(PC) Hernandez v. California Department of Corrections et al

Filing 6

ORDER signed by Magistrate Judge Deborah Barnes on 9/8/2020 GRANTING plaintiff's 2 motion to proceed ifp; DENYING without prejudice plaintiff's 5 motion to appoint counsel; and DISMISSING plaintiff's complaint with leave to am end. Plaintiff shall pay the $350.00 filing fee in accordance with the concurrent order. Within 60 days, plaintiff shall file an amended complaint in accordance with this order. The Clerk shall send plaintiff a civil rights complaint form. (Yin, K)

Case 2:20-cv-00739-DB Document 6 Filed 09/08/20 Page 1 of 9
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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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PABLO HERNANDEZ,

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No. 2:20-cv-0739 DB P

Plaintiff,
v.

ORDER

CALIFORNIA DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42

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U.S.C. §1983. Plaintiff claims defendant failed to protect him in violation of his Eighth

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Amendment rights. Presently before the court is plaintiff’s motion to proceed in forma pauperis

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(ECF No. 2), motion to appoint counsel (ECF No. 5), and his complaint for screening (ECF No.

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1). For the reasons set forth below, the court will grant the motion to proceed in forma pauperis,

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deny the motion to appoint counsel, and dismiss the complaint with leave to amend.

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IN FORMA PAUPERIS
Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. §
1915(a). (ECF No. 2.) Accordingly, the request to proceed in forma pauperis will be granted.
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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Case 2:20-cv-00739-DB Document 6 Filed 09/08/20 Page 2 of 9
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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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SCREENING
I.

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

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governmental entity or an 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 the prisoner has raised claims

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

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granted, or that seek monetary relief from a defendant who is immune from such relief. See 28

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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 Franklin, 745 F.2d at 1227.

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Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain

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statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the

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defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic

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Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

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However, in order to survive dismissal for failure to state a claim a complaint must

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contain more than “a formulaic recitation of the elements of a cause of action;” it must contain

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factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic,

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550 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the
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allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S.

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738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all

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doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

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The Civil Rights Act under which this action was filed provides as follows:

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Every person who, under color of [state law] . . . subjects, or causes
to be subjected, any citizen of the United States . . . to the deprivation
of any rights, privileges, or immunities secured by the Constitution .
. . shall be liable to the party injured in an action at law, suit in equity,
or other proper proceeding for redress.

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42 U.S.C. § 1983. Here, the defendants must act under color of federal law. Bivens, 403 U.S. at

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389. The statute requires that there be an actual connection or link between the

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actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See

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Monell v. Dept. 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).

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Moreover, supervisory personnel are generally not liable under § 1983 for the actions of

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their employees under a theory of respondeat superior and, therefore, when a named defendant

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holds a supervisorial position, the causal link between him and the claimed constitutional

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violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979);

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Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations

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concerning the involvement of official personnel in civil rights violations are not sufficient. See

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Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

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II.

Allegations in the Complaint
Plaintiff claims the events giving rise to his claim occurred while he was incarcerated at

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California State Prison, Sacramento (CSP-SAC). (ECF No. 1 at 4.) He names the following

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defendants: (1) the California Department of Corrections and Rehabilitation (CDCR); (2) the

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Warden of CSP-SAC; (3) correctional officer Burkhart; (4) correctional officers Childs; and (5)

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the Director of Corrections. (Id. at 2, 4.)
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Plaintiff alleges that officer Burkhart walked him to group and placed ankle restraints on

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him while he was in the hallway. (Id. at 4.) Plaintiff claims that because staff failed to search the

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inmates for weapons and did not supervise the group, another inmate was able to free himself

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from his restraints and stab plaintiff in the neck. Plaintiff further alleges that after he was stabbed

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he yelled help for “at least six to seven minutes” before officers responded. He claims “the

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person who was in charge for having those chairs in that room for groups should [have] known it

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was a problem after having that issue happen before” on a different prison yard. (Id. at 5.)

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III.

Does Plaintiff State a Claim Under § 1983?

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A. Failure to Protect

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The Eighth Amendment requires that prison officials take reasonable measures for the

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safety of prisoners. Farmer v. Brennan, 511 U.S. 825, 832 (1994). In particular, prison officials

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have a duty to protect prisoners from violence at the hands of other prisoners. Id. at 833; Hearns

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v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005); Hoptowit v. Ray, 682 F.2d 1237, 1250 (9th Cir.

