(PC) Harper v. Schwarzenegger et al, No. 1:2010cv00926 - Document 41 (E.D. Cal. 2013)
Court Description: FINDINGS and RECOMMENDATIONS Recommending That This Action be Dismissed With Prejudice for Failure to State a Claim Upon Which Relief May be Granted Under 1983, signed by Magistrate Judge Gary S. Austin on 11/18/2013, referred to Judge O'Neill. Objections to F&R's Due Within Thirty Days. (Marrujo, C)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 Plaintiff, 13 14 1:10-cv-00926-LJO-GSA-PC JASON S. HARPER, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS ACTION BE DISMISSED WITH PREJUDICE FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED UNDER § 1983 vs. ARNOLD SCHWARZENEGGER, et al., 15 Defendants. OBJECTIONS, IF ANY, DUE WITHIN THIRTY DAYS 16 17 18 I. BACKGROUND 19 Jason S. Harper (“Plaintiff”) is a state prisoner proceeding pro se with this civil rights 20 action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on 21 May 24, 2010. (Doc. 1.) On December 13, 2010, Plaintiff filed the First Amended Complaint. 22 (Doc. 9.) On April 12, 2012, the Court dismissed the First Amended Complaint for failure to 23 state a claim, with leave to amend. (Doc. 11.) On July 12, 2012, Plaintiff filed the Second 24 Amended Complaint. (Doc. 16.) On March 1, 2013, the court issued an order striking the 25 Second Amended Complaint for lack of Plaintiff’s signature, with leave to amend. (Doc. 19.) 26 On March 28, 2013, Plaintiff filed the Third Amended Complaint. (Doc. 23.) On April 15, 27 2013, Plaintiff filed a motion for leave to amend the complaint, which was granted. (Docs. 26, 28 1 1 27.) On May 20, 2013, Plaintiff filed the Fourth Amended Complaint, which is now before the 2 court for screening. (Doc. 33.) 3 II. SCREENING REQUIREMENT 4 The court is required to screen complaints brought by prisoners seeking relief against a 5 governmental entity or officer or employee of a governmental entity. 28 U.S.C. ' 1915A(a). 6 The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 7 legally Afrivolous or malicious,@ that fail to state a claim upon which relief may be granted, or 8 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 9 ' 1915A(b)(1),(2). ANotwithstanding any filing fee, or any portion thereof, that may have been 10 paid, the court shall dismiss the case at any time if the court determines that . . . the action or 11 appeal fails to state a claim upon which relief may be granted.@ 28 U.S.C. ' 1915(e)(2)(B)(ii). 12 A complaint is required to contain Aa short and plain statement of the claim showing 13 that the pleader is entitled to relief . . . .@ Fed. R. Civ. P. 8(a)(2). Detailed factual allegations 14 are not required, but A[t]hreadbare recitals of the elements of a cause of action, supported by 15 mere conclusory statements, do not suffice.@ Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 16 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 17 (2007)). While a plaintiff=s allegations are taken as true, courts Aare not required to indulge 18 unwarranted inferences,@ Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) 19 (internal quotation marks and citation omitted). Plaintiff must set forth Asufficient factual 20 matter, accepted as true, to >state a claim to relief that is plausible on its face.=@ Iqbal 556 U.S. 21 at 678. While factual allegations are accepted as true, legal conclusions are not. Id. The mere 22 possibility of misconduct falls short of meeting this plausibility standard. Id. at 678-79; Moss 23 v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 24 III. SUMMARY OF FOURTH AMENDED COMPLAINT 25 Plaintiff is presently incarcerated at the California Substance Abuse Treatment Facility 26 (SATF) in Corcoran, California. The events at issue occurred at Pleasant Valley State Prison 27 (PVSP) in Coalinga, California, Kern Valley State Prison (KVSP) in Delano, California, and 28 SATF. Plaintiff names 22 defendants, including former Governor Arnold Schwartzenegger, 2 1 CDCR Secretary Matthew Cates, CDCR Under Secretary Scott Kernan, PVSP Warden James 2 A. Yates, PVSP Chief Deputy Warden M.E. Spearman, PVSP Associate Warden J Ahlin, 3 KVSP Warden M. Biter, SATF Warden Ralph Diaz, SATF Associate Warden C. Etchebehere, 4 and 13 correctional officers of various ranks from PVSP, KVSP, and SATF. Plaintiff’s factual 5 allegations follow. 