Oliver v. Noll et al

Filing 108

ORDER by Judge Ronald M. Whyte Granting 104 Motion to Dismiss; Dismissal With Leave to Amend. (jg, COURT STAFF) (Filed on 6/5/2012)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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JAMES LUCIUS OLIVER,

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Plaintiff,
v.
WARDEN C. NOLL, et al.,
Defendants.

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No. C 09-3840 RMW (PR)
ORDER GRANTING MOTION
TO DISMISS; DISMISSAL
WITH LEAVE TO AMEND

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Plaintiff, a state prisoner proceeding pro se, filed an amended civil rights complaint
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pursuant to 42 U.S.C. § 1983. Defendants have filed a motion to dismiss. Plaintiff has not filed
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an opposition. For the reasons stated below, the court GRANTS defendants’ motion to dismiss,
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and DISMISSES plaintiff’s amended complaint with leave to amend.
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BACKGROUND
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In the amended complaint, plaintiff alleges that on December 29, 2005, defendant
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Correctional Officer Gallegos violated prison policy in an attempt to murder plaintiff. (Am.
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Compl. at 3.) On that day, Gallegos had the control booth officer open up plaintiff’s cell door
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during an inmate count, and coerced plaintiff out of his cell by challenging him to a fist fight,
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taunting him, calling him names, and yelling at him. (Id.) Plaintiff began to get angry at
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Gallegos and exited his cell. (Id.) When plaintiff reached his cell door, plaintiff noticed the
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control booth officer pointing his rifle at plaintiff, and Gallegos was standing just out of the way
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Order Granting Motion to Dismiss; Dismissal with Leave to Amend
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of the rifle to give the officer a clear shot of plaintiff. (Id. at 3B.) Plaintiff re-entered his cell, at

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which time, Gallegos became louder and more disrespectful. Plaintiff alleged that Gallegos and

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the control booth officer violated the Eighth Amendment in their attempt to kill him. Plaintiff

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further alleged that defendants Variz and Medina failed to process his administrative appeals

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complaining about this incident, and otherwise, failed to protect him.

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DISCUSSION

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Defendants argue that plaintiff’s claims should be dismissed because: (1) the amended

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complaint fails to state a claim, and (2) they are entitled to qualified immunity.

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I.

Failure to State a Claim

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A.

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A motion to dismiss for failure to state a claim under Rule 12(b)(6) tests the legal

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sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). In considering

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whether the complaint is sufficient to state a claim, the court must accept as true all of the factual

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allegations contained in the complaint. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).

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However, the court need not accept as true “allegations that contradict matters properly subject

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to judicial notice or by exhibit” or “allegations that are merely conclusory, unwarranted

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deductions of fact, or unreasonable inferences.” St. Clare v. Gilead Scis., Inc. (In re Gilead Scis.

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Sec. Litig.), 536 F.3d 1049, 1055 (9th Cir. 2008). While a complaint need not allege detailed

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factual allegations, it “must contain sufficient factual matter, accepted as true, to “‘state a claim

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to relief that is plausible on its face.’” Iqbal, 129 S. Ct. at 1949 (quoting Bell Atlantic Corp. v.

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Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when it “allows the court to

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draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129

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S. Ct. at 1949. The court “must accept as true all of the factual allegations contained in the

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complaint,” Erickson v. Pardus, 551 U.S. 89, 94 (2007), and must construe pro se pleadings

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liberally, Hebbe v. Pliler, 611 F.3d 1202, 1205 (9th Cir. 2010).

Standard of Review

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In ruling on a Rule 12(b)(6) motion, federal courts are particularly liberal in construing

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allegations made in pro se civil rights complaints. See Thompson v. Davis, 295 F.3d 890, 895

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(9th Cir. 2002). Further, the court must give a pro se litigant leave to amend his complaint
Order Granting Motion to Dismiss; Dismissal with Leave to Amend
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“unless it determines that the pleading could not possibly be cured by the allegation of other

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facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (quoting Doe v. United

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States, 58 F.3d 494, 497 (9th Cir. 1995)).

