Olic v. Beard

Filing 9

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 4/27/2017 RECOMMENDING that 1 plaintiff's complaint be dismissed for failure to state a claim and this case be closed. Referred to Judge Kimberly J. Mueller. Objections to F&R due within 14 days after being served with these findings and recommendations. (Henshaw, R)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MILORAD OLIC,

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No. 2:15-cv-1892-KJM-CMK

Plaintiff,
vs.

FINDINGS AND RECOMMENDATION

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CDCR DIRECTOR JEFFREY BEARD,

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Defendant.

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42
U.S.C. § 1983. Pending before the court is plaintiff’s complaint (Doc. 1).
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

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Plaintiff’s Statement of Claim in its entirety states as follows:

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On September 3rd, 2015 at 2:00 p.m. I was told to leave to R&R. I
haven’t been notified of any transfer, I was not told to transpack, I
was not given any plastic bags to put my property in it. I was told
that transfer order came directly from Sacramento indicating that
CDRC Director Jeffery Beard himself issued this order since only
he can issue order to wardens of California prisons. I was then told
that I’m going to High Desert Prison where officer Albert Payne
tried to kill me on May 5th, 2015. I was the only prisoner
scheduled to be transferred. I have court deadline of 9/15/15 for
case 2:14-cv-2120-KJM-GGH pending in this court and I need to
stay here to submit my documents.

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The only relief Plaintiff is requesting is: “I need to stop transfer immediately to

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prevent me from getting murdered by CDCR. I’m seeking injunctive order to stop this.”
II. DISCUSSION
Prisoners have no liberty interest in avoiding being transferred to another prison.

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See Olim v. Wakinekona, 461 U.S. 238, 245 (1983); Meachum v. Fano, 427 U.S. 215, 225-27

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(1976); United States v. Brown, 59 F.3d 102, 105 (9th Cir. 1995) (per curiam). Inmates have “no

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justifiable expectation” that they will be incarcerated in any particular prison, and transferring an

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inmate to another prison does not infringe a protected liberty interest. Olim, 461 U.S. at 245;

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Vitek v. Jones, 445 U.S. 480, 489 (1980). To the extent plaintiff is requesting the court to order

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that he remain at a particular prison to facilitate prosecuting a legal action, he has no liberty

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interest and therefore cannot state a claim.

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It is possible plaintiff is attempting to allege a violation of his Eighth Amendment
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rights. To that extent, it is noted that the treatment a prisoner receives in prison and the

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conditions under which the prisoner is confined are subject to scrutiny under the Eighth

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Amendment, which prohibits cruel and unusual punishment. See Helling v. McKinney, 509

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U.S. 25, 31 (1993); Farmer v. Brennan, 511 U.S. 825, 832 (1994). The Eighth Amendment “. . .

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embodies broad and idealistic concepts of dignity, civilized standards, humanity, and decency.”

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Estelle v. Gamble, 429 U.S. 97, 102 (1976). Conditions of confinement may, however, be harsh

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and restrictive. See Rhodes v. Chapman, 452 U.S. 337, 347 (1981). Nonetheless, prison

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officials must provide prisoners with “food, clothing, shelter, sanitation, medical care, and

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personal safety.” Toussaint v. McCarthy, 801 F.2d 1080, 1107 (9th Cir. 1986). A prison official

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violates the Eighth Amendment only when two requirements are met: (1) objectively, the

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official’s act or omission must be so serious such that it results in the denial of the minimal

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civilized measure of life’s necessities; and (2) subjectively, the prison official must have acted

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unnecessarily and wantonly for the purpose of inflicting harm. See Farmer, 511 U.S. at 834.

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Thus, to violate the Eighth Amendment, a prison official must have a “sufficiently culpable

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mind.” See id.

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Under these principles, prison officials have a duty to take reasonable steps to

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protect inmates from physical abuse. See Hoptowit v. Ray, 682 F.2d 1237, 1250-51 (9th Cir.

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1982); Farmer, 511 U.S. at 833. Liability exists only when two requirements are met: (1)

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objectively, the prisoner was incarcerated under conditions presenting a substantial risk of

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serious harm; and (2) subjectively, prison officials knew of and disregarded the risk. See Farmer,

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511 U.S. at 837. The very obviousness of the risk may suffice to establish the knowledge

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element. See Wallis v. Baldwin, 70 F.3d 1074, 1077 (9th Cir. 1995). Prison officials are not

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liable, however, if evidence is presented that they lacked knowledge of a safety risk. See Farmer,

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511 U.S. at 844. The knowledge element does not require that the plaintiff prove that prison

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officials know for a certainty that the inmate’s safety is in danger, but it requires proof of more

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than a mere suspicion of danger. See Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986).
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Finally, the plaintiff must show that prison officials disregarded a risk. Thus, where prison

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officials actually knew of a substantial risk, they are not liable if they took reasonable steps to

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respond to the risk, even if harm ultimately was not averted. See Farmer, 511 U.S. at 844.

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To the extent plaintiff alleges his safety is at risk by a transfer to High Desert State

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Prison, he fails to allege the defendant actually placed him in harms way. There is no indication

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that plaintiff was ever transferred to High Desert State Prison, nor that there was any actual intent

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to do so. Rather is appears that plaintiff’s allegations are based on his own speculation or rumor,

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which are insufficient to state a claim for failure to protect. Nor is there any plausible indication

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that his safety was ever actually in danger.

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III. CONCLUSION

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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 leave to amend prior to dismissal of

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

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Based on the foregoing, the undersigned recommends that plaintiff’s complaint be
dismissed for failure to state a claim and this case be closed.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days

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after being served with these findings and recommendations, any party may file written

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objections with the court. Responses to objections shall be filed within 14 days after service of

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objections. Failure to file objections within the specified time may waive the right to appeal.

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See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: April 27, 2017
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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