(PC) Vergara v. Datray et al, No. 1:2008cv00609 - Document 9 (E.D. Cal. 2009)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dennis L. Beck on 2/18/2009, Recommending the DISMISSAL of Certain Defendants 7 8 . Motions referred to Judge Lawrence J. O'Neill. (Objections to F&R due by 3/23/2009)(Figueroa, O)
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(PC) Vergara v. Datray et al Doc. 9 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 LUIS GORDIANO VERGARA, 10 11 CASE NO. 1:08-cv-00609-LJO-DLB PC Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF CERTAIN DEFENDANTS v. 12 D. DATRAY, et al., 13 (Docs. 7, 8) Defendants. RESPONSE DUE WITHIN THIRTY DAYS / 14 15 I. Findings and Recommendations Following Screening of Complaint 16 Plaintiff Luis Gordiano Vergara (“Plaintiff”) is a federal prisoner proceeding pro se and 17 in forma pauperis in this civil rights action pursuant to Bivens v. Six Unknown Named Agents of 18 Federal Bureau of Narcotics, 403 U.S. 388 (1971), which provides a remedy for violation of civil 19 rights by federal actors. Plaintiff filed his complaint on May 2, 2008. (Doc. 1.) 20 On January 14, 2009, the Court issued an order finding that Plaintiff’s allegations give 21 rise to cognizable claims for relief under Bivens against defendants Datray, Cobbs, Cole, and 22 Orosco for violating Plaintiff’s Eighth Amendment rights. (Doc. 7.) However, the Court found 23 that Plaintiff’s allegations do not give rise to any claims for relief against defendants Silva and 24 Shank. (Id.) The Court ordered Plaintiff to either file an amended complaint or notify the Court 25 that he wishes to proceed only on his cognizable Eighth Amendment claims. (Id.) On February 26 13, 2009, Plaintiff notified the Court that he does not wish to amend and wishes to proceed only 27 on his cognizable Eighth Amendment claims. (Doc. 8.) Based on Plaintiff’s notice, the instant 28 Findings and Recommendations now issues. 1 Dockets.Justia.com 1 A. 2 The Court is required to screen complaints brought by prisoners seeking relief against a Screening Requirement 3 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 4 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 5 legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or 6 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 7 § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion thereof, that may have been 8 paid, the court shall dismiss the case at any time if the court determines that . . . the action or 9 appeal . . . fails to state a claim upon which relief may be granted.” 28 U.S.C. § 10 1915(e)(2)(B)(ii). 11 B. 12 “Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited Pleading Requirement- Rule 8(a) 13 exceptions,” none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 14 U.S. 506, 512 (2002); Fed. R. Civ. Pro. 8(a). Pursuant to Rule 8(a), a complaint must contain “a 15 short and plain statement of the claim showing that the pleader is entitled to relief . . . .” Fed. R. 16 Civ. Pro. 8(a). “Such a statement must simply give the defendant fair notice of what the 17 plaintiff’s claim is and the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512. A court 18 may dismiss a complaint only if it is clear that no relief could be granted under any set of facts 19 that could be proved consistent with the allegations. Id. at 514. “‘The issue is not whether a 20 plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support 21 the claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and 22 unlikely but that is not the test.’” Jackson v. Carey, 353 F.3d 750, 755 (9th Cir. 2003) (quoting 23 Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)); see also Austin v. Terhune, 367 F.3d 1167, 1171 24 (9th Cir. 2004) (“‘Pleadings need suffice only to put the opposing party on notice of the claim . . . 25 .’” (quoting Fontana v. Haskin, 262 F.3d 871, 977 (9th Cir. 2001))). However, “the liberal 26 pleading standard . . . applies only to a plaintiff’s factual allegations.” Neitze v. Williams, 490 27 U.S. 319, 330 n.9 (1989). “[A] liberal interpretation of a civil rights complaint may not supply 28 essential elements of the claim that were not initially pled.” Bruns v. Nat’l Credit Union Admin., 2 1 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 2 1982)). 3 C. 4 Plaintiff is currently a federal prisoner at Coleman Federal Correctional Complex in Summary of Plaintiff’s Complaint 5 Coleman, Florida. Plaintiff was formerly imprisoned at United States Penitentiary-Atwater, in 6 Atwater, California, where the acts he complains of occurred. Plaintiff names as defendants: 7 Unit Manager Orosco; Lieutenants D. Datray and Cobbs; and Officers Cole, Silva, and Shank. 