(PC) Lopez v. North Kern State Prison et al, No. 1:2016cv00881 - Document 10 (E.D. Cal. 2017)
Court Description: ORDER Directing Clerk of Court to Randomly Assign District Judge; FINDINGS and RECOMMENDATIONS to Dismiss Certain Claims and Defendants re 9 , signed by Magistrate Judge Barbara A. McAuliffe on 12/20/17. Referred to Judge Drozd. Objections to F&R Due Within Fourteen Days. Case is assigned to District Judge Dale A. Drozd and Magistrate Judge Barbara A. McAuliffe. The New Case No. is: 1:16-cv-0881-DAD-BAM. (Gonzalez, R)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RODRIGO LOPEZ, 12 13 14 Plaintiff, v. NORTH KERN STATE PRISON, et al., 15 Defendants. Case No. 1:16-cv-00881-BAM (PC) ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT JUDGE FINDINGS AND RECOMMENDATIONS TO DISMISS CERTAIN CLAIMS AND DEFENDANTS 16 (ECF No. 9) 17 FOURTEEN-DAY DEADLINE 18 19 Plaintiff Rodrigo Lopez (“Plaintiff”) is a state prisoner proceeding pro se and in forma 20 pauperis in this civil rights action under 42 U.S.C. § 1983. Plaintiff initiated this action on June 21 22, 2016. (ECF No. 1.) On April 14, 2017, the Court screened Plaintiff’s complaint and found 22 that it stated a cognizable claim against Defendant McDermott for failure to intervene in violation 23 of the Eighth Amendment, but failed to state any other claims. The Court directed Plaintiff to 24 either file a first amended complaint or notify the Court that he was willing to proceed only on the 25 cognizable claims. (ECF No. 6.) Plaintiff’s first amended complaint, filed on May 24, 2017, is 26 currently before the Court for screening. (ECF No. 9.) 27 I. Screening Requirement and Standard 28 The Court is required to screen complaints brought by prisoners seeking relief against a 1 1 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. 2 § 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous 3 or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary 4 relief from a defendant who is immune from such relief. 5 1915(e)(2)(B)(ii). 28 U.S.C. §§ 1915A(b); 6 A complaint must contain “a short and plain statement of the claim showing that the 7 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 8 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 9 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 10 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken 11 as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, 12 Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 13 To survive screening, Plaintiff’s claims must be facially plausible, which requires 14 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable 15 for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. 16 Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted 17 unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the 18 plausibility standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969. Plaintiff’s Allegations 19 II. 20 Plaintiff is currently incarcerated at Valley State Prison in Chowchilla, California. The 21 events in the complaint are alleged to have occurred while Plaintiff was incarcerated at North 22 Kern State Prison (“NKSP”) in Delano, California. Plaintiff names the following defendants: (1) 23 Scott Kernan, Secretary, California Department of Corrections and Rehabilitation (“CDCR”); (2) 24 Warden Sandy Pennywell; and (3) Correctional Officer J. McDermott. 25 Plaintiff alleges as follows: Defendant McDermott knowingly and deliberately placed 26 Plaintiff, a non-gang member, in a two-man cell with Inmate Cancel, a known gang member. On 27 June 26, 2014, Inmate Cancel attacked Plaintiff, without provocation and any fault on Plaintiff’s 28 part, causing Plaintiff to suffer a broken nose, broken hip/leg, multiple bruises, contusions, and 2 1 severe injuries requiring several surgeries and ongoing medical treatment. The attack occurred 2 when Plaintiff asked Inmate Cancel to remove an air vent cover that Inmate Cancel had installed. 