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1982). The failure of prison officials to protect inmates from attacks by other inmates may rise to

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the level of an Eighth Amendment violation where prison officials know of and disregard a

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substantial risk of serious harm to the plaintiff. E.g., Farmer, 511 U.S. at 847; Hearns, 413 F.3d

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at 1040.
A failure to protect claim under the Eighth Amendment requires a showing that “the

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official [knew] of and disregard[ed] an excessive risk to inmate . . . safety.” Farmer, 511 U.S. at

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837. “Whether a prison official had the requisite knowledge of a substantial risk is a question of

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fact subject to demonstration in the usual ways, including inference from circumstantial evidence,

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. . . and a factfinder may conclude that a prison official knew of a substantial risk from the very

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fact that a prison official knew of a substantial risk from the very fact that the risk was obvious.”

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Id. at 842 (citations omitted). The duty to protect a prisoner from serious harm requires that

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prison officials take reasonable measures to guarantee the safety and well-being of the prisoner.

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Id. at 832-33; Frost v. Agnos, 152 F.3d 1124, 1128-29 (9th Cir. 1998). Because “only the

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unnecessary and wanton infliction of pain implicates the Eighth Amendment,” plaintiff must

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allege facts showing the defendant acted with a “sufficiently culpable state of mind.” Wilson v.

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Seiter, 501 U.S. 294, 297 (1991) (internal quotation marks, emphasis, and citations omitted).

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Plaintiff has alleged that he was stabbed by another inmate because officers failed to

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search inmates for weapons and did not supervise the group. (ECF No. 1 at 4-5.) Such

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allegations are sufficient to state a claim under the Eighth Amendment. However, the allegations

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in the complaint do not sufficiently specify which defendants are responsible for the alleged

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violations. While plaintiff has stated officer Burkhart placed restraints on his ankles, it is not

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clear from the allegations in the complaint if Burkhart was the officer responsible for restraining

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and searching the inmate who attacked plaintiff. Additionally, plaintiff has named officer Childs

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as a defendant, but there are no factual allegations related to Childs in the complaint. In any

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amended complaint, plaintiff should identify specific defendants and state with specificity what

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actions the identified defendants took, or failed to take, that led to his injury.

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B. Eleventh Amendment Immunity
Plaintiff has identified CDCR as a defendant in this action. However, CDCR is not a

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proper defendant because state agencies are immune from suit under the Eleventh Amendment.

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See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 66 (1989); Lucas v. Dep’t of Corr., 66

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F.3d 245, 248 (9th Cir. 1995) (per curiam) (holding that prisoner’s Eighth Amendment claims

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against CDCR for damages and injunctive relief were barred by Eleventh Amendment immunity);

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Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984) (Eleventh Amendment

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immunity extends to state agencies); see also Hafer v. Melo, 502 U.S. 21, 30 (1991) (clarifying

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that Eleventh Amendment does not bar suits against state officials sued in their individual

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capacities, nor does it bar suits for prospective injunctive relief against state officials sued in their

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official capacities).

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Plaintiff cannot state a claim against CDCR because CDCR is immune from suit. In any
amended complaint, plaintiff should refrain from identifying CDCR as a defendant.
C. Supervisory Defendants

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Plaintiff has named the warden of CSP-SAC and the director of CDCR as defendants in

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this action. However, liability may not be imposed on supervisory personnel for the actions or
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omissions of their subordinates under the theory of respondeat superior. Ashcroft v. Iqbal, 556

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U.S. 662, 676-77 (2009); Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-21 (9th Cir.

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2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones v. Williams, 297

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F.3d 930, 934 (9th Cir. 2002). Supervisors may be held liable only if they “participated in or

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directed the violations, or knew of the violations and failed to act to prevent them.” Taylor v.

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List, 880 F.2d 1040, 1045 (9th Cir. 1989); accord Starr v. Baca, 652 F.3d 1202, 1205-06 (9th Cir.

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2011); Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009); Preschooler II v. Clark County

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School Board of Trustees, 479 F.3d 1175, 1182 (9th Cir. 2007); Harris v. Roderick, 126 F.3d

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1189, 1204 (9th Cir. 1997).

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The complaint does not contain any factual allegations indicating that the warden or

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director had any involvement in or knowledge of the events giving rise to plaintiff’s claim.

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Because the allegations fail to show that these defendants were involved in the alleged rights

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violations the complaint fails to state a claim against these defendants.

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IV.

Amending the Complaint

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Should plaintiff choose to file an amended complaint, he must demonstrate how the

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conditions about which he complains resulted in a deprivation of his constitutional rights. Rizzo,

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423 U.S. at 370-71. Also, the complaint must allege in specific terms how each named defendant

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is involved. Arnold v. Int’l Bus. Machs. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981). There can

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be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection

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between a defendant’s action and the claimed deprivation. Id.; Johnson v. Duffy, 588 F.2d 740,

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743 (9th Cir. 1978). Furthermore, “[v]ague and conclusory allegations of official participation in

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civil rights violations are not sufficient.” Ivey, 673 F.2d at 268.

