Simmons v. Williams et al
Filing
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ORDER signed by Magistrate Judge Edmund F. Brennan on 11/14/2011 ORDERING that the complaint is DISMISSED with leave to amend within 30 days. (Yin, K)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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MELVIN JOSEPH SIMMONS,
Plaintiff,
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No. CIV S-09-3505 EFB P
vs.
K. WILLIAMS, et al.,
Defendants.
ORDER
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Plaintiff, a state prisoner, proceeds pro se and in forma pauperis in a civil rights action
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brought under 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302
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pursuant to 28 U.S.C. § 636(b)(1) and is before the undersigned pursuant to plaintiff’s consent.
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See 28 U.S.C. § 636; see also E.D. Cal. Local Rules, Appx. A, at (k)(4). After two dismissals
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pursuant to 28 U.S.C. § 1915A, plaintiff has filed a second amended complaint.
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Pursuant to § 1915A, the court shall review “a complaint in a civil action in which a
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prisoner seeks redress from a governmental entity or officer or employee of a governmental
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entity.” 28 U.S.C. § 1915A(a). “On review, the court shall identify cognizable claims or dismiss
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the complaint, or any portion of the complaint, if the complaint (1) is frivolous, malicious, or
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fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a
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defendant who is immune from such relief.” Id. § 1915A(b).
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The court has reviewed plaintiff’s most recent complaint pursuant to § 1915A and finds
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that it, too, fails to state a cognizable claim. The complaint names four defendants – K.
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Williams, James Walker, T. Virga, and C. Heintschel. The complaint purports to state
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Fourteenth Amendment Due Process claims as well as Eighth Amendment deliberate
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indifference claims. The complaint alleges the following:
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In February of 2009, defendant Virga ended plaintiff’s single cell status, despite
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plaintiff’s objections and safety concerns. Defendant Walker should have known that plaintiff’s
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safety was in jeopardy and should have allowed plaintiff to remain on single status. Plaintiff was
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subsequently housed in general population and celled with another inmate. Plaintiff’s cellmate
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battered plaintiff during an attempted sexual assault.
In March of 2009, defendant Virga failed to protect plaintiff from being punished for
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reporting the attempted sexual assault. After the attempted sexual assault, defendant Williams
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submitted a false report charging plaintiff with battery on an inmate with a weapon. Williams
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failed to take plaintiff’s statement, or to report the incident as an attempted sexual assault on
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plaintiff.
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In April of 2009, plaintiff received a written disposition, signed by defendant Heintschel,
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indicating that plaintiff was guilty as charged based on the evidence presented at a hearing, and
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that plaintiff was assessed a loss of 360 days of credits. Heintschel conducted the disciplinary
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hearing in plaintiff’s absence. Exhibit B to the complaint indicates that plaintiff declined to
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appear at the hearing and therefore waived his right to be present.
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In May of 2009, plaintiff was denied a fair and impartial “ICC” hearing regarding the
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rules violation report drafted by defendant Williams, because Williams acted as captain of the
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committee panel members. Walker should have known that Williams was the reporting officer
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and should not have been permitted Williams to sit on the committee acting as a decision maker.
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Exhibit C to the complaint indicates that “ICC” is shorthand for the “Institutional Classification
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Committee.” It also appears from Exhibit C that as a result of the ICC hearing, plaintiff received
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an “adverse transfer.”
It is plaintiff’s responsibility to allege facts necessary to state a plausible claim for relief.
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Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009); Moss v. U.S. Secret Serv., 572 F.3d 962, 969
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(9th Cir. 2009). In order to state a claim under 42 U.S.C. § 1983, a plaintiff must allege: (1) the
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violation of a federal constitutional or statutory right; and (2) that the violation was committed
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by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988);
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Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).
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An individual defendant is not liable on a civil rights claim unless the facts establish the
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defendant’s personal involvement in the constitutional deprivation or a causal connection
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between the defendant’s wrongful conduct and the alleged constitutional deprivation. See
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Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44 (9th
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Cir. 1978). That is, plaintiff may not sue any official on the theory that the official is liable for
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the unconstitutional conduct of his or her subordinates. Iqbal, 129 S. Ct. at 1948. Because
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respondeat superior liability is inapplicable to § 1983 suits, “a plaintiff must plead that each
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Government-official defendant, through the official’s own individual actions, has violated the
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Constitution.” Id.
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The allegations against defendant Walker fail under these standards, as plaintiff appears
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to name Walker as a defendant solely because of Walker’s apparent position as a supervisor.
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The complaint does not allege facts showing that Walker personally participated in depriving
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plaintiff of any constitutional rights. The allegations against defendant Walker thus fail to state a
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cognizable claim.
