, and (3) Plaintiff‟s status as

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a gang member dropout. Each of these allegations, standing alone, suggests an

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excessive risk of serious harm to Plaintiff‟s health or safety. The Defendants‟ failure to

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alleviate that risk is sufficient to show deliberate indifference. Plaintiff has thus

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adequately stated an Eighth Amendment failure to protect claim against these four

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Defendants.

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D.

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Plaintiff next brings suit against Lt. Frazier for falsifying information during the

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inmate grievance process. But Defendant‟s action in responding to Plaintiff‟s appeal,

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alone, cannot give rise to any claims for relief under section 1983 for violation of due

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process. “[A prison] grievance procedure is a procedural right only, it does not confer any

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substantive right upon the inmates.” Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir.

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1993) (citing Azeez v. DeRobertis, 568 F. Supp. 8, 10 (N.D. Ill. 1982)); see also Ramirez

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v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (no liberty interest in processing of appeals

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because no entitlement to a specific grievance procedure); Massey v. Helman, 259 F.3d

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641, 647 (7th Cir. 2001) (existence of grievance procedure confers no liberty interest on

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prisoner); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). “Hence, it does not give

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rise to a protected liberty interest requiring the procedural protections envisioned by the

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Fourteenth Amendment.” Azeez, 568 F. Supp. at 10. Actions in reviewing a prisoner's

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administrative appeal, without more, are not actionable under section 1983. Buckley,

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997 F.2d at 495.

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E.

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If pursuit of his state law claims for negligence and intentional infliction of

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Inmate Appeal Process

California State Tort Claims

emotional distress, Plaintiff must show compliance with California's Tort Claims Act.
California's Tort Claims Act requires that a tort claim against a public entity or its

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employees be presented to the California Victim Compensation and Government Claims

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Board (“the Board”), formerly known as the State Board of Control, no more than six

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months after the cause of action accrues. Cal. Govt. Code §§ 905.2, 910, 911.2, 945.4,

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950–950.2 (West 2009). Presentation of a written claim and action on or rejection of the

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claim are conditions precedent to suit. State v. Super. Ct. of Kings Cty. (Bodde), 90 P.3d

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116, 124 (2004); Mangold v. California Pub. Utils. Comm'n, 67 F.3d 1470, 1477 (9th Cir.

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1995). To state a tort claim against a public employee, a plaintiff must allege compliance

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with the Tort Claims Act. State v. Super. Ct., 90 P.3d at 124; Mangold, 67 F.3d at 1477;

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Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 627 (9th Cir. 1988). An action
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must be commenced within six months after the claim is acted upon or is deemed to be

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rejected. Cal. Govt. Code § 945.6; Moore v. Twomey, 16 Cal. Rptr. 3d 163 (Cal. Ct. App.

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2004).

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Plaintiff‟s pleading does not allege compliance with California‟s Tort Claims Act.

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Accordingly, his negligence and intentional infliction of emotional distress claims must be

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dismissed. Leave to amend will however be granted should Plaintiff be able to properly

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allege compliance.

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V.

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Plaintiff‟s Complaint alleges a cognizable Eighth Amendment failure to protect

Conclusion

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claim against CO Casas, CO Carillo, CO Ramirez, and CO Wilson. All other claims and

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Defendants must be dismissed.

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The Court will grant Plaintiff an opportunity to file an amended complaint to cure

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noted defects. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). If Plaintiff opts to

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amend, he must demonstrate that the alleged acts resulted in a deprivation of his

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constitutional rights. Iqbal, 556 U.S. at 677-78. Plaintiff must set forth “sufficient factual

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matter . . . to „state a claim that is plausible on its face.‟” Id. at 678 (quoting Twombly,

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550 U.S. at 555 (2007)). Plaintiff should note that although he has been given the

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opportunity to amend, it is not for the purposes of adding new claims. George v. Smith,

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507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints). Plaintiff should carefully

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read this screening order and focus his efforts on curing the deficiencies set forth above.

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If Plaintiff does not wish to file an amended complaint and he is agreeable to

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proceeding only on the claim found to be cognizable, he may file a notice informing the

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Court that he does not intend to amend and he is willing to proceed only on his

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cognizable claims. The other Defendants and claims will then be dismissed, and the

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Court will provide Plaintiff with the requisite forms to complete and return so that service

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of process may be initiated.

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If Plaintiff files an amended complaint, it should be brief, Fed. R. Civ. P. 8(a), but it
must state what each named defendant did that led to the deprivation of Plaintiff‟s
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constitutional rights, Iqbal, 556 U.S. at 676-677. Although accepted as true, the “[f]actual

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allegations must be [sufficient] to raise a right to relief above the speculative level. . . .”

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Twombly, 550 U.S. at 555 (citations omitted).

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Finally, an amended complaint supersedes the prior complaint, see Loux v. Rhay,

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375 F.2d 55, 57 (9th Cir. 1967), and it must be “complete in itself without reference to the

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prior or superseded pleading,” Local Rule 220.

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Based on the foregoing, it is HEREBY ORDERED that:

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1. The Clerk‟s Office shall send Plaintiff a blank civil rights complaint form;

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2. Within thirty (30) days from the date of service of this order, Plaintiff must

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either:
a. File an amended complaint curing the deficiencies identified by the

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Court in this order, or

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b. Notify the Court in writing that he does not wish to file an amended

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complaint and he is willing to proceed only on the claims found to be

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cognizable in this order; and

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3. If Plaintiff fails to comply with this order, this action will be dismissed,

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without prejudice, for failure to obey a court order.
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IT IS SO ORDERED.
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Dated:

October 14, 2017

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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