Escobar v. Kerman et al

Filing 13

ORDER OF DISMISSAL WITH LEAVE TO AMEND re 1 Complaint, filed by Dennis J. Escobar. Signed by Judge James Donato on 2/8/18. (lrcS, COURT STAFF) (Filed on 2/8/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DENNIS J. ESCOBAR,
Plaintiff,

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ORDER OF DISMISSAL WITH
LEAVE TO AMEND

v.
SCOTT KERMAN, et al.,
Defendants.

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United States District Court
Northern District of California

Case No. 17-cv-04238-JD

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Plaintiff, a state prisoner, has filed a pro se civil rights complaint under 42 U.S.C. § 1983.

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The original complaint was dismissed with leave to amend and plaintiff has filed an amended

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complaint.
DISCUSSION

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STANDARD OF REVIEW

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Federal courts must engage in a preliminary screening of cases in which prisoners seek

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redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). In its review, the Court must identify any cognizable claims, and dismiss any claims

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

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monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro se

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pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th

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Cir. 1990).

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

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claim showing that the pleader is entitled to relief.” Although a complaint “does not need detailed

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factual allegations, . . . a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to

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relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a

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cause of action will not do. . . . Factual allegations must be enough to raise a right to relief above

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the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations

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omitted). A complaint must proffer “enough facts to state a claim to relief that is plausible on its

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face.” Id. at 570. The United States Supreme Court has explained the “plausible on its face”

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standard of Twombly: “While legal conclusions can provide the framework of a complaint, they

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must be supported by factual allegations. When there are well-pleaded factual allegations, a court

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should assume their veracity and then determine whether they plausibly give rise to an entitlement

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to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that: (1) a right secured by
the Constitution or laws of the United States was violated, and (2) the alleged deprivation was

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United States District Court
Northern District of California

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committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

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LEGAL CLAIMS

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Plaintiff presents many allegations regarding different incidents at three different prisons.

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Federal Rule Civil Procedure 18(a) provides: “A party asserting a claim to relief as an original

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claim, counterclaim, cross-claim, or third-party claim, may join, either as independent or as

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alternate claims, as many claims, legal, equitable, or maritime as the party has against an opposing

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party.” “Thus multiple claims against a single party are fine, but Claim A against Defendant 1

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should not be joined with unrelated Claim B against Defendant 2.” George v. Smith, 507 F.3d

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605, 607 (7th Cir. 2007). “Unrelated claims against different defendants belong in different

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suits[.]” Id.

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It is true that Fed. R. Civ. P. 20(a) provides that “[p]ersons . . . may be joined in one action

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as defendants if: (A) any right is asserted against them jointly, severally, or in the alternative with

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respect to or arising out of the same transaction, occurrence, or series of transactions or

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occurrences; and (B) any question of law or fact common to all defendants will arise in the

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action.” However, “[a] buckshot complaint that would be rejected if filed by a free person – say, a

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suit complaining that A defrauded the plaintiff, B defamed him, C punched him, D failed to pay a

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debt, and E infringed his copyright, all in different transactions – should be rejected if filed by a

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prisoner.” Id. at 607.
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The Eighth Amendment requires that prison officials take reasonable measures to

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

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prison officials have a duty to protect prisoners from violence at the hands of other prisoners. Id.

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at 833; Cortez v. Skol, 776 F. 3d 1046, 1050 (9th Cir. 2015). The failure of prison officials to

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protect inmates from attacks by other inmates or from dangerous conditions at the prison violates

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the Eighth Amendment when two requirements are met: (1) the deprivation alleged is, objectively,

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sufficiently serious; and (2) the prison official is, subjectively, deliberately indifferent to inmate

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health or safety. Farmer, 511 U.S. at 834. A prison official is deliberately indifferent if he knows

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of and disregards an excessive risk to inmate health or safety by failing to take reasonable steps to

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United States District Court
Northern District of California

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abate it. Id. at 837.
“[T]he treatment a prisoner receives in prison and the conditions under which he is

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confined are subject to scrutiny under the Eighth Amendment.” Helling v. McKinney, 509 U.S.

