Tran v. Turner et al

Filing 18

ORDER signed by Magistrate Judge Deborah Barnes on 3/28/2017 ORDERING the Clerk to send plaintiff a blank civil rights complaint form. Within 30 days, plaintiff must either: (a) File a second amended complaint curing the deficiencies identified in this order, or (b) Notify the court in writing that he does not wish to file a second amended complaint and he is willing to proceed only on the claim found to be cognizable in this order.(Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BINH C. TRAN,

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Plaintiff,

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No. 2:15-cv-0200 DB P

v.

ORDER

FRED FOULK, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis pursuant to 42 U.S.C.

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§ 1983. Plaintiff has consented to the jurisdiction of a magistrate judge. (ECF No. 4.) His first

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amended complaint is before the court for screening.

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I.

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

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

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determines that . . . the action or appeal . . . fails to state a claim upon which relief may be

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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, privileges, or

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immunities secured by the Constitution and laws of the United States.” Wilder v. Virginia Hosp.

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Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of
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substantive rights, but merely provides a method for vindicating federal rights conferred

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elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989).

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To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a

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right secured by the Constitution or laws of the United States was violated and (2) that the alleged

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violation was committed by a person acting under the color of state law. See West v. Atkins, 487

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U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987).

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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)). Plaintiff must set forth “sufficient factual

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matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. Facial

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plausibility demands more than the mere possibility that a defendant committed misconduct and,

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while factual allegations are 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 times relevant to this action, plaintiff was a state prisoner housed at High Desert

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State Prison (“HDSP”) in Susanville, California. He names as defendants HDSP Warden Fred

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Foulk, Correctional Officer (“CO”) Joksch, CO Turner, and Appeals Coordinator L. Lopez.

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Plaintiff’s allegations may be fairly summarized as follows:

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A.

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On January 12, 2013, plaintiff was assigned a cellmate, inmate Brian Yang, who was

Assault by Cellmate

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mentally unstable and on “psych-medication.” Afraid for his safety, plaintiff repeatedly

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complained to COs Turner and Joksch about inmate Wang’s mental instability and plaintiff’s fear

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of attack. CO Turner attempted to move plaintiff, but the transfer did not happen. CO Joksch

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claimed to be too busy to attend to plaintiff’s concerns.

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On March 22, 2013, plaintiff was severely assaulted by his cellmate. As a result of the

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attack, plaintiff suffered a broken jaw and was hospitalized for months. His injuries are

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permanent.
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B.

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On July 21, 2013, plaintiff filed a staff complaint against COs Turner and Joksch

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concerning the March 22, 2013, assault. Plaintiff’s appeal was granted in part at the first level of

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review and no misconduct was found. Many months later, plaintiff attempted to proceed to the

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second level of review, but his appeal was screened out by Appeals Coordinator L. Lopez on

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September 22, 2014, as duplicative of the first staff complaint and as untimely. Plaintiff claims

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the screening out of his appeal was improper because the delay was attributable to his months-

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long hospitalization and his placement in administrative segregation following the March 2013

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assault.

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IV.

Grievance Regarding Assault

Discussion

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A.

Linkage and Supervisory Liability

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

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that each defendant personally participated in the deprivation of his rights. See Jones v. Williams,

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297 F.3d 930, 934 (9th Cir. 2002). There must be an actual connection or link between the actions

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of the defendants and the deprivation alleged to have been suffered by plaintiff. See Monell v.

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Dep’t of Soc. Servs., 436 U.S. 658, 691, 695 (1978).

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Plaintiff names HDSP Warden Fred Foulk as a defendant but asserts no charging

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allegations as to him. Insofar as plaintiff seeks to hold Warden Foulk liable based on the conduct

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his subordinates, this claim fails. Government officials 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 a

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

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plaintiff must plead sufficient facts showing that the official has violated the Constitution through

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his own individual actions by linking each named defendant with some affirmative act or

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omission that demonstrates a violation of plaintiff's federal rights. Iqbal, 556 U.S. at 676.

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

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(1) personally participated in the deprivation of constitutional rights or directed the violations or

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(2) knew of the violations and failed to act to prevent them. Hansen v. Black, 885 F.2d 642, 646

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(9th Cir. 1989); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).
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Sine plaintiff has not alleged any of the above factors, his claim against Warden Foulk

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must be dismissed. Plaintiff was previously informed of the insufficiencies of his claim against

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this defendant. Leave to amend will therefore be denied as to Warden Foulk.

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B.

Eighth Amendment Failure to Protect

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The Eighth Amendment protects prisoners from inhumane methods of punishment and

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from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir.

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2005). Prison officials must take reasonable measures to guarantee the safety of the inmates.

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Farmer v. Brennan, 511 U.S. 825, 832-33 (1994).

