Sekona v. Custino, et al.

Filing 30

ORDER signed by Magistrate Judge Craig M. Kellison on 2/3/2017 DENYING plaintiff's 11 motion for an order directing the USM to effect service of proces is DENIED; and plaintiff may file a first amended complaint within 30 days. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ETUATE SEKONA,

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No. 2:16-CV-0517-CMK-P

Plaintiff,
vs.

ORDER

F. CUSTINO, et al.,
Defendants.
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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 names the following as defendants: (1) Custino; (2) Angle; (3) Charon;

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and (4) Snow. Plaintiff alleges that defendant Custino was the floor officer on June 27, 2014.

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According to plaintiff, Custino ordered plaintiff to move to cell 142, but plaintiff complained that

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cell 142 was unsafe. Plaintiff alleges that he told Custino that cell 142 “is so dangerous for his

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life and safety.” While plaintiff adds that the “move was a setup by the gang members,” plaintiff

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does not further explain this allegation or if Custino was involved with the “setup.” Plaintiff

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further alleges that the “porter” was responsible for having him moved to cell 142 “with my

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enemy ‘skinhead,’” apparently in retaliation for plaintiff having reported some kind of drug deal

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a week earlier.

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Plaintiff next states that Custino and another officer went to cell 142 to talk with

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the inmate currently housed in that cell – inmate Loveday. According to plaintiff, inmate

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Loveday warned Custino not to house plaintiff with him, that they would not get along, and that

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Loveday would harm plaintiff. Plaintiff claims that, despite this warning from inmate Loveday,

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Custino ordered plaintiff to move to cell 142. Plaintiff alleges that, later that day, he fell asleep

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in his new cell while inmate Loveday was outside on the yard. According to plaintiff, when

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inmate Loveday returned to their shared cell, Loveday attacked plaintiff. Plaintiff states that this

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attack resulted in severe injuries.
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As to defendant Angle, while plaintiff references the cell move and assault of June
27, 2014, plaintiff does not explain how defendant Angle was involved.

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Plaintiff alleges that defendant Snow was an investigative officer assigned

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following the assault. According to plaintiff, defendant Snow refused to allow plaintiff to call

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any witnesses at a disciplinary hearing.

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Finally, plaintiff alleges that defendant Charon was the senior hearing officer at a

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disciplinary hearing held on July 20, 2014, at which plaintiff was found guilty of fighting.

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Plaintiff states that he was not provided counsel or staff assistance.

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II. DISCUSSION

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The court finds that plaintiff states a cognizable Eighth Amendment safety claim

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for relief as against defendant Custino. Plaintiff also states a cognizable due process claim as

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against defendant Snow. Plaintiff has not, however, stated a claim against defendants Charon or

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Angle.

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As to defendant Angle, plaintiff has not alleged how this defendant was involved

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with the cell move. To state a claim under 42 U.S.C. § 1983, the plaintiff must allege an actual

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connection or link between the actions of the named defendants and the alleged deprivations.

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See Monell v. Dep’t of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362

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(1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the

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meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts, or

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omits to perform an act which he is legally required to do that causes the deprivation of which

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complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Vague and

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conclusory allegations concerning the involvement of official personnel in civil rights violations

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are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Rather, the

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plaintiff must set forth specific facts as to each individual defendant’s causal role in the alleged

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constitutional deprivation. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). Plaintiff will
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be provided an opportunity to amend the complaint.

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As to defendants Charon, plaintiff has not alleged facts sufficient to establish a

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constitutional violation. With respect to prison disciplinary proceedings, due process requires

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prison officials to provide the inmate with: (1) a written statement at least 24 hours before the

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disciplinary hearing that includes the charges, a description of the evidence against the inmate,

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and an explanation for the disciplinary action taken; (2) an opportunity to present documentary

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evidence and call witnesses, unless calling witnesses would interfere with institutional security;

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and (3) legal assistance where the charges are complex or the inmate is illiterate. See Wolff, 418

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U.S. at 563-70. Due process is satisfied where these minimum requirements have been met, see

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Walker v. Sumner, 14 F.3d 1415, 1420 (9th Cir. 1994), and where there is “some evidence” in

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the record as a whole which supports the decision of the hearing officer, see Superintendent v.

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Hill, 472 U.S. 445, 455 (1985). The “some evidence” standard is not particularly stringent and is

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satisfied where “there is any evidence in the record that could support the conclusion reached.”

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Id. at 455-56. However, a due process claim challenging the loss of good-time credits as a result

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of an adverse prison disciplinary finding is not cognizable under § 1983 and must be raised by

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way of habeas corpus. See Blueford v. Prunty, 108 F.3d 251, 255 (9th Cir. 1997).

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Here, plaintiff alleges that defendant Charon refused to provide staff assistance or

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counsel. Plaintiff has not, however, alleged that he is illiterate or the charges against him were

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complex. It does not appear that these defects can be cured through amendment.

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III. CONCLUSION
Because it is possible that the deficiencies identified in this order as to defendant

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Angle may be cured by amending the complaint, plaintiff is entitled to leave to amend. See

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Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff is informed that,

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as a general rule, an amended complaint supersedes the original complaint. See Ferdik v.

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Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Therefore, if plaintiff amends the complaint, the
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court cannot refer to the prior pleading in order to make plaintiff's amended complaint complete.

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See Local Rule 220. An amended complaint must be complete in itself without reference to any

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prior pleading. See id.

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If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the

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

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

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each named defendant is involved, and must set forth some affirmative link or connection

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between each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d

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164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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Because the complaint appears to otherwise state cognizable claims against

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defendants Custino and Snow, if no amended complaint is filed within the time allowed therefor,

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defendants Angle and Charon will be dismissed, and the court will issue such further orders as

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are necessary for service of process on defendants Custino and Snow.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

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Plaintiff’s motion for an order directing the United States Marshal to effect

service of process (Doc. 11) is denied; and
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Plaintiff may file a first amended complaint within 30 days of the date of

service of this order.

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DATED: February 3, 2017
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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