3 Inmate Cancel told Plaintiff that he ran things in their cell and that he and his gang ran things in 4 the prison. Inmate Cancel then attacked Plaintiff without warning. This attack lasted about four 5 to five hours, during which time Plaintiff did not receive help from the prison guards despite 6 yelling for help. 7 A disciplinary hearing was held at NKSP regarding this incident, where Plaintiff was 8 found not guilty of fighting or any other rule violation. Defendant McDermott was the floor 9 officer that stopped the beating, but lied on his report, stating the Plaintiff and Inmate Cancel 10 were striking each other with fists in the facial and upper torso area and that he gave a verbal 11 warning to get down. Plaintiff alleges that Defendant McDermott was a short distance away, 12 making it virtually impossible for him not to hear the attack, but chose to do nothing. Plaintiff 13 asserts that, on the day before the incident in question, Defendant McDermott had allowed a 14 different gang-affiliated inmate into another cell to fight, and Defendant McDermott was a short 15 distance away and did nothing to stop it. 16 As a result of the attack, Plaintiff alleges that his hip was fractured, that he could not stand 17 up without help, that he was in a lot of pain due to bone fractures, and that he had no upper 18 strength to fight back. Plaintiff needed emergency surgery for a broken nose and fractured hip. 19 Plaintiff also sustained two black eyes, a swollen face, busted lip, and bleeding and bruising all 20 over his body. 21 approximately every twelve to fifteen years from the date of his initial surgery. Plaintiff states 22 that he has had ongoing medical problems as a result of his injuries. Following his hip 23 replacement, Plaintiff’s left leg is now shorter than his right, he walks with a limp, and he is now 24 permanently disabled. Plaintiff asserts that he is traumatized by this incident, and that he fears 25 being attacked again for no reason. Plaintiff required a hip replacement, which will require future surgeries 26 Plaintiff further alleges that Defendant Kernan, the Secretary of the CDCR, was 27 responsible for initiating rule, regulations, training and policies for all CDCR prisons and 28 supervising and training all CDCR personnel subordinate to him. 3 Plaintiff contends that 1 Defendant Kernan ultimately provided, allowed or promulgated policies and practices that 2 allowed CDCR personnel to willingly fail to respond to Plaintiff’s need for protection from an 3 attack. Plaintiff asserts that Defendant Kernan and his subordinates failed to protect Plaintiff 4 from attack by a known gang member. 5 Plaintiff also alleges that Defendant Pennywell was the warden at NKSP, and she too was 6 responsible for the care, safety, and welfare of all inmates of CDCR. Defendant Pennywell failed 7 to protect Plaintiff while in CDCR’s care, and her policies allowed a known gang member to 8 attack a non-gang member. 9 10 Plaintiff seeks compensatory and punitive damages, along with declaratory and injunctive relief. 11 III. Discussion 12 A. Supervisory Liability – Warden Pennywell and Secretary Kernan 13 Liability may not be imposed on supervisory personnel for the actions or omissions of 14 their subordinates under the theory of respondeat superior. Iqbal, 556 U.S. at 676–77; Simmons 15 v. Navajo Cty., Ariz., 609 F.3d 1011, 1020–21 (9th Cir. 2010); Ewing v. City of Stockton, 588 16 F.3d 1218, 1235 (9th Cir. 2009); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). 17 Supervisors may be held liable only if they “participated in or directed the violations, or knew of 18 the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 19 1989); accord Starr v. Baca, 652 F.3d 1202, 1205–06 (9th Cir. 2011); Corales v. Bennett, 567 20 F.3d 554, 570 (9th Cir. 2009). Thus, a supervisor’s participation can include his “own culpable 21 action or inaction in the training, supervision, or control of his subordinates,” “his acquiescence in 22 the constitutional deprivations of which the complaint is made,” or “conduct that showed a 23 reckless or callous indifference to the rights of others.” Starr, 652 F.3d at 1205–06. Supervisory 24 officials “cannot be held liable unless they themselves” violated a constitutional right. Iqbal, 556 25 U.S. at 676. 26 Plaintiff’s general allegations that Defendants Kernan and Pennywell were responsible for 27 instituting policies and regulations, training subordinates and ensuring the welfare of all inmates 28 of the CDCR are insufficient to state a claim. Plaintiff’s allegations relate only to Defendant 4 1 Kernan and Pennywell’s supervisory roles. Plaintiff has not alleged facts showing that Defendant 2 Kernan or Defendant Pennywell instituted a policy that caused Plaintiff’s alleged injuries, that 3 Defendant Kernan or Defendant Pennywell participated in or directed the alleged violations, or 4 that Defendant Kernan or Defendant Pennywell knew of the alleged violations and failed to 5 prevent them. Despite being provided with the relevant pleading standard regarding supervisory 6 liability, Plaintiff has been unable to adequately state a claim against supervisory personnel. The 7 Court will therefore recommend that Defendants Kernan and Pennywell be dismissed from this 8 action. 9 B. Eighth Amendment – Failure to Protect 10 “The Eighth Amendment’s prohibition against cruel and unusual punishment protects 11 prisoners not only from inhumane methods of punishment but also from inhumane conditions of 12 confinement.” Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). Prison officials 13 therefore have a “duty to ensure that prisoners are provided adequate shelter, food, clothing, 14 sanitation, medical care, and personal safety.” Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 15 2000) (citations omitted). A prison official is liable under the Eighth Amendment only if the 16 official “knows of and disregards an excessive risk to inmate health or safety; the official must 17 both be aware of facts from which the inference could be drawn that a substantial risk of serious 18 harm exists, and [the official] must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 19 837 (1994). 20 Plaintiff has not alleged facts establishing that Defendant McDermott was aware of a 21 substantial risk of serious harm to Plaintiff when he was placed in the same cell as Inmate Cancel, 22 and that Defendant McDermott disregarded that risk. Even if Defendant McDermott knew that 23 Inmate Cancel was a gang member, Plaintiff does not allege that Defendant McDermott knew that 24 Plaintiff was at risk of attack because he was a non-gang member. In fact, Plaintiff alleges that 25 Inmate Cancel stated he attacked Plaintiff without thinking, which suggests that Defendant 26 McDermott could not have known that Plaintiff was at risk. 27 Plaintiff also alleges that as a non-gang member, he should never have been housed with 28 Inmate Cancel. However, Plaintiff’s allegations do not indicate that Defendant McDermott was 5 1 aware of any specific threat to Plaintiff’s safety or well-being. Further, Plaintiff’s allegations 2 concerning the impropriety of gang members being housed with non-gang members fails to state 3 a claim for failure to protect. See Hoptowit v. Ray, 682 F.2d 1237, 1256 (9th Cir. 1982), 4 abrogated on other grounds by Sandin v. Conner, 515 U.S. 472 (1995) (“[M]isclassification does 5 not itself inflict pain within the meaning of the Eighth Amendment.”) Indeed, even housing 6 inmates of opposing gangs in the same cell, without more, fails to state a claim under the Eighth 7 Amendment. See Labatad v. Corrections Corp. of America, 714 F.3d 1155, 1161 (9th Cir. 2013) 8 As a result, Plaintiff fails to state a claim for failure to protect in violation of the Eighth 9 Amendment against Defendant McDermott regarding Plaintiff being housed with Inmate Cancel. 10 C. Eighth Amendment – Failure to Intervene 11 Prison officials are required “to take reasonable steps to protect inmates from physical 12 abuse.” Hoptowit, 682 F.2d at 1250. “[A] prison official can violate a prisoner’s Eighth 13 Amendment rights by failing to intervene.” Robins v. Meecham, 60 F.3d 1436, 1442 (9th Cir. 14 1995). 15 Plaintiff alleges that Defendant McDermott was a short distance away from the cell during 16 the fight, Plaintiff yelled for hours for help, and Defendant McDermott knew that Plaintiff and 17 Inmate Cancel were fighting and did nothing to stop it until hours later. The Court finds that 18 Plaintiff has stated a cognizable Eighth Amendment claim for failure to intervene against 19 Defendant McDermott. 20 D. False Report – Defendant McDermott 21 Plaintiff also alleges that Defendant McDermott lied on his report regarding the incident. 22 False incident reports alone are not actionable under § 1983, because filing a false report does not 23 violate a right secured by the Constitution or laws of the United States. See Sandin, 515 U.S. at 24 484 (holding that inmate’s liberty interest is generally infringed only by an “atypical and 25 significant hardship in relation to the ordinary incidents of prison life”). A falsified incident 26 report, leading to a finding of not guilty and apparently no disciplinary consequences for Plaintiff, 27 is not severe enough to amount to a deprivation of a protected liberty interest under Sandin. 28 Specifically, Defendant McDermott’s alleged lies on the incident report do not impose an atypical 6 1 and significant hardship or inevitably affect the duration of Plaintiff’s confinement, and thus do 2 not state a claim under § 1983. See Smith v. Mensinger, 293 F.3d 641, 653–54 (3d Cir. 2002) (no 3 § 1983 claim was stated for allegedly false charges because the disciplinary confinement imposed 4 was too short to amount to an atypical and significant hardship under Sandin). Plaintiff has been 5 unable to cure this deficiency despite an opportunity to amend his complaint. 6 E. Declaratory Relief 7 Plaintiff seeks a declaration that his rights were violated by defendants. “A declaratory 8 judgment, like other forms of equitable relief, should be granted only as a matter of judicial 9 discretion, exercised in the public interest.” Eccles v. Peoples Bank of Lakewood Village, 333 10 U.S. 426, 431 (1948). “Declaratory relief should be denied when it will neither serve a useful 11 purpose in clarifying and settling the legal relations in issue nor terminate the proceedings and 12 afford relief from the uncertainty and controversy faced by the parties.” United States v. 13 Washington, 759 F.2d 1353, 1357 (9th Cir. 1985). 14 In the event that this action reaches trial and the trier of fact returns a verdict in favor of 15 Plaintiff, the verdict will be a finding that Plaintiff's constitutional rights were violated. 16 Accordingly, a declaration that a defendant violated Plaintiff's rights is unnecessary, and the 17 Court will recommend that Plaintiff’s request for declaratory relief be denied. 18 F. Injunctive Relief 19 Plaintiff seeks several forms of injunctive relief. However, Plaintiff is no longer housed at 20 NKSP, where he alleges the incidents at issue occurred, and where Defendant McDermott is 21 employed. Therefore, any injunctive relief he seeks against officials at NKSP is moot. See 22 Andrews v. Cervantes, 493 F.3d 1047, 1053 n.5 (9th Cir. 2007) (prisoner’s claims for injunctive 23 relief generally become moot upon transfer) (citing Johnson v. Moore, 948 F.2d 517, 519 (9th 24 Cir. 1991) (per curiam) (holding claims for injunctive relief “relating to [a prison’s] policies are 25 moot” when the prisoner has been moved and “he has demonstrated no reasonable expectation of 26 returning to [the prison]”)). The Court will therefore recommend that Plaintiff’s request for 27 injunctive relief be denied. 28 /// 7 1 IV. 2 The Court finds that Plaintiff has stated a cognizable Eighth Amendment claim against 3 Defendant McDermott for the failure to intervene while Inmate Cancel was attacking Plaintiff. 4 However, Plaintiff has failed to state any other cognizable claims. Despite being provided with 5 the relevant legal and pleading standards, Plaintiff has been unable to cure the remaining 6 deficiencies in his complaint, and further leave to amend is not warranted. Lopez v. Smith, 203 7 F.3d 1122, 1130 (9th Cir. 2000). 8 9 Conclusion and Recommendation Accordingly, the Clerk of the Court is HEREBY DIRECTED to randomly assign a district judge to this action. 10 Further, it is HEREBY RECOMMENDED as follows: 11 1. This action proceed on Plaintiff’s Eighth Amendment claim against Defendant 12 McDermott for the failure to intervene while Inmate Cancel was attacking Plaintiff as 13 set forth in Plaintiff’s first amended complaint filed on May 24, 2017; 14 2. Plaintiff’s request for injunctive and declaratory relief be denied; and 15 3. All other claims and defendants be dismissed from this action. 16 These Findings and Recommendations will be submitted to the United States District 17 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within 18 fourteen (14) days after being served with these Findings and Recommendations, Plaintiff may 19 file written objections with the Court. The document should be captioned “Objections to 20 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 21 objections within the specified time may result in the waiver of the “right to challenge the 22 magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) 23 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). IT IS SO ORDERED. 24 25 Dated: /s/ Barbara December 20, 2017 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 26 27 28 8
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