6 PVSP 7 On June 22, 2009, at PVSP, Plaintiff was asleep with his hearing aids out of his ears. 8 Without warning, Plaintiff’s cell mate snatched him from the top bunk, forcefully slammed him 9 face down onto the bottom bunk, tied him up, removed his underwear, and sexually assaulted 10 him from behind. Plaintiff tried to scream, but his head was held down in the mattress. The 11 perpetrator then turned Plaintiff over and forced him to perform oral sex. The cell mate 12 threatened Plaintiff with serious injury or death if he ever told anyone. The cell mate also told 13 Plaintiff to swallow the evidence, but Plaintiff managed to spit the contents of his mouth into a 14 ziplock bag and save it. After the perpetrator was transferred and Plaintiff felt safe, he reported 15 the incident to a correctional officer. Plaintiff was interviewed, gave officials the ziplock bag, 16 and was given new clothes and taken to the hospital for a sexual assault kit. 17 In January 2010, Plaintiff had a mental breakdown and was admitted to a crisis bed, 18 diagnosed with PTSD, and given medication. Plaintiff continues to have occasional flashbacks. 19 Plaintiff also had fights with other cell mates because they found out about the sexual assault. 20 Plaintiff alleges that defendants at PVSP knew that the perpetrator had other victims 21 before they placed Plaintiff in the cell with him. Defendants did not take proper measures to 22 ensure Plaintiff’s safety before placing him with the perpetrator. 23 KVSP and SATF 24 Plaintiff alleges that prison officials at KVSP and SATF continued to place him at risk 25 of harm by failing to follow the rules and regulations to properly screen out cell mates who 26 may be a threat to ADA inmates. 27 /// 28 /// 3 1 Relief Requested 2 Plaintiff requests monetary damages, declaratory relief, and injunctive relief including 3 permanent single-cell status. 4 IV. 5 PLAINTIFF’S CLAIMS The Civil Rights Act under which this action was filed provides: 6 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 7 8 9 10 42 U.S.C. ' 1983. ASection 1983 . . . creates a cause of action for violations of the federal 11 Constitution and laws.@ Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997) 12 (internal quotations omitted). ATo the extent that the violation of a state law amounts to the 13 deprivation of a state-created interest that reaches beyond that guaranteed by the federal 14 Constitution, Section 1983 offers no redress.@ Id. 15 A. 16 To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted 17 under color of state law and (2) the defendant deprived him of rights secured by the 18 Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 19 2006). AA person >subjects= another to the deprivation of a constitutional right, within the 20 meaning of section 1983, if he does an affirmative act, participates in another=s affirmative acts, 21 or omits to perform an act which he is legally required to do that causes the deprivation of 22 which complaint is made.@ Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). AThe 23 requisite causal connection can be established not only by some kind of direct, personal 24 participation in the deprivation, but also by setting in motion a series of acts by others which 25 the actor knows or reasonably should know would cause others to inflict the constitutional 26 injury.@ Id. at 743-44). Personal Participation 27 In the Fourth Amended Complaint, Plaintiff fails to demonstrate that any of the 28 defendants personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 4 1 930, 934 (9th Cir. 2002) (emphasis added). Plaintiff fails to allege any action by a defendant 2 demonstrating that the defendant, through his or her own individual actions, violated Plaintiff=s 3 constitutional rights. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1948-49 (2009). Therefore, Plaintiff 4 fails to state a claim under § 1983 against any of the defendants. 5 B. Failure to Protect 6 The Eighth Amendment protects prisoners from inhumane methods of punishment and 7 from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th 8 Cir. 2006). Although prison conditions may be restrictive and harsh, prison officials must 9 provide prisoners with food, clothing, shelter, sanitation, medical care, and personal safety. 