Henry v. Vanni et al

Filing 18

ORDER to SHOW CAUSE signed by Magistrate Judge Craig M. Kellison on 05/14/15 ordering plaintiff shall show cause in writing within 30 days of the date of this order, why this action should not be dismissed for failure to state a claim. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KENNETH R. HENRY,

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No. 2:12-cv-2828-CMK-P

Plaintiff,
vs.

ORDER

PETER VANNI, et al.
Defendants.
/
Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42

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U.S.C. § 1983. Plaintiff has consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. §

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636(c) and no other party has been served or appeared in the action. Pending before the court is

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plaintiff’s amended complaint (Doc. 16).

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The court is required to screen complaints brought by prisoners seeking relief

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against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.

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§ 1915A(a). The court must dismiss a complaint or portion thereof if it: (1) is frivolous or

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malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief

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from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover,

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the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain

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statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

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This means that claims must be stated simply, concisely, and directly. See McHenry v. Renne,

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84 F.3d 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied
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if the complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon

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which it rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must

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allege with at least some degree of particularity overt acts by specific defendants which support

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the claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is

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impossible for the court to conduct the screening required by law when the allegations are vague

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and conclusory.

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I. PLAINTIFF’S ALLEGATIONS
Plaintiff’s statement of his claim, as set forth in his amended complaint, consists
of the following paragraph:
Peter Vanni - warden, L. Olivas - Fac. Captain, Lt. Cherry, E.
Califf - Sgt., E. Rodriguez - Sgt. Each defendants allowed plaintiff
dangerous cell moves that could have lead to a highly dangerous
cell fight or murder! Each defendant approved the highly
dangerous cell moves between Jan. 1, 2012 to March 19, 2012. It
was through the grace of God and Jesus Christ that am alive today.
(Am. Comp., Doc. 16 at 3, 6).
II. DISCUSSION

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As the court set forth in the prior order:

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The treatment a prisoner receives in prison and the
conditions under which the prisoner is confined are subject to
scrutiny under the Eighth Amendment, which prohibits cruel and
unusual punishment. See Helling v. McKinney, 509 U.S. 25, 31
(1993); Farmer v. Brennan, 511 U.S. 825, 832 (1994). The Eighth
Amendment “. . . embodies broad and idealistic concepts of
dignity, civilized standards, humanity, and decency.” Estelle v.
Gamble, 429 U.S. 97, 102 (1976). Conditions of confinement
may, however, be harsh and restrictive. See Rhodes v. Chapman,
452 U.S. 337, 347 (1981). Nonetheless, prison officials must
provide prisoners with “food, clothing, shelter, sanitation, medical
care, and personal safety.” Toussaint v. McCarthy, 801 F.2d 1080,
1107 (9th Cir. 1986). A prison official violates the Eighth
Amendment only when two requirements are met: (1) objectively,
the official’s act or omission must be so serious such that it results
in the denial of the minimal civilized measure of life’s necessities;
and (2) subjectively, the prison official must have acted
unnecessarily and wantonly for the purpose of inflicting harm. See
Farmer, 511 U.S. at 834. Thus, to violate the Eighth Amendment,
a prison official must have a “sufficiently culpable mind.” See id.
When prison officials stand accused of using excessive

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force, the core judicial inquiry is “. . . whether force was applied in
a good-faith effort to maintain or restore discipline, or maliciously
and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1,
6-7 (1992); Whitley v. Albers, 475 U.S. 312, 320-21 (1986). The
“malicious and sadistic” standard, as opposed to the “deliberate
indifference” standard applicable to most Eighth Amendment
claims, is applied to excessive force claims because prison officials
generally do not have time to reflect on their actions in the face of
risk of injury to inmates or prison employees. See Whitley, 475
U.S. at 320-21. In determining whether force was excessive, the
court considers the following factors: (1) the need for application
of force; (2) the extent of injuries; (3) the relationship between the
need for force and the amount of force used; (4) the nature of the
threat reasonably perceived by prison officers; and (5) efforts made
to temper the severity of a forceful response. See Hudson, 503
U.S. at 7. The absence of an emergency situation is probative of
whether force was applied maliciously or sadistically. See Jordan
v. Gardner, 986 F.2d 1521, 1528 (9th Cir. 1993) (en banc). The
lack of injuries is also probative. See Hudson, 503 U.S. at 7-9.
Finally, because the use of force relates to the prison’s legitimate
penological interest in maintaining security and order, the court
must be deferential to the conduct of prison officials. See Whitley,
475 U.S. at 321-22.

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Under the principles outlined above, prison officials have a
duty to take reasonable steps to protect inmates from physical
abuse. See Hoptowit v. Ray, 682 F.2d 1237, 1250-51 (9th Cir.
1982); Farmer, 511 U.S. at 833. Liability exists only when two
requirements are met: (1) objectively, the prisoner was
incarcerated under conditions presenting a substantial risk of
serious harm; and (2) subjectively, prison officials knew of and
disregarded the risk. See Farmer, 511 U.S. at 837. The very
obviousness of the risk may suffice to establish the knowledge
element. See Wallis v. Baldwin, 70 F.3d 1074, 1077 (9th Cir.
1995). Prison officials are not liable, however, if evidence is
presented that they lacked knowledge of a safety risk. See Farmer,
511 U.S. at 844. The knowledge element does not require that the
plaintiff prove that prison officials know for a certainty that the
inmate’s safety is in danger, but it requires proof of more than a
mere suspicion of danger. See Berg v. Kincheloe, 794 F.2d 457,
459 (9th Cir. 1986). Finally, the plaintiff must show that prison
officials disregarded a risk. Thus, where prison officials actually
knew of a substantial risk, they are not liable if they took
reasonable steps to respond to the risk, even if harm ultimately was
not averted. See Farmer, 511 U.S. at 844.
(Order, Doc. 11, at 2-4).
Plaintiff continues to allege a fear of being placed with a dangerous cellmate, and
a lack of concern from the prison officials that he may be placed in danger. However, as
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discussed in the court’s prior order, his allegations remain inadequate as he fails to allege that he

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was subjected to any real risk of substantial harm and that the defendants placed him in such a

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situation knowing he was likely to be harmed. Some remote possibility that he might face danger

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from a new cellmate is insufficient to state a claim for violation of his Eighth Amendment rights.

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There is no allegation that the defendants placed him in a cell with a known enemy, or with

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another inmate they knew would attack him, or that any of the cellmates he was placed with

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posed an actual threat. Thus, his complaint remains inadequate to state a claim.

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Plaintiff was informed as to the defects in his complaint, and he was provided an

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opportunity to amend his complaint in order to cure the defects and state a claim. Based on the

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allegations in his amended complaint, which contain the same defects as in the original, it

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appears he is either unable or unwilling to do so. Thus, it does not appear that further leave to

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amend will cure the defects in the complaint.

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III. CONCLUSION
Because it does not appear possible that the deficiencies identified herein can be

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cured by amending the complaint, plaintiff is not entitled to further leave to amend prior to

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dismissal of the entire action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000)

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(en banc). Plaintiff shall show cause in writing, within 30 days of the date of this order, why this

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action should not be dismissed for failure to state a claim. Plaintiff is warned that failure to

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respond to this order may result in dismissal of the action for the reasons outlined above, as well

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as for failure to prosecute and comply with court rules and orders. See Local Rule 110.

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IT IS SO ORDERED.

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DATED: May 14, 2015
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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