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B.

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Defendants move to dismiss the complaint for failure to state a claim. A prisoner may

Analysis

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state a § 1983 claim under the Eighth Amendment against prison officials only where the

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officials acted with “deliberate indifference” to the threat of serious harm or injury to an inmate

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by another prisoner. See Berg, 794 F.2d at 459; see also Valandingham v. Bojorquez, 866 F.2d

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1135, 1138 (9th Cir. 1989) (deliberately spreading rumor that prisoner is snitch may state claim

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for violation of right to be protected from violence while in state custody). A prison official

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cannot be held liable under the Eighth Amendment for denying an inmate humane conditions of

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confinement unless the standard for criminal recklessness is met, i.e., the official knows of and

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

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it. See Farmer, 511 U.S. at 837. The official must both be aware of facts from which the

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inference could be drawn that a substantial risk of serious harm exists, and he must also draw the

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inference. See id. However, an Eighth Amendment claimant need not show that a prison official

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acted or failed to act believing that harm actually would befall an inmate; it is enough that the

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official acted or failed to act despite his knowledge of a substantial risk of serious harm. See id.

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at 842.

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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). However,

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allegations of verbal harassment and abuse fail to state a claim cognizable under 42 U.S.C.

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§ 1983. See Freeman v. Arpaio, 125 F.3d 732, 738 (9th Cir. 1997). Further, allegations of

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verbal harassment and abuse fail to state a claim cognizable under 42 U.S.C. § 1983. See

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Freeman v. Arpaio, 125 F.3d 732, 738 (9th Cir. 1997). However, in Keenan v. Hall, 83 F.3d

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1083, 1092 (9th Cir. 1996), the court distinguished the general rule that “verbal harassment . . .

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does not violate the Eighth Amendment,” and suggested that evidence of something more that

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was “calculated to and did cause [] psychological damage” might be sufficient to state a claim
Order Granting Motion to Dismiss; Dismissal with Leave to Amend
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for a constitutional violation. Moreover, in Parker v. Asher, 701 F. Supp. 192, 194-95 (D. Nev.

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1988), the court found that the inmate stated a cognizable Eighth Amendment claim when he

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alleged that a prison official pointed a loaded taser gun at the inmate because that action was

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more than a “mere naked threat.” A threat of deadly force made merely to inflict gratuitous fear

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and punishment when the party has both the opportunity to carry out the threat and evidences the

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intent to do so does state a cognizable claim under the Eighth Amendment. See Northington v.

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Jackson, 973 F.2d 1518, 1523 (10th Cir. 1992) (pointing gun at inmate’s head and threatening to

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shoot amounts to cognizable Eighth Amendment claim); Burton v. Livingston, 791 F.2d 97, 100

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(8th Cir. 1986) (drawing gun and terrorizing prisoner with threats of death while using racially

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offensive language states first amendment, due process and equal protection claims).
Taking plaintiff’s allegations as true as the court required to do, plaintiff claims that

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Gallegos intentionally taunted and angered plaintiff in an attempt to lure plaintiff out of his cell

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in order to engage in a fight, while Gallegos had another officer ready with his firearm to shoot

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plaintiff. “[T]he issue is not whether plaintiff will ultimately prevail, but whether he is entitled

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to offer evidence to support his claim.” Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th

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Cir. 1987). Here, plaintiff makes conclusory characterizations of Gallegos’ behavior, stating that

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Gallegos engaged in “taunting, degrading, and threatening behavior,” however, plaintiff’s

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description of Gallegos’ “behavior” does not give rise to an inference that any “comments were

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unusually gross even for a prison setting and were calculated to and did cause him psychological

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damage.” Keenan, 83 F.3d at 1092; see, e.g., Northington, 973 F.2d at 1523; Parker, 701 F.

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Supp at 194-95. As the amended complaint stands, plaintiff has failed to state a cognizable

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claim against Gallegos for deliberate indifference. However, because it is possible for plaintiff

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to cure this deficiency by alleging sufficient facts to support his claim, plaintiff will have an

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opportunity to amend his amended complaint.