10 Farmer v. Brennan, 511 U.S. 825, 832-33, 114 S.Ct. 1970 (1994) (internal citations and 11 quotations omitted). Prison officials have a duty to take reasonable steps to protect inmates 12 from physical abuse. Farmer, 511 U.S. at 833; Hearns v. Terhune, 413 F.3d 1036, 1040 (9th 13 Cir. 2005). 14 To establish a violation of this duty, the prisoner must establish that prison officials 15 were Adeliberately indifferent to a serious threat to the inmates=s safety.@ Farmer, at 834. The 16 question under the Eighth Amendment is whether prison officials, acting with deliberate 17 indifference, exposed a prisoner to a sufficiently substantial >risk of serious damage to his 18 future health . . .=@ Id. at 843 (citing Helling v. McKinney, 509 U.S. 25, 35 (1993)). The 19 Supreme Court has explained that Adeliberate indifference entails something more than mere 20 negligence ... [but] something less than acts or omissions for the very purpose of causing harm 21 or with the knowledge that harm will result.@ Farmer at 835. The Court defined this Adeliberate 22 indifference@ standard as equal to Arecklessness,@ in which Aa person disregards a risk of harm 23 of which he is aware.@ Id. at 836-37. 24 The deliberate indifference standard involves both an objective and a subjective prong. 25 First, the alleged deprivation must be, in objective terms, Asufficiently serious.@ Id. at 834. 26 Second, subjectively, the prison official must Aknow of and disregard an excessive risk to 27 inmate health or safety.@ Id. at 837; Anderson v. County of Kern, 45 F.3d 1310, 1313 (9th Cir. 28 1995). To prove knowledge of the risk, however, the prisoner may rely on circumstantial 5 1 evidence; in fact, the very obviousness of the risk may be sufficient to establish knowledge. 2 Farmer, 511 U.S. at 842; Wallis v. Baldwin, 70 F.3d 1074, 1077 (9th Cir. 1995). 3 In the Fourth Amended Complaint, Plaintiff fails to allege facts showing that any 4 individual defendant deliberately acted, or failed to act, while disregarding a known excessive 5 risk of harm to Plaintiff. Therefore, the court finds that Plaintiff fails to state a failure to protect 6 claim against any of the defendants. Moreover, the court finds Plaintiff’s allegations to be 7 vague and conclusory, which are insufficient to state a claim. See Iqbal, 556 U.S. at 569-72. 8 V. CONCLUSION AND RECOMMENDATIONS 9 The Court finds that Plaintiff=s Fourth Amended Complaint fails to state any claims 10 upon which relief can be granted under ' 1983 against any of the defendants. In this action, the 11 Court previously granted Plaintiff leave to amend the complaint, with ample guidance by the 12 Court. 13 defendants which state a claim under ' 1983. The Court finds that the deficiencies outlined 14 above are not capable of being cured by amendment, and therefore further leave to amend 15 should not be granted. 28 U.S.C. ' 1915(e)(2)(B)(ii); Lopez v. Smith, 203 F.3d 1122, 1127 16 (9th Cir. 2000). Plaintiff has now filed five complaints without alleging facts against any of the 17 Therefore, IT IS HEREBY RECOMMENDED that pursuant to 28 U.S.C. ' 1915A 18 and 28 U.S.C. ' 1915(e), this action be dismissed with prejudice for failure to state a claim 19 upon which relief may be granted under ' 1983, and that this dismissal be subject to the Athree- 20 strikes@ provision set forth in 28 U.S.C. ' 1915(g). Silva v. Vittorio, 658 F.3d 1090, 1098 (9th 21 Cir. 2011). 22 These Findings and Recommendations will be submitted to the United States District 23 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within 24 thirty (30) days after being served with these Findings and Recommendations, Plaintiff may 25 file written objections with the court. The document should be captioned AObjections to 26 Magistrate Judge=s Findings and Recommendations.@ Plaintiff is advised that failure to file 27 /// 28 /// 6 1 objections within the specified time may waive the right to appeal the District Court=s order. 2 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 4 5 6 IT IS SO ORDERED. Dated: 7 8 9 November 18, 2013 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE DEAC_Signature-END: 6i0kij8d 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7
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