Patrick v. Hitchcock, et al.

Filing 10

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 2/14/2018 RECOMMENDING that 1 Complaint be dismissed without leave to amend and 7 Motion for Injunctive Relief be denied. Referred to Judge Troy L. Nunley. Objections due within 14 days after being served with these findings and recommendations. (Fabillaran, J)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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NICHOLAS PATRICK,

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Plaintiff,

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No. 2:17-CV-1045-TLN-CMK-P

vs.

FINDINGS AND RECOMMENDATIONS

HITCHCOCK, 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 are: (1) plaintiff’s complaint (Doc. 1); and (2)

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plaintiff’s motion for injunctive relief (Doc. 7).

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I. PLAINTIFF’S ALLEGATIONS
Plaintiff names the following as defendants: Hitchcock, Hathaway, McIntyre,

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Kingsley, Lee, and Boxall. Plaintiff states that, on January 13, 2017, he was transferred to High

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Desert State Prison as “a non-adverse A-1-A inmate” due to his involvement in misconduct

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complaints against staff at another institution. Plaintiff was informed of his housing assignment

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on January 12, 2017, by defendant Hitchcock. Next, plaintiff states that defendant Lee witnessed

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him be sexually assaulted by another correctional officer on or about January 13, 2017.

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According to plaintiff, defendant Lee denies seeing any sexual assault on plaintiff.

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Plaintiff next claims that he was hit in the back of the head by another inmate
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while watching television in the dayroom. Plaintiff does not specify when this allegedly

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occurred. Plaintiff states that he was attacked again by another inmate later the same day though,

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again, he does not specify the date. According to plaintiff, this time “defended himself.”

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Defendant Kingsley ordered inmates to get down and plaintiff complied. Defendant Kingsley

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wrote plaintiff a rules violation report for fighting. Plaintiff was then re-housed in a different

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unit by defendant Hathaway. According to plaintiff, he was “forced to sign a compatibility

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chrono” by defendant Hathaway.

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Plaintiff alleges that, prior to first being hit in the head in the dayroom, he had an
interview with defendant Boxall who inquired as to plaintiff’s current work assignment. Plaintiff

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states that he “believes Lt. Lee ordered CCI Boxall (bullied) to alert the two shot callers to hit

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Plaintiff and force him to lock up off the yard.”

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II. DISCUSSION
A.

Complaint
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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Plaintiff characterizes his claim as one based on an alleged failure to protect. The

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treatment a prisoner receives in prison and the conditions under which the prisoner is confined

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are subject to scrutiny under the Eighth Amendment, which prohibits cruel and unusual

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punishment. See Helling v. McKinney, 509 U.S. 25, 31 (1993); Farmer v. Brennan, 511 U.S.

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

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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

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

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such 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

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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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In this case, plaintiff has not alleged facts sufficient to show that, objectively, he

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was incarcerated under conditions presenting a substantial safety risk. To the contrary, plaintiff

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describes rather ordinary housing conditions, none of which posed any particular risk of harm

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beyond the typical risks associated with incarceration. Furthermore, plaintiff fails to allege any

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facts to suggest that any defendant knew of or should have known of a safety risk, or that any

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defendant knew of a risk and disregarded it.

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As to defendants Lee and Boxall, plaintiff states that he “believes Lt. Lee ordered

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CCI Boxall (bullied) to alert the two shot callers to hit Plaintiff and force him to lock up off the

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yard.” Plaintiff cites no facts to support his “belief.” As indicated above, a mere suspicion is

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insufficient to sustain an Eighth Amendment safety claim.

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B.

Motion for Injunctive Relief
The legal principles applicable to requests for injunctive relief, such as a

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temporary restraining order or preliminary injunction, are well established. To prevail, the

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moving party must show that irreparable injury is likely in the absence of an injunction. See

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Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (citing Winter v. Natural Res.

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Def. Council, Inc., 129 S.Ct. 365 (2008)). To the extent prior Ninth Circuit cases suggest a lesser

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standard by focusing solely on the possibility of irreparable harm, such cases are “no longer

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controlling, or even viable.” Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046,

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1052 (9th Cir. 2009). Under Winter, the proper test requires a party to demonstrate: (1) he is

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likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of an
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injunction; (3) the balance of hardships tips in his favor; and (4) an injunction is in the public

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interest. See Stormans, 586 F.3d at 1127 (citing Winter, 129 S.Ct. at 374).

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In this case, plaintiff seeks an order “to prevent the defendants from continuing

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misconduct concerning Plaintiff’s CDCR 602 appeals.” The court finds that injunctive relief is

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not appropriate because plaintiff cannot show irreparable harm resulting from alleged misconduct

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in processing plaintiff’s inmate grievances.

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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:

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1.

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Plaintiff’s complaint (Doc. 1) be dismissed without leave to amend for

failure to state a claim; and

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2.

Plaintiff’s motion for injunctive relief (Doc. 7) be denied.

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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: February 14, 2018
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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