Goods v. Virga et al

Filing 15

ORDER signed by Magistrate Judge Dennis M. Cota on 9/9/2019 DISMISSING 14 First Amended Prisoner Civil Rights Complaint with leave to amend. Plaintiff shall file a second amended complaint within 30 days of the date of service of this order. (Huang, H)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GREGORY GOODS,

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No. 2:17-CV-0660-JAM-DMC-P

Plaintiff,
v.

ORDER

TIM V. VIRGA, et al.,
Defendants.

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to

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42 U.S.C. § 1983. Pending before the Court is Plaintiff’s first amended complaint (ECF No. 14).

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Plaintiff alleges that Defendants are failing to keep him safe by continually placing him in a

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double cell with individuals who threaten his safety, violating his Eighth Amendment rights

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against cruel and unusual punishment.

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I. SCREENING REQUIREMENT AND STANDARD

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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).
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The Federal Rules of Civil Procedure require complaints contain a “…short and

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plain statement of the claim showing that the pleader is entitled to relief.” See McHenry v.

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Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (quoting Fed. R. Civ. P. 8(a)(1)). Detailed factual

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allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action,

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supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678

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(2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s

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allegations are taken as true, courts “are not required to indulge unwarranted inferences.” Doe I v.

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Wal–Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation

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omitted).

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Prisoners proceeding pro se in civil rights actions are entitled to have their

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pleadings liberally construed and are afforded the benefit of any doubt. Hebbe v. Pliler, 627 F.3d

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338, 342 (9th Cir. 2010) (citations omitted). To survive screening, Plaintiff’s claims must be

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facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer

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that each named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at 678 (quotation

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marks omitted); Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The

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sheer possibility that a defendant acted unlawfully is not sufficient, and mere consistency with

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liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678 (quotation marks

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omitted); Moss, 572F.3d at 969.

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II. PLAINTIFF’S ALLEGATIONS

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Plaintiff names 19 named Defendants and 4 Doe Defendants. Plaintiff alleges

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each Defendant violated his eighth amendment right to safety by continually housing him in

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double cell housing units. Plaintiff contends that his “case factors” make him a target for physical

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altercations and threats to his safety and to his life. Plaintiff alleges that each named Defendant

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knew, should have known, or was involved in, Plaintiff’s continual housing with cellmates who

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posed a significant threat of harm to him. Plaintiff does not raise any allegations against

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Defendants D.R. Evans, R. Raetz, Porter, A. Konrad, or Does 1-4.

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III. ANALYSIS
The treatment a prisoner receives in prison and the conditions under which the

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prisoner is confined are subject to scrutiny under the Eighth Amendment, which prohibits cruel

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and unusual punishment. See Helling v. McKinney, 509 U.S. 25, 31 (1993); Farmer v. Brennan,

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511 U.S. 825, 832 (1994). The Eighth Amendment “. . . embodies broad and idealistic concepts

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of dignity, civilized standards, humanity, and decency.” Estelle v. Gamble, 429 U.S. 97, 102

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(1976). Conditions of confinement may, however, be harsh and restrictive. See Rhodes v.

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Chapman, 452 U.S. 337, 347 (1981). Nonetheless, prison officials must provide prisoners with

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“food, clothing, shelter, sanitation, medical care, and personal safety.” Toussaint v. McCarthy,

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801 F.2d 1080, 1107 (9th Cir. 1986). A prison official violates the Eighth Amendment only when

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two requirements are met: (1) objectively, the official’s act or omission must be so serious such

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that it results in the denial of the minimal civilized measure of life’s necessities; and (2)

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subjectively, the prison official must have acted unnecessarily and wantonly for the purpose of

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inflicting harm. See Farmer, 511 U.S. at 834. Thus, to violate the Eighth Amendment, a prison

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official must have a “sufficiently culpable 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 serious

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harm; and (2) subjectively, prison officials knew of and disregarded the risk. See Farmer, 511

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

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

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however, if evidence is presented that they lacked knowledge of a safety risk. See Farmer, 511

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

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

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mere suspicion of danger. See Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986). Finally, the

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plaintiff must show that prison officials disregarded a risk. Thus, where prison officials actually

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knew of a substantial risk, they are not liable if they took reasonable steps to respond to the risk,
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even if harm ultimately was not averted. See Farmer, 511 U.S. at 844.
Plaintiff alleges that each named defendant violated his eighth amendment right to

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safety by continually placing him in double cell housing units with incompatible cellmates.

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However, because there are no factual allegations related to Defendants D.R. Evans, R. Raetz,

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Porter, A. Konrad, or Does 1-4, the Eighth Amendment claim cannot proceed against them.

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Further, Plaintiff’s allegations against Tim Virga, D. Deroco, J. Tabayoyonh, T. Hinrichs, Brown,

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Slaighter, J. Prentice, Villasenor, Jochim, Kimzey, David Baughman, Petersen, and Claugh all

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fail to establish an Eight Amendment violation. Though Plaintiff claims these Defendants failed

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to protect him by continually double celling him with incompatible cellmates, there is no

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indication that they did this intentionally. Rather, the complaint indicates that these Defendants

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continually attempted to find Plaintiff a compatible cellmate, removing him from dangerous

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situations, placing him in a segregated unit when necessary, and placing him back in a double cell

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when a new cellmate was identified. The complaint fails to allege any facts that Defendants

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subjectively knew and disregarded a risk to Plaintiff’s safety. Further, Plaintiff has failed to

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establish that either Defendant psychiatrist, D. Sharp or R. Grosse, disregarded any risk to

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Plaintiff’s safety. In fact, the complaint seems to indicate both D. Sharp and R. Grosse advised

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Plaintiff on who to speak with and what to do if he felt his life was in danger.

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For the above stated reasons, Plaintiff has failed to establish an Eighth Amendment

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violation. However, because it may be possible for Plaintiff to cure these defects, he will be

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provided leave to amend.

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IV. AMENDING THE COMPLAINT
Because may be possible that some of the deficiencies identified in this order may

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be cured by amending the complaint, plaintiff is 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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Plaintiff is informed that, as a general rule, an amended complaint supersedes the original

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complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus, following

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dismissal with leave to amend, all claims alleged in the original complaint which are not alleged
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in the amended complaint are waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).

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Therefore, if plaintiff amends the complaint, the court cannot refer to the prior pleading in order

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to make plaintiff's amended complaint complete. See Local Rule 220. An amended complaint

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must be complete in itself without reference to any 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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Finally, plaintiff is warned that failure to file an amended complaint within the

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time provided in this order may be grounds for dismissal of this action. See Ferdik, 963 F.2d at

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1260-61; see also Local Rule 110. Plaintiff is also warned that a complaint which fails to comply

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with Rule 8 may, in the court’s discretion, be dismissed with prejudice pursuant to Rule 41(b).

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See Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981).

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V. CONCLUSION

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Accordingly, IT IS HEREBY ORDERED that:

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Plaintiff’s first amended complaint (ECF No. 14) is dismissed with leave to

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Plaintiff shall file a second amended complaint within 30 days of the date

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amend; and

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of service of this order.
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Dated: September 9, 2019
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DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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