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25, 31 (1993). But a prison official only violates the Eighth Amendment when two requirements

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are met. Wilson v. Seiter, 501 U.S. 294, 298 (1991). First, the plaintiff must satisfy an objective

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requirement by showing that the deprivation alleged poses “a substantial risk of serious harm.”

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Farmer, 511 U.S. at 834. Second, the plaintiff must satisfy a subjective requirement by showing

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that the prison official inflicted the deprivation with a “sufficiently culpable state of mind,” which

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in prison conditions cases is one of “deliberate indifference” to inmate health or safety. Id. at 834.

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A prison official is deliberately indifferent if he knows of and disregards an excessive risk to

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inmate health or safety. Id. at 837.

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Plaintiff presents many allegations regarding various incidents that occurred at the

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Substance Abuse Treatment Facility (“SATF”), High Desert State Prison (“HDSP”) and Salinas

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Valley State Prison (“SVSP”). Substance Abuse Treatment Facility and HDSP are located in the

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Eastern District of California. The defendants and claims associated with these claims are

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dismissed without prejudice from this action and plaintiff should file a new action in the Eastern

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District of California. This case will focus on the events at SVSP which is in this district.

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Plaintiff states that after his arrival at SVSP he was placed in a double cell and never had

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an Institutional Classification Hearing to determine why he should not continue in a single cell.

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Plaintiff states he has various psychological illnesses and a week later his cellmate attacked him.

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The amended complaint is dismissed with leave to amend to provide more information and present

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a cognizable claim.

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To the extent that plaintiff presents a failure to protect claim he must describe the events
surrounding that attack by his cellmate, how the specific defendants were deliberately indifferent

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and how it relates to his psychological problems, which he should also describe. Similarly, to the

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extent that plaintiff contends that he should not have been placed in a double cell; he must provide

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more information to state an Eighth Amendment claim regarding his psychological problems and

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United States District Court
Northern District of California

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why placing him in a double cell violated his constitutional rights. Plaintiff should describe the

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specific actions of each named defendant. The second amended complaint should only present

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allegations regarding defendants and events at SVSP.
CONCLUSION

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The amended complaint is DISMISSED with leave to amend. Claims and

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defendants regarding SATF and HDSP are dismissed from this action and plaintiff should file a

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complaint in the Eastern District of California to pursue those claims. This action continues with

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respect to the claims and defendants at SVSP. The amended complaint must be filed within

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twenty-eight (28) days of the date this order is filed and must include the caption and civil case

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number used in this order and the words SECOND AMENDED COMPLAINT on the first page.

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Because an amended complaint completely replaces the original complaint, plaintiff must include

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in it all the claims he wishes to present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir.

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1992). He may not incorporate material from the original complaint by reference. Failure to

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amend within the designated time will result in the dismissal of this case.

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2.

It is the plaintiff’s responsibility to prosecute this case. Plaintiff must keep the

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Court informed of any change of address by filing a separate paper with the clerk headed “Notice

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of Change of Address,” and must comply with the Court’s orders in a timely fashion. Failure to

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do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of
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Civil Procedure 41(b).
IT IS SO ORDERED.
Dated: February 8, 2018

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JAMES DONATO
United States District Judge

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United States District Court
Northern District of California

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DENNIS J. ESCOBAR,

Case No. 17-cv-04238-JD

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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SCOTT KERMAN, et al.,
Defendants.

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.

United States District Court
Northern District of California

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That on February 8, 2018, I SERVED a true and correct copy(ies) of the attached, by
placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.

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Dennis J. Escobar ID: #:E-14934
High Desert State Prison (HDSP)
P.O. Box 3030, B4-120-L
Susanville, CA 96127

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Dated: February 8, 2018

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Susan Y. Soong
Clerk, United States District Court

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By:________________________
LISA R. CLARK, Deputy Clerk to the
Honorable JAMES DONATO

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