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Regarding defendants Variz and Medina, taking plaintiff’s allegations as true, plaintiff

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claims that he sent in administrative appeals to defendants Variz and Medina on four different

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occasions stating that he was afraid for his life. (Am. Compl. at 3D.) Plaintiff alleges that each

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grievance disappeared after submission, and each complaint was ignored. (Id.) Plaintiff claims
Order Granting Motion to Dismiss; Dismissal with Leave to Amend
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that Variz and Medina have read many complaints regarding staff abuse and brutality yet do

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nothing to remedy the situation. Plaintiff’s amended complaint accuses Variz and Medina from

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not only failing to process his appeals, but he also intimates that they actively prohibited his

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appeals regarding Gallegos’ actions from being heard.

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As the court stated in its previous order, there is no constitutional right to a prison

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administrative appeal or grievance system. Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988).

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An incorrect decision on an administrative appeal or a failure to handle it in a particular way

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does not amount to a violation of a plaintiff’s constitutional rights. In addition, even assuming

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that plaintiff’s claim against Gallegos stated a cognizable claim, plaintiff does not allege that

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Variz or Medina inferred or otherwise knew that Gallegos had posed a substantial risk of harm to

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plaintiff prior to the incident. See Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005).

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Moreover, plaintiff’s statements that he filed other administrative appeals (presumably against

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the unnamed “Green Wall” prison officials) that were ignored are conclusory allegations. Thus,

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a reasonable inference cannot be drawn that Variz or Medina are liable for failing to protect

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plaintiff against unspecified dangers threatened by unspecified prison officials. As the claim

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currently stands, plaintiff has failed to state a cognizable claim against Variz and Medina.

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However, because it is possible for plaintiff to cure this deficiency by alleging sufficient facts to

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support his claim, plaintiff will have an opportunity to amend his amended complaint.1

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Defendant’s motion to dismiss is GRANTED.

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CONCLUSION

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For the foregoing reasons, the court hereby orders as follows:

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1.

Plaintiff’s amended complaint is DISMISSED with leave to amend.

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2.

If plaintiff can cure the pleading deficiencies described above, he shall file a

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SECOND AMENDED COMPLAINT within thirty days from the date this order is filed. The

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amended complaint must include the caption and civil case number used in this order (C 09-3840

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RMW (PR)) and the words SECOND AMENDED COMPLAINT on the first page. Plaintiff

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Because the court dismisses the complaint, it is unnecessary to address defendants’
argument for qualified immunity.
Order Granting Motion to Dismiss; Dismissal with Leave to Amend
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may not incorporate material from the prior complaint by reference. If plaintiff files a second

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amended complaint, he must allege, in good faith, facts - not merely conclusions of law - that

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demonstrate that he is entitled to relief under the applicable federal statutes. Failure to file a

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second amended complaint within thirty days and in accordance with this order will result

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in a finding that further leave to amend would be futile, and dismissal of this action.

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3.

Plaintiff is advised that an amended complaint supersedes the original complaint.

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“[A] plaintiff waives all causes of action alleged in the original complaint which are not alleged

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in the amended complaint.” London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981).

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Defendants not named in an amended complaint are no longer defendants. See Ferdik v.

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Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992).
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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

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of Civil Procedure 41(b).

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IT IS SO ORDERED.
DATED:
RONALD M. WHYTE
United States District Judge

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Order Granting Motion to Dismiss; Dismissal with Leave to Amend
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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

JAMES LUCIUS OLIVER,

Case Number: CV09-03840 RMW

Plaintiff,

CERTIFICATE OF SERVICE

v.
CHIEF DEPUTY WARDEN et al,
Defendant.

/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on June 5, 2012, 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.

James Lucius Oliver P-11301
Soledad State Prison (C.T.F.) North
Facility B, Lassen A, 116 Lower
P.O. Box 705
Soledad, CA 93960
Dated: June 5, 2012
Richard W. Wieking, Clerk
By: Jackie Lynn Garcia, Deputy Clerk