8 Plaintiff alleges the following. Plaintiff had contacted Orosco both verbally and by 9 writing that there was a problem with Plaintiff’s presence in Unit 3-A. Other inmates wanted 10 Plaintiff to participate in illegal activities, and Plaintiff refused. These inmates threatened to 11 harm Plaintiff. Plaintiff requested a move from 3-A to 3-B. After receiving no assistance from 12 Orosco, Plaintiff informed Datray, Cobbs, and Cole of his situation. Datray and Cobbs told 13 Orosco, but Orosco refused to move him. (Doc. 1, pp. 2, 5.) 14 On April 13, 2007, Plaintiff was severely assaulted by several inmates in front of a guard 15 tower. Other correctional officers failed to respond properly to this situation. (Id.) 16 Plaintiff claims a failure to protect in violation of the Eighth Amendment. Plaintiff seeks 17 monetary damages. 18 19 20 D. Discussion 1. Eighth Amendment - Failure to Protect To state a claim under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), and 21 its progeny, Plaintiff must allege that (1) a right secured by the Constitution of the United States 22 was violated and (2) the alleged violation was committed by a federal actor. See Van Strum v. 23 Lawn, 940 F.2d 406, 409 (9th Cir. 1991) (42 U.S.C. § 1983 and Bivens actions are identical save 24 for the replacement of a state actor under § 1983 with federal actor under Bivens). 25 To constitute cruel and unusual punishment in violation of the Eighth Amendment, prison 26 conditions must involve “the wanton and unnecessary infliction of pain . . . .” Rhodes v. 27 Chapman, 452 U.S. 337, 347 (1981). Although prison conditions may be restrictive and harsh, 28 3 1 prison officials must provide prisoners with food, clothing, shelter, sanitation, medical care, and 2 personal safety. Id.; Toussaint v. McCarthy, 801 F.2d 1080, 1107 (9th Cir. 1986); Hoptowit v. 3 Ray, 682 F.2d 1237, 1246 (9th Cir. 1982). Prison officials have a duty to take reasonable steps to 4 protect inmates from physical abuse. Hoptowit, 682 F.2d at 1250; see Farmer v. Brennan, 511 5 U.S. 825, 833 (1994). To establish a violation of this duty, the prisoner must establish that 6 prison officials were deliberately indifferent to a substantial risk of serious harm to the inmates’s 7 safety. Farmer, 511 U.S. at 834. The deliberate indifference standard involves an objective and 8 a subjective prong. First, the alleged deprivation must be, in objective terms, “sufficiently 9 serious . . . .” Farmer at 834 (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)). Second, the 10 prison official must “know[] of and disregard[] an excessive risk to inmate health or safety.” Id. 11 at 837. 12 Plaintiff alleges that he informed Datray, Cobbs, Cole, and Orosco of the threats he 13 received from certain inmates because of his refusal to participate in illegal activities. Plaintiff 14 requested a move to a different unit, but no such move occurred. Plaintiff subsequently suffered 15 a severe assault at the hand of several inmates. (Doc. 1, pp. 2, 5.) Plaintiff has stated a 16 cognizable Eighth Amendment claim under Bivens against Datray, Cobbs, Cole, and Orosco. 17 Plaintiff names Silva and Shank as defendants, but fails to link any affirmative act or 18 omission by them to an alleged violation of Plaintiff’s federal rights. Plaintiff thus fails to state a 19 Bivens claim against Silva and Shank. 20 II. Conclusion 21 Plaintiff has stated a cognizable Bivens claim against defendants Datray, Cobbs, Cole, 22 and Orosco for failure to protect in violation of the Eighth Amendment, but states no cognizable 23 claims against defendants Silva and Shank. The Court provided Plaintiff with the opportunity to 24 file an amended complaint but Plaintiff opted to proceed on the claims found to be cognizable by 25 the Court. 26 // 27 // 28 4 1 Accordingly, it is HEREBY RECOMMENDED that: 2 1. 3 4 Plaintiff’s Eighth Amendment claims; and 2. 5 6 This action proceed only against defendants Datray, Cobbs, Cole, and Orosco on Defendants Silva and Shank be dismissed from this action for Plaintiff’s failure to state any claims upon which relief may be granted. These Findings and Recommendations will be submitted to the United States District 7 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 8 thirty (30) days after being served with these Findings and Recommendations, plaintiff may file 9 written objections with the court. The document should be captioned “Objections to Magistrate 10 Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections 11 within the specified time may waive the right to appeal the District Court’s order. Martinez v. 12 Ylst, 951 F.2d 1153 (9th Cir. 1991). 13 14 15 IT IS SO ORDERED. Dated: 3b142a February 18, 2009 /s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 5
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