Opinion
Case No. 1:15-cv-00350-JLT (PC)
11-12-2015
BRINT CLARK, Plaintiff, v. BRAZELTON, et al., Defendants.
ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND
(Docs. 15, 17)
30-DAY DEADLINE
I. Background
In the First Amended Complaint, Plaintiff again alleges causes of action against several correctional officers of the California Department of Corrections and Rehabilitation at Pleasant Valley State Prison for improperly identifying him as a member of the Black Gorilla Family gang when, in fact, he is a member of the Crips gang. (Doc. 17.) The Court finds the First Amended Complaint fails to state a claim and DISMISSES it with leave to amend.
The filing of the First Amended Complaint resolved the order to show cause that issued when Plaintiff failed to file it within the granted extension of time. (Doc. 15.)
A. Screening Requirement
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally frivolous, malicious, fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2); 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).
Section 1983 "provides a cause of action for the deprivation of any rights, privileges, or immunities secured by the Constitution and laws of the United States." Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989).
To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated and (2) that the alleged violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty, 811 F.2d 1243, 1245 (9th Cir. 1987).
B. Summary of Plaintiff's Complaint
Though he is now housed at California Correctional Institute , Plaintiff complains of acts that occurred while he was housed at Pleasant Valley State Prison. Plaintiff names the following four Defendants in this action: PVSP Warden, PD Brazelton; Lieutenants A. Shimmin and Duty; Sergeant A. Avila; and Correctional Officer M. Seese. Plaintiff seeks monetary and declaratory relief.
Plaintiff identifies two Causes of Action/Claims: (1) violation of the Eighth Amendment's prohibition of cruel and unusual punishment (excessive force); and (2) violation of his rights to due process under the Fourteenth Amendment. These claims appear premised on Plaintiff's claim that prison officials erroneously identified him as a member of the Black Gorilla Family when he is actually a member of the Crips gang.
As discussed in further detail below, the First Amended Complaint fails to state a cognizable claim against any of the named defendants. Plaintiff may be able to state cognizable claims and is being given one last opportunity to correct his pleading deficiencies by filing a second amended complaint which must be 20 pages or less. To assist Plaintiff's efforts, the Court is providing him here the applicable pleading requirements and legal standards that apply to the claims he has identified.
C. Pleading Requirements
1. Federal Rule of Civil Procedure 8(a)
"Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions," none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002); Fed. R. Civ. Pro. 8(a). A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. Pro. 8(a). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512.
Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 556 U.S. at 678, quoting Twombly, 550 U.S. at 555. Factual allegations are accepted as true, but legal conclusions are not. Iqbal. at 678; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009); Twombly, 550 U.S. at 556-557.
While "plaintiffs [now] face a higher burden of pleadings facts . . . ," Al-Kidd v. Ashcroft, 580 F.3d 949, 977 (9th Cir. 2009), the pleadings of pro se prisoners are still construed liberally and are afforded the benefit of any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). However, "the liberal pleading standard . . . applies only to a plaintiff's factual allegations," Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989), "a liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled," Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982), and courts are not required to indulge unwarranted inferences, Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). The "sheer possibility that a defendant has acted unlawfully" is not sufficient, and "facts that are 'merely consistent with' a defendant's liability" fall short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949; Moss, 572 F.3d at 969.
As discussed in greater detail below, Plaintiff's First Amended Complaint is a bit too brief as he fails to link the Defendants to his allegations and to give sufficient description of the events underlying his claim to discern which Defendant he feels engaged in what activities that amounted to a violation of his rights. His second amended complaint must state which of his constitutional rights he feels were violated by each Defendant and its factual basis, and he must do so in no more than 20 pages.
2. Linkage Requirement
Plaintiff seeks to proceed under the Civil Rights Act. The Act provides:
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.42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by Plaintiff. See Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). The Ninth Circuit has held that "[a] person 'subjects' another to the deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). In order to state a claim for relief under section 1983, Plaintiff must link each named defendant with some affirmative act or omission that demonstrates a violation of Plaintiff's federal rights.
The only defendant named in Plaintiff's allegations is Officer Seese. Other than that, Plaintiff generally refers to "Defendants," which is insufficient to place any of the Defendants on notice as to what he claims they did--or failed to do—that Plaintiff feels amounted to a violation of his federal rights. Plaintiff must clearly state which Defendant(s) he feels are responsible for each violation of his constitutional rights and their factual basis as his Complaint must put each Defendant on notice of Plaintiff's claims against him or her. See Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004).
