Dotson v. Hilton

Filing 5

ORDER signed by Magistrate Judge Allison Claire on 3/30/2017 ORDERING plaintiff's 2 request to proceed IFP. Plaintiff shall pay the $350.00 filing fee in accordance with the concurrent CDCR order. Plaintiff's complaint is DISMISSED with leave to file an amended complaint within 30 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ERNEST DOTSON,

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No. 2:16-cv-2391 AC P

Plaintiff,
v.

ORDER

J. HILTON,

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Defendant.

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Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C.

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§ 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.

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Plaintiff has consented to the jurisdiction of the undersigned magistrate judge for all purposes

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pursuant to 28 U.S.C. § 636(c) and Local Rule 305(a). ECF No. 4.

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I.

Request to Proceed In Forma Pauperis

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Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. §

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1915(a). ECF No. 2. Accordingly, the request to proceed in forma pauperis will be granted.

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Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§

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1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in

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accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct

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the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and

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forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments
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of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account.

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These payments will be forwarded by the appropriate agency to the Clerk of the Court each time

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the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. §

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1915(b)(2).

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II.

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Screening Requirement

The court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).

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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th

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Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

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490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

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pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

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Cir. 1989); Franklin, 745 F.2d at 1227.

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A complaint, or portion thereof, should only be dismissed for failure to state a claim upon

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which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in

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support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding, 467

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U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt

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Lake Log Owners Ass’n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under

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this standard, the court must accept as true the allegations of the complaint in question, Hosp.

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Bldg. Co. v. Trs. of Rex Hosp., 425 U.S. 738, 740 (1976), construe the pleading in the light most

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favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor, Jenkins v. McKeithen, 395

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U.S. 411, 421 (1969).

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III.

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In the complaint, plaintiff alleges that he was stabbed in a prison yard “race riot” at

Plaintiff’s Allegations

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California State Prison-Solano1 and sustained several injuries, including a collapsed lung. ECF

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No. 1 at 5-6. Plaintiff asserts that “[i]t is customary for Solano correctional officers to observe a

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disturbance and respond after the disturbance has become an incident.” Id. at 4. With the respect

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to the incident at issue here, plaintiff alleges that defendants observed “Hispanic and black

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inmates pushing and shoving on the football field, but failed to prevent further disturbance.” Id.

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at 5. Plaintiff alleges that defendant Hilton “observed a mass of inmates moving from the

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baseball diamond, out of his sight, to the front of building (4) then, a racial riot broke out and

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several inmates attempted to murder [plaintiff].” Id. Plaintiff further claims that defendant

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Hilton admitted to plaintiff that he had observed “the pushing and shoving on the football field”

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and asked plaintiff whether he was a part of it. Id. Plaintiff argues that defendants failed to

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protect him “when they could have prevented the race riot before it happened.” Id. at 6. Plaintiff

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alleges that “[h]ad they called a code when the pushing and shoving happened, [he] never would

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have been stabbed.” Id.

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Plaintiff seeks monetary damages under 42 U.S.C. § 1983 against defendants for failing to
prevent the riot that resulted in the stabbing of plaintiff. Id. at 6.

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Under the “Parties” section of the complaint, plaintiff identifies only correctional officer

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Hilton as a defendant. Id. at 2. The body of the complaint, however, also refers generally to

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“defendants” and correctional “officers.”

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IV.

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The complaint identifies only one claim: “Depravation of equal protection of the law.” Id.

Equal Protection

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at 4. The Fourteenth Amendment’s Equal Protection Clause “is essentially a direction that all

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persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., Inc.,

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473 U.S. 432, 439 (1985); see also Hartmann v. California Dep’t of Corr. & Rehab., 707 F.3d

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1114, 1123 (9th Cir. 2013). To bring a successful equal protection claim, a plaintiff must show

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differential treatment from a similarly situated class. See Washington v. Davis, 426 U.S. 229,

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239 (1976). For this differential treatment to give rise to a claim under 42 U.S.C. § 1983, “one

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The California Department of Corrections online inmate locator service shows plaintiff is
currently incarcerated at California State Prison-Sacramento.
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must show intentional or purposeful discrimination.” Draper v. Rhay, 315 F.2d 193, 198 (9th Cir.

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1963) (inmate failed to show § 1983 violation in absence of “intentional or purposeful

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discrimination”). The complaint is devoid of any allegations required for an equal protection

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claim. Therefore, plaintiff has failed to state a cognizable equal protection claim.

