Hicks v. Lizarrage et al
Filing
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ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 5/1/2018 VACATING 11 Findings and Recommendations and RECOMMENDING this action be dismissed pursuant to 28 U.S.C. § 1915A for failure to state a claim. Referred to Judge John A. Mendez. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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MICHAEL HICKS,
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Plaintiff,
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No. 2:16-cv-0453-JAM-EFB P
v.
ORDER AND FINDINGS AND
RECOMMENDATIONS
J. LIZARRAGA, et al.,
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Defendants.
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Plaintiff is a state prisoner proceeding without counsel and in forma pauperis in an action
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brought under 42 U.S.C. § 1983. After a dismissal pursuant to 28 U.S.C. § 1915A (ECF No. 8),
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he has filed an amended complaint (ECF No. 15) which is before the court for screening.1
Congress mandates that district courts engage in a preliminary screening of cases in which
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prisoners seek redress from a governmental entity or officer or employee of a governmental
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entity. 28 U.S.C. § 1915A(a). The court must identify cognizable claims or dismiss the
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complaint, or any portion of the complaint, if the complaint “is frivolous, malicious, or fails to
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state a claim upon which relief may be granted,” or “seeks monetary relief from a defendant who
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is immune from such relief.” Id. § 1915A(b).
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In light of this filing, the court will vacate the April 3, 2017 recommendation of
dismissal.
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Like the original complaint, the amended complaint concerns plaintiff’s request for an
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“out of level” prison transfer after at least 100 inmates in the administrative segregation unit
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(“ASU”) at Mule Creek State Prison learned that plaintiff was a sex offender. Plaintiff allegedly
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informed Warden Lizarraga that he was experiencing severe emotional distress because of the
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constant threats and harassment by other inmates (including one physical assault, which prompted
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plaintiff’s initial placement in the ASU). Plaintiff claims he told Lizarraga that because so many
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ASU inmates were transferred to Level IV prisons throughout the State, “word would follow” and
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he would not be safe at another Level IV prison. ECF No. 15 at 9. Plaintiff requested a transfer
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to the “DTP Unit” at California State Prison, Sacramento. Lizarraga initially responded by
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retaining plaintiff in the ASU for another 30 days pending a confidential investigation. At the end
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of those thirty days, Lizarraga ordered an expedited transfer of plaintiff to Kern Valley State
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Prison, a Level IV facility, after first confirming that plaintiff had no documented enemies there.
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When plaintiff explained to Lizarraga that he was likely to encounter a “mass of undocumented
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enemies” at Kern, Lizarraga allegedly responded, “You should have thought about that when you
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raped that girl. Man up and deal with it.” ECF No. 15 at 9. In the year that followed, plaintiff
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claims he was repeatedly compelled to seek ASU safety placement at different prisons “due to
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[the] oversaturation of undocumented enemies identifying plaintiff as a sex offender and
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threatening him with bodily harm while in general population and in the ASU.” Id. at 11.
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Plaintiff claims that defendants Elorza and Knight handled the administrative appeal he filed
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regarding these issues.
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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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2006). To show a violation of the Eighth Amendment, plaintiff must allege facts sufficient to
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support a claim that prison officials knew of and disregarded a substantial risk of serious harm.
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E.g., Farmer v. Brennan, 511 U.S. 825, 847 (1994); Frost v. Agnos, 152 F.3d 1124, 1128 (9th
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Cir. 1998). Although Lizarraga’s comment to plaintiff conveyed a certain lack of concern for
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plaintiff’s safety, Lizarraga’s decision to transfer plaintiff to Kern, after first confirming that
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plaintiff had no documented enemies there, was a reasonable response to the known risks of harm
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plaintiff faced in the Mule Creek ASU. See Farmer, 511 U.S. at 844 (“A prison official’s duty
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under the Eighth Amendment is to ensure ‘reasonable safety,’ . . . .”). Plaintiff’s broad fear of
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undocumented enemies throughout the State’s Level IV prisons, including Kern, is not enough to
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demonstrate that his transfer to Kern posed an “identifiable serious risk” of harm to him for
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purposes of the Eighth Amendment. See Davis v. Scott, 94 F.3d 444, 446-47 (9th Cir. 1996)
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(“vague and unsubstantiated” allegation that “friends of [plaintiff’s] departed enemies remained
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[in general population] and might try to harm him if he were released” from protective custody
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established “no solid evidence . . . of an identifiable serious risk to [his] safety” under Farmer);
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Dixon v. Lavin, 234 F. App’x 814, 815 (9th Cir. 2007) (plaintiff’s allegation that “he would be at
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risk when returned to a general population yard if other inmates learned he had been on a Special
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Needs Yard [was] too speculative to support a claim that defendants were deliberately indifferent
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to his safety when they recommended he be placed on the SNY.”). Moreover, “a prisoner does
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not have a constitutional right to be housed at a particular institution, [or] to receive a particular
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security classification.” Neal v. Shimoda, 131 F.3d 818, 828 (9th Cir. 1997) (citations omitted).
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For these reasons, the complaint fails to state a claim for violation of the Eighth Amendment.
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Plaintiff also claims that in addressing plaintiff’s related administrative appeal, Elorza
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stated that she agreed with plaintiff but could not override the Warden’s orders. In addition,
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Knight allegedly failed to properly address plaintiff’s appeal at a higher level of review by stating
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that the appeal raised “new issues.” ECF No. 15 at 10. Plaintiff fails to state a viable claim
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against either defendant, as inmates have no standalone rights with respect to the administrative
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grievance process. Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003); Williams v. Cate, No.
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1:09-cv-00468-0WW-YNP PC, 2009 U.S. Dist. LEXIS 107920, 2009 WL 3789597, at *6 (E.D.
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Cal. Nov. 10, 2009) (“Plaintiff has no protected liberty interest in the vindication of his
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administrative claims.”).
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Despite notice of the complaint’s deficiencies and an opportunity to amend, plaintiff is
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unable to state a cognizable claim for relief and this action should be dismissed without further
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leave to amend. Plumeau v. School Dist. # 40, 130 F.3d 432, 439 (9th Cir. 1997) (denial of leave
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to amend appropriate where further amendment would be futile).
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Accordingly, IT IS HEREBY ORDERED that the April 3, 2017 findings and
recommendations (ECF No. 11) are vacated.
Further, IT IS HEREBY RECOMMENDED that this action be dismissed pursuant to 28
U.S.C. § 1915A for failure to state a claim.
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These findings and recommendations are submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 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 and serve a copy on all parties. Such a document should be captioned
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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections
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within the specified time may waive the right to appeal the District Court’s order. Turner v.
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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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DATED: May 1, 2018.
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