D. Claims for Relief
1. Eighth Amendment
"The treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment." Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970 (1994) (citing Helling v. McKinney, 509 U.S. 25, 31 (1993). Prison officials have a duty "to take reasonable measures to guarantee the safety of inmates, which has been interpreted to include a duty to protect prisoners." Labatad v. Corrections Corp. of America, 714 F.3d 1155, 1160 (citing Farmer, 511 U.S. at 832-33; Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005)).
To establish a violation of this duty, the prisoner must "show that the officials acted with deliberate indifference to threat of serious harm or injury to an inmate." Labatad, at 1160 (citing Gibson v. County of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002). This involves both objective and subjective components.
Objectively, the alleged deprivation must be "sufficiently serious" and where a failure to prevent harm is alleged, "the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm." Id. at 834, quoting Rhodes v. Chapman, 452 U.S. 337, 349, 101 S.Ct. 2392 (1981). Subjectively, the prison official must "know of and disregard an excessive risk to inmate health or safety." Id. at 837; Anderson v. County of Kern, 45 F.3d 1310, 1313 (9th Cir. 1995). A prison official must "be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and . . . must also draw the inference." Farmer, 511 U.S. at 837, 114 S.Ct. 1970. Liability may follow only if a prison official "knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it." Id. at 847, 114 S.Ct. 1970.
Further, the Supreme Court has stated that a remedy for unsafe conditions need not await a tragic event; rather, where a risk/injury has yet to occur, the plaintiff's burden would be to prove that his future health/safety is unreasonably endangered, "that it is contrary to current standards of decency for anyone to be so exposed against his will, and that prison officials are deliberately indifferent to his plight." Helling, 509 U.S. at 33-35.
The question under the Eighth Amendment is whether prison officials, acting with deliberate indifference, exposed a prisoner to a sufficiently substantial "risk of serious damage to his future health . . . ." Farmer, at 843 (citing Helling, 509 U.S. at 35). The Supreme Court has explained that "deliberate indifference entails something more than mere negligence . . . [but] something less than acts or omissions for the very purpose of causing harm or with the knowledge that harm will result." Id., at 835. The Court defined this "deliberate indifference" standard as equal to "recklessness," in which "a person disregards a risk of harm of which he is aware." Id., at 836-37.
Being incorrectly identified as a prison gang member carries a sufficiently serious risk of serious harm from violence at the hands of other prison gang members. However, Plaintiff's allegations fail to support which Defendant knew he was not a member of the Black Gorilla Family when they housed him with that gang, which Defendant knew that he was, instead, a member of the Crips gang, and to which Defendant he complained about being placed with the wrong gang. His allegations must, but do not, state what each Defendant knew about his placement with the Black Gorilla Family and the allegations must support that each Defendant acted with deliberate indifference to a substantial risk of serious harm to Plaintiff.
2. Fourteenth Amendment -- Due Process
Plaintiff's allegations under his Due Process claim are exceedingly sparse and vague. The Court is unable to distinguish whether Plaintiff is complaining that his due process rights were violated in a hearing that resulted in his placement with the wrong prison gang, or if he is complaining of the actions of supervisors in ruling on and/or processing his inmate appeals when the incident occurred.
a. Gang Validation
The Due Process Clause protects prisoners from being deprived of liberty without due process of law. Wilkinson v. Austin, 545 U.S. 209, 221 (2005). The Due Process Clause itself does not confer on inmates a liberty interest in being confined in the general prison population instead of segregation. See Hewitt v. Helms, 459 U.S. 460, 466-68 (1983) (overruled on other grounds by Sadin v. Conner, 515 U.S. 472 (1995)). Liberty interests created by state law are limited to freedom from restraint which "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin, 515 U.S. at 484.
Prisoners may be housed in Administrative Segregation to protect them from other inmates, to protect other inmates from the segregated prisoner, or pending investigation of disciplinary charges, transfer, or classification. Hewitt, 459 U.S. at 468. Thus, the initial placement of Plaintiff in Ad-Seg (see Doc. 34, 1stAC, 11:18-21) for investigation of gang validation does not rise to the level of a cognizable claim for violation of Plaintiff's rights to due process.