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Plaintiff is advised that in an amended complaint he must clearly identify each defendant

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and the action that defendant took that violated his constitutional rights. The court is not required

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to review exhibits to determine what plaintiff’s charging allegations are as to each named

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defendant. If plaintiff wishes to add a claim, he must include it in the body of the complaint. The

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charging allegations must be set forth in the amended complaint, so defendants have fair notice of

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the claims plaintiff is presenting. That said, plaintiff need not provide every detailed fact in
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support of his claims. Rather, plaintiff should provide a short, plain statement of each claim. See

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Fed. R. Civ. P. 8(a).

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In an amended complaint, the allegations must be set forth in numbered paragraphs. Fed.

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R. Civ. P 10(b). The amended complaint must show the federal court has jurisdiction, the action

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is brought in the right place, and plaintiff is entitled to relief if plaintiff’s allegations are true. It

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must contain a request for particular relief. Plaintiff must identify as a defendant only persons

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who personally participated in a substantial way in depriving plaintiff of a federal constitutional

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right. Johnson, 588 F.2d at 743 (a person subjects another to the deprivation of a constitutional

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right if he does an act, participates in another’s act or omits to perform an act he is legally

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required to do that causes the alleged deprivation).
The federal rules contemplate brevity. See Galbraith v. County of Santa Clara, 307 F.3d

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1119, 1125 (9th Cir. 2002) (noting that “nearly all of the circuits have now disapproved any

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heightened pleading standard in cases other than those governed by Rule 9(b)”); Fed. R. Civ. P.

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84; cf. Rule 9(b) (setting forth rare exceptions to simplified pleading). Plaintiff’s claims must be

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set forth in short and plain terms, simply, concisely, and directly. See Swierkiewicz v. Sorema

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N.A., 534 U.S. 506, 514 (2002) (“Rule 8(a) is the starting point of a simplified pleading system,

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which was adopted to focus litigation on the merits of a claim.”); Fed. R. Civ. P. 8.

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Plaintiff is informed that the court cannot refer to a prior pleading in order to make his

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amended complaint complete. An amended complaint must be complete in itself without

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reference to any prior pleading. E.D. Cal. R. 220. Once plaintiff files an amended complaint, all

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prior pleadings are superseded. Therefore, in an amended complaint, as in an original complaint,

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

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By signing an amended complaint, plaintiff certifies he has made reasonable inquiry and

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has evidentiary support for his allegations, and for violation of this rule the court may impose

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sanctions sufficient to deter repetition by plaintiff or others. Fed. R. Civ. P. 11.

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MOTION TO APPOINT COUNSEL
Plaintiff has submitted, along with the complaint (ECF No. 1 at 1) and in a separate filing,
a motion to appoint counsel (ECF No. 5). In support of his motion he argues the court should
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appoint counsel because it is difficult for him to get copies and he alleges he cannot get evidence

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of the weapon used, but “they” would release the evidence to an attorney. (ECF No. 5 at 1.)

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The United States Supreme Court has ruled that district courts lack authority to require

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counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490

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U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the

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voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d

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1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).

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The test for exceptional circumstances requires the court to evaluate the plaintiff’s

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likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in

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light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328,

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1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances

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common to most prisoners, such as lack of legal education and limited law library access, do not

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establish exceptional circumstances that would warrant a request for voluntary assistance of

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counsel. In the present case, the court does not find the required exceptional circumstances.

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Plaintiff has not yet stated a cognizable claim; therefore, the court cannot make a determination

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regarding plaintiff’s likelihood of success on the merits. Accordingly, the motion to appoint

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counsel will be denied at this time.

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CONCLUSION

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1. Plaintiff’s motion 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 is

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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

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the Director of the California Department of Corrections and Rehabilitation filed

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concurrently herewith.

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3. Plaintiff’s motion to appoint counsel (ECF No. 5) is denied without prejudice.

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4. The complaint (ECF No. 1) is dismissed with leave to amend.

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5. Within sixty (60) days of the date of this order plaintiff shall file an amended complaint

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that complies with the with the requirements of the Civil Rights Act, the Federal Rules of
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Civil Procedure, and the Local Rules of Practice. The amended complaint must bear the

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docket number assigned to this case and must be labeled “First Amended Complaint.”

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6. The Clerk of the Court is directed to send plaintiff a copy of the civil rights complaint

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form.
7. Plaintiff is warned that his failure to comply with this order will result in a
recommendation that this action be dismissed.
Dated: September 8, 2020

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DB:12
DB:1/Orders/Prisoner/Civil.Rights/hern0739.scrn

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