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V.

Eighth Amendment-Failure to Protect

Based on the allegations in the complaint, it appears that plaintiff is attempting to assert a

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claim for failure to protect. Under the Eighth Amendment, “prison officials have a duty . . . to

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protect prisoners from violence at the hands of other prisoners.” Farmer v. Brennan, 511 U.S.

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825, 833 (1994) (quoting CortesQuinones v. Jimenez–Nettleship, 842 F.2d 556, 558 (1st Cir.

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1988)). To establish a violation of this duty, a prisoner must demonstrate that prison officials

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were “deliberately indifferent to a serious threat to the inmate’s safety.” Farmer, 511 U.S. at 834.

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This requires the prisoner to satisfy both an objective and a subjective component. First, the

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alleged facts must demonstrate that the alleged deprivation was, in objective terms, “sufficiently

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serious.” Id. at 834 (quoting Wilson v. Seitner, 501 U.S. 294, 298 (1991)). Second, the alleged

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facts must demonstrate that prison officials acted with a sufficiently culpable state of mind.

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Prison officials must have known of and disregarded an excessive risk to the prisoner’s safety.

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Id. at 837. Thus, “the official must both be aware of facts from which the inference could be

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drawn that a substantial risk of serious harm exists, and he must also draw that inference.” Id.

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However, a prison official who knows of a substantial risk to an inmate’s health or safety but acts

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reasonably under the circumstances will not be held liable under the cruel and unusual

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punishment clause, even if the threatened harm results. Id. at 843.

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In his complaint, plaintiff suggests that defendants knew that a riot was about to erupt, but

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failed to prevent it. Plaintiff claims that if defendants had “called a code when the pushing and

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shoving happened,” plaintiff would not have been stabbed. ECF No. 1 at 6. These allegations

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fail to raise any putative failure to protect claim above the speculative level. Moreover, to

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warrant relief under § 1983, plaintiff must affirmatively link these actions to specific defendants.

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See Rizzo v. Goode, 423 U.S. 362, 370-71 (1976). Although plaintiff identifies correctional

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officer Hilton as a defendant, he fails to identify any other prison officials by name. It is
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insufficient for plaintiff to simply allege that prison officials, in general, were somehow complicit

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in the riot that resulted in the stabbing of plaintiff. In addition, plaintiff has not alleged that

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prison officials were deliberately indifferent to a serious threat to plaintiff’s safety. Plaintiff fails

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to set forth any factual allegations raising a plausible inference that, prior to the riot, any

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defendant was subjectively aware of any substantial risk of harm to plaintiff, or that any official

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failed to take any action that could have prevented the resulting harm. Accordingly, plaintiff

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vague allegations fail to state a cognizable failure to protect claim.

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VI.

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The court will provide plaintiff an opportunity to amend the complaint. If plaintiff

Leave to Amend

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chooses to amend the complaint, plaintiff must demonstrate how the conditions complained of

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have resulted in a deprivation of plaintiff’s constitutional rights. See Ellis v. Cassidy, 625 F.2d

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227 (9th Cir. 1980). Also, the complaint must allege in specific terms how each named defendant

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is involved. There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative

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link or connection between a defendant’s actions and the claimed deprivation. Rizzo, 423 U.S. at

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370-71; May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740,

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743 (9th Cir. 1978). Furthermore, vague and conclusory allegations of official participation in

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civil rights violations are not sufficient. Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir.

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1982).

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In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to

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make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended

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complaint be complete in itself without reference to any prior pleading. This is because, as a

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general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375

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F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no

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longer serves any function in the case. Therefore, in an amended complaint, as in an original

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complaint, each claim and the involvement of each defendant must be sufficiently alleged.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is granted.

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2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff
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is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. §

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1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the

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Director of the California Department of Corrections and Rehabilitation filed concurrently

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herewith.

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3. Plaintiff’s complaint (ECF No. 1) is dismissed.

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4. Plaintiff is granted thirty days from the date of service of this order to file an amended

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complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil

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Procedure, and the Local Rules of Practice; the amended complaint must bear the docket number

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assigned this case and must be labeled “Amended Complaint”; plaintiff must file an original and

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two copies of the amended complaint; failure to file an amended complaint in accordance with

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this order will result in a recommendation that this action be dismissed.

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DATED: March 30, 2017

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