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The complaint alleges defendant Virga violated plaintiff’s Eighth Amendment rights
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because he ended plaintiff’s single cell status, which resulted in plaintiff being sexually assaulted
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by his cellmate. Under the Eighth Amendment, “prison officials have a duty to protect prisoners
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from violence at the hands of other prisoners.” Farmer v. Brennan, 511 U.S. 825, 833 (1994)
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(internal quotation marks, ellipsis, and citation omitted). However, “not . . . every injury
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suffered by one prisoner at the hands of another . . . translates into constitutional liability for
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prison officials responsible for the victim’s safety.” Id. at 834. A prison official may be held
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liable for an assault suffered by one inmate at the hands of another only where the assaulted
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inmate can show that the injury is sufficiently serious, id. at 834 (citing Wilson v. Seiter, 501
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U.S. 294, 298 (1991)), and that the prison official was deliberately indifferent to the risk of
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harm, id. at 837. Thus, the relevant inquiry is whether prison officials, “acting with deliberate
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indifference, exposed a prisoner to a sufficiently substantial risk of serious damage to his future
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health.” Id. at 834 (internal quotation omitted). To be deliberately indifferent, the “official must
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both be aware of facts from which the inference could be drawn that a substantial risk of serious
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harm exists, and he must also draw the inference.” Id. “Whether a prison official had the
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requisite knowledge of a substantial risk is a question of fact subject to demonstration in the
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usual ways, including inference from circumstantial evidence . . . and a factfinder may conclude
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that a prison official knew of a substantial risk from the very fact that the risk was obvious.” Id.
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at 842. The “obviousness of a risk,” however, is not conclusive, and “a prison official may
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demonstrate that the obvious escaped him . . .” Id. at 843, n.8.
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The complaint does not allege facts showing that defendant Virga acted with the requisite
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deliberate indifference when he discontinued plaintiff’s single cell status. The allegations
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against defendant Virga thus fail to state a cognizable claim.
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The complaint also alleges defendants Heintschel and Williams violated plaintiff’s due
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process rights. To state a claim for violation of the right to procedural due process, plaintiff
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must allege facts showing: “(1) a deprivation of a constitutionally protected liberty or property
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interest, and (2) a denial of adequate procedural protections.” Kildare v. Saenz, 325 F.3d 1078,
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1085 (9th Cir. 2003). It appears from the complaint and its exhibits that plaintiff lost good time
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credits following the disciplinary hearing, and that he received an “adverse transfer” following
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the ICC hearing.
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In the context of a disciplinary proceeding where a liberty interest is at stake, due process
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requires that “some evidence” support the disciplinary decision. Superintendent v. Hill, 472 U.S.
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445, 455 (1985). The inmate must also receive: “(1) advance written notice of the disciplinary
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charges; (2) an opportunity, when consistent with institutional safety and correctional goals, to
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call witnesses and present documentary evidence in his defense; and (3) a written statement by
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the factfinder of the evidence relied on and the reasons for the disciplinary action.” Id. at 454
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(citing Wolff, 418 U.S. at 563-67). Where an inmate is illiterate or the facts of the case are
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complex, he may be entitled to seek the aid of a fellow inmate or staff. Wolff, 418 U.S. at 570.
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The complaint does not allege facts showing plaintiff was denied due process with respect to the
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disciplinary hearing.
Nor does the complaint allege sufficient facts to show plaintiff was denied due process
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with respect to the ICC hearing. “[T]he Constitution itself does not give rise to a liberty interest
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in avoiding transfer to more adverse conditions of confinement.” Wilkinson v. Austin, 545 U.S.
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209, 221 (2005). However, state regulations may create a liberty interest in avoiding restrictive
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conditions of confinement if those conditions “present a dramatic departure from the basic
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conditions of [the inmate’s] sentence.” Sandin v. Conner, 515 U.S. 472, 485 (1995). Under
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Sandin, a liberty interest may exist where placement in administrative segregation “imposes
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atypical and significant hardship in the inmate in relation to the ordinary incidents of prison
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life.” Id. at 484. Here, the complaint does not allege facts showing the ICC hearing resulted in a
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dramatic departure from the basic conditions of his sentence.
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Accordingly, plaintiff’s second amended complaint must be dismissed. The court will
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grant plaintiff one final opportunity to amend his complaint so as to state a viable claim. Any
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amended complaint must cure the deficiencies identified above and adhere to the following
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requirements:
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Any amended complaint shall identify each defendant in both the caption and the body of
the amended complaint, and clearly set forth the allegations against each such defendant.
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Pursuant to Rule 8 of the Federal Rules of Civil Procedure, any amended complaint must include
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“a short and plain statement of the claim” showing entitlement to relief. Fed. R. Civ. P. 8(a)(2).
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Any amended complaint must be complete in itself without reference to any prior
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pleading. E.D. Cal. Local Rule 220; see Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once
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plaintiff files an amended complaint, the original pleading is superseded.
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It must show that the federal court has jurisdiction and that plaintiff’s action is brought in
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the right place, that plaintiff is entitled to relief if plaintiff’s allegations are true, and must
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contain a request for particular relief. Plaintiff must identify as a defendant only persons who
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personally participated in a substantial way in depriving plaintiff of a federal constitutional right.
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Johnson, 588 F.2d at 743-44 (9th Cir. 1978) (a person subjects another to the deprivation of a
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constitutional right if he does an act, participates in another’s act or omits to perform an act he is
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legally required to do that causes the alleged deprivation).
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Plaintiff may not change the nature of this suit by alleging new, unrelated claims in an
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amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot”
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complaints).
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Accordingly, the court hereby orders that the complaint is dismissed with leave to amend
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within 30 days. The amended complaint must bear the docket number assigned to this case and
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be titled “Third Amended Complaint.” Failure to comply with this order will result in this action
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being dismissed for failure to state a claim. If plaintiff files an amended complaint stating a
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cognizable claim the court will proceed with service of process by the United States Marshal.
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Dated: November 14, 2011.
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