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In a “failure-to-protect” Eighth Amendment violation claim, an inmate must show that a

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prison official’s act or omission (1) is objectively, sufficiently serious, and (2) the official is

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deliberately indifferent to inmate’s health or safety. Farmer, 511 U.S. at 834; Hearns v. Terhune,

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413 F.3d 1036, 1042 (9th Cir. 2005). The failure of prison officials to protect inmates from

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attacks by other inmates may rise to the level of an Eighth Amendment violation where prison

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officials know of and disregard a substantial risk of serious harm to the plaintiff. E.g., Farmer,

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522 U.S. at 847; Hearns, 413 F.3d at 1040.

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Plaintiff has adequately alleged a failure to protect claim against CO Joksch. Plaintiff

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alleges that he complained to this defendant about inmate Wang’s mental instability and

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plaintiff’s fear of assault, CO Joksch disregarded plaintiff’s concerns, and plaintiff was severely

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assaulted by inmate Wang.

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Plaintiff’s allegations as to CO Turner, however, are insufficient to proceed to service.

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This is because plaintiff alleges that CO Turner attempted to move plaintiff following the latter’s

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complaints regarding his safety. Although it appears that CO Turner’s efforts were ultimately

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unsuccessful, the facts as alleged do not establish a disregard of a substantial risk of serious harm

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to plaintiff. Plaintiff’s claim against this defendant will therefore be dismissed.

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C.

Processing of Inmate Appeal

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Finally, plaintiff brings a claim against Appeals Coordinator Lopez concerning the

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screening out of plaintiff’s grievance at the second level of review. In the absence of any other

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allegations, this claim must be dismissed because a prison official’s processing of an inmate’s
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appeals, without more, cannot serve as a basis for § 1983 liability. See Ramirez v. Galaza, 334

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F.3d 850, 860 (9th Cir. 2003) (prisoners do not have a “separate constitutional entitlement to a

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specific prison grievance procedure.” (Citation omitted.)); Mann v. Adams, 855 F.2d 639, 640

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(9th Cir. 1988) (due process not violated simply because defendant fails properly to process

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grievances submitted for consideration); see, e.g., Todd v. Calif. Dep’t of Corr. and Rehab., 615

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Fed. Appx. 415, 415 (9th Cir. 2015) (district court properly dismissed claim based on improper

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“processing and handling of [ ] prison grievances,” since prisoners have no “constitutional

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entitlement to a specific prison grievance procedure”) (quoting Ramirez, 334 F.3d at 860).

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If, as it appears, plaintiff is claiming that he did not exhaust his administrative remedies

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and that his failure to do so is attributable to Appeals Coordinator Lopez’s screening of plaintiff’s

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staff complaint, plaintiff is hereby informed that failure to exhaust is an affirmative defense that

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the defendant must plead and prove. Jones v. Bock, 549 U.S. 199, 204 (2007). Once a defendant

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proves that there was an available administrative remedy that the inmate did not exhaust, “the

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burden shifts to the prisoner to come forward with evidence showing that there is something in

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his particular case that made the existing and generally available administrative remedies

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effectively unavailable to him.” Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014).

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V.

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Conclusion
Based on the foregoing, plaintiff has sufficiently alleged a failure to protect claim against

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CO Joksch, but all other claims and defendants must be dismissed. Plaintiff’s claim against

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Warden Foulk is dismissed without leave to amend. Plaintiff may proceed on his first amended

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complaint as screened, or he may file a second amended complaint. Should plaintiff file a second

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amended complaint, it must be a complete document. The court cannot refer to prior documents

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or to subsequently filed supplements to make the complaint complete. See E.D. Cal. R. 220.

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If plaintiff does not wish to file an amended complaint, and he is agreeable to proceeding

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only on the claim found to be cognizable, he may file a notice informing the court that he does

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not intend to amend, and he is willing to proceed only on his cognizable claim. The court will

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then provide plaintiff with the requisite forms to complete and return so that service of process

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may be initiated on defendant CO Joksch.
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If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions

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complained of have resulted in a deprivation of plaintiff’s constitutional rights. See Ellis v.

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Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must also allege in specific terms how

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each named defendant is involved. There can be no liability under 42 U.S.C. § 1983 unless there

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is some affirmative link or connection between a defendant’s actions and the claimed deprivation.

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Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980);

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Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, vague and conclusory

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allegations of official participation in civil rights violations are not sufficient. Ivey v. Board of

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Regents, 673 F.2d 266, 268 (9th Cir. 1982).

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In accordance with the above, 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 this order, plaintiff must either:

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a. File a second amended complaint curing the deficiencies identified in this
order, or

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b. Notify the court in writing that he does not wish to file a second amended

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complaint and he is willing to proceed only on the claim 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, the undersigned may dismiss this action
for failure to obey a court order and failure to prosecute.

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Dated: March 28, 2017

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/DLB7;
Inbox/Substantive/tran0200.scrn.1AC

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