The assignment of gang members to the Security Housing Unit is an administrative measure rather than disciplinary and is "essentially a matter of administrative discretion." Bruce v. Ylst, 351 F.3d 1283, 1287 (9th Cir.2003) (quoting Munoz v. Rowland, 104 F.3d 1096, 1098 (9th Cir.1997)). Under California State Regulations, prison officials house an inmate routinely in administrative segregation pending review of his gang status and if validated as a gang member, the inmate may be assessed an indeterminate term in the Secured Housing Unit. 15 Cal.Code Regs. § 3378. When determining whether a prisoner is to be segregated for administrative reasons, due process only requires: (1) an informal non-adversary hearing within a reasonable time after the prisoner is segregated; (2) that the prisoner be informed of the charges or reasons for considering segregation; and (3) the prisoner must be allowed to present his views. Bruce, 351 F.3d at 1287 (citing Toussaint v. McCarthy, 801 F.2d 1080, 1099 (9th Cir.1986), abrogated in part on other grounds by Sandin v. Connor, 515 U.S. 472 (1995)). Thereafter, prison officials must periodically review the initial placement. See Hewitt, 459 U.S. at 477, n.9; Toussaint, 801 F.2d at 1101. Annual review of the placement is insufficient, but a court may not impose a 90-day review period where prison officials have suggested a 120-day review period. Toussaint, 926 F.2d at 803.
In his response (ECF No. 39) to the Order to Show Cause (ECF No. 38) why this action should not be dismissed as barred by Heck v. Humphry, 512 U.S. 477 (1994) Plaintiff asserted that this cause of action is controlled by Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001). However, Devereaux identifies a clearly established constitutional due process right not to be subjected to criminal charges on the basis of false evidence that was deliberately fabricated by the government. Since gang validation is an administrative measure, Devereaux is inapplicable to this case.
Further, where the basis for the administrative segregation is challenged and an inmate has been given " 'some notice of the charges against him and an opportunity to present his views to the prison official charged with deciding whether to transfer him to administrative segregation,' the relevant issue is whether there was 'some evidence' to support [the] validation." Bruce, 351 F.3d at 1287, quoting Toussaint, 801 F.2d at 1099.
b. Inmate Appeals
"[I]nmates lack a separate constitutional entitlement to a specific prison grievance procedure." Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (no liberty interest in processing of appeals because no entitlement to a specific grievance procedure), citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). "[A prison] grievance procedure is a procedural right only, it does not confer any substantive right upon the inmates." Azeez v. DeRobertis, 568 F. Supp. 8, 10 (N.D. Ill. 1982) accord Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993); see also Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 2001) (existence of grievance procedure confers no liberty interest on prisoner). "Hence, it does not give rise to a protected liberty interest requiring the procedural protections envisioned by the Fourteenth Amendment." Azeez v. DeRobertis, 568 F. Supp. at 10; Spencer v. Moore, 638 F. Supp. 315, 316 (E.D. Mo. 1986).
Actions in reviewing prisoner's administrative appeal cannot serve as the basis for liability under a § 1983 action. Buckley, 997 F.2d at 495. The argument that anyone who knows about a violation of the Constitution, and fails to cure it, has violated the Constitution himself is not correct. "Only persons who cause or participate in the violations are responsible. Ruling against a prisoner on an administrative complaint does not cause or contribute to the violation." Greeno v. Daley, 414 F.3d 645, 656-57 (7th Cir.2005) accord George v. Smith, 507 F.3d 605, 609-10 (7th Cir. 2007); Reed v. McBride, 178 F.3d 849, 851-52 (7th Cir.1999); Vance v. Peters, 97 F.3d 987, 992-93 (7th Cir.1996). Thus, since he has neither a liberty interest, nor a substantive right in inmate appeals, Plaintiff is unable to state a cognizable claim merely for the processing and/or reviewing of his 602 inmate appeals.
3. Supervisory Liability
Supervisory personnel are generally not liable under section 1983 for the actions of their employees under a theory of respondeat superior and, therefore, when a named defendant holds a supervisory position, the causal link between him and the claimed constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978), cert. denied, 442 U.S. 941 (1979). To state a claim for relief under section 1983 based on a theory of supervisory liability, Plaintiff must allege some facts that would support a claim that supervisory defendants either: personally participated in the alleged deprivation of constitutional rights; knew of the violations and failed to act to prevent them; or promulgated or "implemented a policy so deficient that the policy 'itself is a repudiation of constitutional rights' and is 'the moving force of the constitutional violation.'" Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989) (internal citations omitted); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Under section 1983, liability may not be imposed on supervisory personnel for the actions of their employees under a theory of respondeat superior. Iqbal, 556 U.S. at 677. "In a § 1983 suit or a Bivens action - where masters do not answer for the torts of their servants - the term 'supervisory liability' is a misnomer." Id. Knowledge and acquiescence of a subordinate's misconduct is insufficient to establish liability; each government official is only liable for his or her own misconduct. Id.
