Smith v. Chappell et al

Filing 8

ORDER OF DISMISSAL (Illston, Susan) (Filed on 9/16/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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FLOYD D. SMITH,

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No. C 13-310 SI (pr)

Plaintiff,

ORDER OF DISMISSAL

v.
K. CHAPPELL, Warden; et al.,
Defendants.
/

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INTRODUCTION

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Floyd D. Smith, an inmate incarcerated on death row at San Quentin State Prison, filed

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this pro se civil rights action under 42 U.S.C. § 1983, complaining about an alleged risk to his

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safety. The court reviewed the complaint, identified several deficiencies, and dismissed it with

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leave to amend. Smith then filed an amended complaint, which is now before the court for

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review under 28 U.S.C.§ 1915A.

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BACKGROUND

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Smith alleges in his amended complaint that, on or about July 18, 2012, correctional

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counselors Ebert and Sword tried to have him attacked or assaulted by other inmates by

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presenting to the Institution Classification Committee ("ICC") their recommendation that Smith

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could be assigned to death row’s exercise yard # 2 or # 3. Smith refused to be assigned to either

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of those yards and therefore was assigned to a different yard by the ICC. Smith alleges that
defendants Ebert and Sword made the recommendation for his assignment to exercise yard # 2

or # 3 to retaliate “against [him] for filing a grievance against Lt. Luna for not forwarding &

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processing a grievance that [he] filed against defendant B. Ebert.” Docket # 7 at 3. He also

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alleges that both Ebert and Sword “knew or should have known that [Smith] had safety concerns

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on the exercise yards” they recommended for him. Id. (He alleges that C/Os Ebert and Sword

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were supposed to read his central file before taking him to the ICC, and therefore saw or should

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have seen materials in his file from 2005 through 2008 that showed security concerns for him

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on yards # 2 and # 3.) Smith further alleges that he could have been harmed by correctional

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officials responding to violence if several things lined up, i.e., if he was assigned to either of

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those two yards, and he was present when violence erupted among the inmates, and prison

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United States District Court
For the Northern District of California

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officials responded with force. See id. at 3. He alleges that warden Chappelle neglected to

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supervise his subordinate employees to protect him. He further alleges that the recommendation

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that he be placed in exercise yard # 2 or # 3, where he had enemies, violated his Eighth

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Amendment right to be free from cruel and unusual punishment.

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DISCUSSION

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A federal court must engage in a preliminary screening of any case in which a prisoner

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seeks redress from a governmental entity or officer or employee of a governmental entity. See

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28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and dismiss

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any claims which are frivolous, malicious, fail to state a claim upon which relief may be granted,

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or seek monetary relief from a defendant who is immune from such relief. See id. at § 1915A(b).

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Pro se pleadings must be liberally construed. See Balistreri v. Pacifica Police Dep't, 901 F.2d

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696, 699 (9th Cir. 1990).

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that

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a right secured by the Constitution or laws of the United States was violated and (2) that the

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violation was committed by a person acting under the color of state law. See West v. Atkins, 487

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U.S. 42, 48 (1988).

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Eighth Amendment Allegations: The Eighth Amendment's prohibition of cruel and

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unusual punishment requires that prison officials take reasonable measures for the safety of
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inmates. See Farmer v. Brennan, 511 U.S. 825, 834 (1994). In particular, officials have a duty

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to protect inmates from violence at the hands of other inmates. See id. at 833. A prison official

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violates the Eighth Amendment only when two requirements are met: (1) the deprivation alleged

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is, objectively, sufficiently serious, and (2) the official is, subjectively, deliberately indifferent

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to the inmate's safety. See id. at 834. To be liable in a failure to prevent harm situation, the

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official must know of and disregard an excessive risk to inmate safety. See id. at 837.
The amended complaint fails to state a claim for an Eighth Amendment violation. Smith

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has not alleged an objectively serious condition, as his allegations plainly show that he never

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was sent to either allegedly dangerous exercise yard. He objected to the recommended

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United States District Court
For the Northern District of California

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placement, and was sent to a different yard. Smith also has not alleged the requisite mental state,

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as his allegations that defendants “knew or should have known” of a risk by looking at his files

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do not suffice to show that the defendants actually knew of the risk to his safety in the

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contemplated yards. The amended complaint’s allegations show that, when plaintiff did object

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to being placed in either of those yards, prison officials sent him to a different yard.1

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Retaliation Allegations: "Within the prison context, a viable claim of First Amendment

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retaliation entails five basic elements: (1) An assertion that a state actor took some adverse

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action against an inmate (2) because of (3) that prisoner's protected conduct, and that such action

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(4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not

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reasonably advance a legitimate correctional goal." Rhodes v. Robinson, 408 F.3d 559, 567-68

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(9th Cir. 2005) (footnote omitted).

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The amended complaint fails to state a claim for retaliation because Smith did not allege

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any harm or chilling effect. “In a constitutional tort, as in any other, a plaintiff must allege that

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the defendant’s actions caused him some injury.” Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir.

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In dismissing the original complaint with leave to amend, the court explained that Smith
had not alleged an objectively serious condition, because he had not alleged whether he actually
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the original complaint had not adequately alleged the requisite mental state because Smith had
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Smith failed to adequately allege either prong of an Eighth Amendment claim in his amended
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2000). His amended complaint plainly alleges that he did not suffer any harm: he objected to

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the recommended placement, and then was sent to another yard. Compare id. (no harm alleged

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where defendants did not identify the plaintiff as a snitch and thereby place him at risk of

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physical harm from other inmates and “despite the alleged threat of permanent placement in the

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SHU, Plaintiff also alleges he was released from the SHU upon being cleared of the charges after

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a hearing”). The amended complaint also is devoid of any fact suggesting a chilling effect. In

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light of the allegation that defendants “knew or should have known” of a danger if they read his

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file (rather than that they actually knew of a danger to him in those yards), plus the allegation

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that plaintiff was sent to a different yard when he objected, plus the absence of any allegation

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United States District Court
For the Northern District of California

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that defendants said anything suggesting they intended to retaliate, the amended complaint fails

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to state a plausible claim for retaliation by defendants.

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CONCLUSION

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For the foregoing reasons, this action is dismissed for failure to state a claim upon which

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relief may be granted. Further leave to amend has not been granted because it would be futile.

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The facts are fully described and, even with liberal construction, the amended complaint simply

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does not state a claim. The clerk shall close the file.

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IT IS SO ORDERED.
Dated: September 16, 2013

_______________________
SUSAN ILLSTON
United States District Judge

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