Denton v. Deroco et al

Filing 10

ORDER signed by Magistrate Judge Craig M. Kellison on 3/1/2017 DISMISSING this action for failure to state a claim; and the Clerk shall enter judgment and close this file. CASE CLOSED.(Yin, K)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

BARRY G. DENTON,

12

Plaintiff,

13
14

No. 2:13-CV-2579-CMK-P

vs.

ORDER

D. DEROCO, et al.,

15

Defendants.

16

/

17

Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to

18

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

19

§ 636(c) and no other party has been served or appeared in the action. On January 10, 2017, the

20

court ordered plaintiff to show cause in writing within 30 days why this action should not be

21

dismissed for failure to state a claim. Plaintiff was warned that failure to file a response could

22

result in dismissal of the action, both for the reasons outlined in the order to show cause as well

23

as for failure to comply with court orders. See Local Rule 110. Plaintiff has failed to file a

24

response to the court’s January 10, 2017, order.

25

///

26

///
1

1
2

In the order to show cause, the court summarized plaintiff’s allegations as
follows:

3

Plaintiff names the following as defendants: (1) Deroco; (2)
Henrich; (3) Guzman; (4) Lidge; (5) Sacks; (6) Ahrens; and (7)
McCollough. Plaintiff states that, on December 3, 2012, he refused to
enter his assigned cell during a lockdown of Crip inmates because he is
not a member of that gang. Plaintiff was told that the only way to avoid
the lockdown was to find a cellmate who was a “non-affiliate.” Plaintiff
states that he asked defendant McCollough to help him with the issue and
that defendant McCollough said he would “check the board.” On
December 4, 2012, plaintiff moved into a cell with inmate Pearson.
Plaintiff next states that he had an “altercation” with inmate
Pearson the following day and that he informed defendant McCollough
that he needed a cell move. According to plaintiff, he was told by
defendant McCollough that it was too late in the day for a cell move and
that he had already moved a few days ago. Plaintiff alleges that he was
attacked by inmate Pearson on December 11, 2012. According to plaintiff,
the attack rendered him unconscious. When plaintiff awoke, he was
surrounded by officers asking if he was okay. Plaintiff was immediately
transported to the medical clinic and treated for a cut lip and lumps on his
forehead. Plaintiff was provided pain medicine and an ice pack. As a
victim of an in-cell assault, plaintiff was protectively placed in
administrative segregation.
Plaintiff alleges that, while in administrative segregation,
he overheard inmate Pearson, who had been moved to a cell a few doors
down, say that he had “been warning ‘these fools’” that assigning him
(Pearson) a cellmate would cause problems. According to plaintiff, he
learned from this overheard conversation that inmate Pearson had prior
problems with cellmates. Plaintiff adds that Pearson had been approved
for single-cell status but that approval had been withdrawn by defendant
Deroco to retaliate against Pearson. Plaintiff adds that he overheard
Pearson say that he had been placed back on single-cell status as a result of
the attack on December 11, 2012. According to plaintiff, he confirmed all
this when he had a conversation with inmate Pearson on December 22,
2012.
Next, plaintiff claims that, upon return of his personal
property on January 29, 2013, he discovered that some of inmate Pearson’s
paperwork and other effects had been mistakenly packed with his own.
Among these items was an April 6, 2012, “classification chrono” stating
that Pearson had been having homicidal thoughts at the prospect of being
assigned a cellmate.
Plaintiff alleges that defendants’ conduct endangered his
safety, in violation of the Eighth Amendment.

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24

///

25

///

26

///
2

1

Regarding the legal sufficiency of these allegations, the court stated:

2

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.
Under these principles, 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.
In this case, plaintiff has not stated a claim. Specifically,
plaintiff has not alleged facts to indicate that the named defendants were
aware of any risk of serious harm to plaintiff if he were assigned to the
same cell as inmate Pearson. While plaintiff has alleged that defendant
Deroco withdrew Pearson’s single-cell status chrono in order to retaliate
against Pearson, plaintiff does not allege that Deroco had any reason to
believe that doing to could result in a safety risk. In particular, there is no
indication from the facts alleged that Deroco – or any named defendant for
that matter – knew about the supposed April 6, 2012, classification chrono
stating that Pearson was having homicidal thoughts at the prospect of
being assigned a cellmate.

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

3

1
2

In light of the foregoing, and given plaintiff’s failure to respond to the court’s
order to show cause, the court finds that plaintiff’s complaint fails to state a claim.

3

Accordingly, IT IS HEREBY ORDERED that:

4

1.

This action is dismissed for failure to state a claim; and

5

2.

The Clerk of the Court is directed to enter judgment and close this file.

6
7
8
9

DATED: March 1, 2017
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
4