"'[B]are assertions . . . amount[ing] to nothing more than a "formulaic recitation of the elements" of a constitutional discrimination claim,' for the purposes of ruling on a motion to dismiss [and thus also for screening purposes], are not entitled to an assumption of truth." Moss, 572 F.3d at 969 (quoting Iqbal, 556 U.S. at 1951 (quoting Twombly, 550 U.S. at 555)). "Such allegations are not to be discounted because they are 'unrealistic or nonsensical,' but rather because they do nothing more than state a legal conclusion - even if that conclusion is cast in the form of a factual allegation." Id. Thus, allegations that supervisors—including Sergeant Avila or Lieutenants Shimmin and Duty—are somehow liable because their subordinates violated Plaintiff's rights are not cognizable.
a. Supervisory Liability via Inmate Appeals
In addition to that discussed in the immediately preceding section, "a plaintiff must show the supervisor breached a duty to plaintiff which was the proximate cause of the injury. The law clearly allows actions against supervisors under section 1983 as long as a sufficient causal connection is present and the plaintiff was deprived under color of law of a federally secured right." Redman v. County of San Diego, 942 F.2d 1435, 1447 (9th Cir. 1991)(internal quotation marks omitted)(abrogated on other grounds by Farmer v. Brennan, 511 U.S. 825 (1994).
"The requisite causal connection can be established . . . by setting in motion a series of acts by others," id. (alteration in original; internal quotation marks omitted), or by "knowingly refus[ing] to terminate a series of acts by others, which [the supervisor] knew or reasonably should have known would cause others to inflict a constitutional injury," Dubner v. City & Cnty. of San Francisco, 266 F.3d 959, 968 (9th Cir.2001). "A supervisor can be liable in his individual capacity for his own culpable action or inaction in the training, supervision, or control of his subordinates; for his acquiescence in the constitutional deprivation; or for conduct that showed a reckless or callous indifference to the rights of others." Watkins v. City of Oakland, 145 F.3d 1087, 1093 (9th Cir.1998) (internal alteration and quotation marks omitted).
Plaintiff may intend his allegations to allege that by reviewing Plaintiff's IAs on this issue, various of the Defendants knew that he was placed with the wrong gang in deliberate indifference of a substantial risk of serious harm. If so, a plaintiff may "state a claim against a supervisor for deliberate indifference based upon the supervisor's knowledge of and acquiescence in unconstitutional conduct by his or her subordinates," Starr v. Baca, 652 F.3d 1202, 1207 (2011), which may be shown via the inmate appeals process where the supervisor reviewed Plaintiff's applicable inmate appeal and failed to take corrective action which allowed the violation to continue.
II. CONCLUSION
For the reasons set forth above, the First Amended Complaint is DISMISSED, with leave to file a second amended complaint within thirty days. If Plaintiff needs an extension of time to comply with this order, he must file a motion seeking an extension of time no later than thirty days from the date of service of this order.
Plaintiff must demonstrate in any first amended complaint how the conditions complained of have resulted in a deprivation of Plaintiff's constitutional rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The second amended complaint must allege in specific terms how each named defendant is involved. There can be no liability under section 1983 unless there is some affirmative link or connection between a defendant's actions and the claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
Plaintiff's second amended complaint should be brief. Fed. R. Civ. P. 8(a). Such a short and plain statement must "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) quoting Conley v. Gibson, 355 U.S. 41, 47 (1957). Although accepted as true, the "[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level . . . ." Twombly, 550 U.S. 127, 555 (2007) (citations omitted).
Plaintiff is further advised that an amended complaint supercedes the original, Lacey v. Maricopa County, Nos. 09-15806, 09-15703, 2012 WL 3711591, at *1 n.1 (9th Cir. Aug. 29, 2012) (en banc), and must be "complete in itself without reference to the prior or superceded pleading," Local Rule 220.
The Court provides Plaintiff with opportunity to amend to cure the deficiencies identified in this order. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff may not change the nature of this suit by adding new, unrelated claims in his second amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no "buckshot" complaints). His second amended complaint must not exceed 20 pages in length.
Based on the foregoing, the Court ORDERS:
1. The First Amended Complaint is DISMISSED, with leave to amend;
2. The Clerk's Office shall send Plaintiff a civil rights complaint form;
3. Within 30 days from the date of service of this order, Plaintiff must file a second amended complaint curing the deficiencies identified by the Court in this order; and
4. If Plaintiff fails to comply with this order, the Court will dismiss this action based upon Plaintiff's failure to obey a court order and for his failure to state a claim. IT IS SO ORDERED.
Dated: November 12 , 2015
/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE