Opinion
2:08-cv-01658-HDM (DAD).
June 16, 2009
ORDER
Plaintiff is a state prisoner proceeding pro se in this action. He seeks relief pursuant to 42 U.S.C. § 1983 and has requested authority to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
I. In Forma Pauperis Application
Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). (#5) Accordingly, the request to proceed in forma pauperis is granted.
Plaintiff is required to pay the statutory filing fee of $350.00 for his application. 28 U.S.C. § 1914(a), 1915(b)(1). Plaintiff wrote two letters to this court, dated March 2, 2009 and March 15, 2009, requesting that a friend pay the entire filing fee amount directly to the court. In an order dated April 2, 2009, this court advised the plaintiff that "pursuant 28 U.S.C. § 1914(a) the total in forma pauperis application fee is $350. Plaintiff owes the full amount. Any such amount should be paid directly to the clerk of court with certification made that the payment is on plaintiff's behalf and is to be applied to the filing fee." (#10) As instructed, a payment of $200 was made toward the filing fee on plaintiff's behalf. (#11) The remaining $150 balance is forthcoming. (#11) If the remainder is not paid by Thursday, July 30, 2009, the court will direct the California Department of Corrections to collect the remaining fee owed from plaintiff's prison trust account.
II. Relief Pursuant 42 U.S.C. § 1983
This court is required to screen complaints brought by prisoners seeking relief against a governmental entity, officer, or employee of a governmental entity. 28 U.S.C. § 1915A(a). This court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that 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) and (2), 1915(e)(2).
A claim is legally frivolous when it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). Therefore, a court may dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Id. at 327.
Dismissal of a complaint for failure to state a claim upon which relief may be granted is provided for in Federal Rule of Civil Procedure 12(b)(6). The court applies the same standard under Section 1915(e)(2) when reviewing the adequacy of a complaint or amended complaint. Such review is a ruling on a question of law. See Chappel v. Lab. Corp. of Am., 232 F.3d 719, 723 (9th Cir. 2000). Dismissal for failure to state a claim is proper only if it is clear that the plaintiff cannot prove any set of facts in support of the claim that would entitle him or her to relief. See Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999). In making this determination, the court takes as true all allegations of material fact stated in the complaint, and construes them in the light most favorable to the plaintiff. See Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th Cir. 1996). Allegations in a pro se complaint are held to a less stringent standard than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
III. Plaintiff's Claims
Plaintiff is a California state prisoner, housed at New Folsom California State Prison in Sacramento, California. On March 17, 2007, plaintiff was assaulted by three other inmates during the "P.M. (Evening) Day-Room" activities in an enclosed maximum security mental health unit with approximately twenty other inmates present. A minimum of two prison officers supervise the unit from a control tower. At least one officer must be present at the post at all times.
Plaintiff alleges he was attacked twice over a twenty-minute period. The first assault lasted two minutes. The second assault occurred approximately five minutes after the first and lasted between fifteen and twenty minutes, during which plaintiff lost consciousness. According to plaintiff, prison staff failed to intervene during the attacks and failed to respond promptly afterward. Plaintiff claims that corrections officers delayed coming to his aid until after the conclusion of the day-room activities.
Plaintiff sustained several severe injuries from the assault including a mandibular fracture, a compound tibula fracture, nasal fracture, orbital fracture, the loss of two teeth (one which was ingested into plaintiff's lung), permanent brain damage, and extensive psychological trauma including post traumatic stress disorder. Plaintiff received medical treatment for his injuries, but some of his injuries are permanent. Administrative action was taken against plaintiff's three inmate-assailants.
Plaintiff names seven defendants in his complaint: Snowden, Seaton, Larios, Compton, Engellemer, S. Vance, and John/Jane Doe. Plaintiff alleges the defendants violated his Eighth Amendment rights by acting with deliberate indifference to plaintiff's health and safety, which resulted in the March 17, 2007 attack on plaintiff. Plaintiff seeks punitive and compensatory damages in the amount of $1,000,000, or what the court may deem just and proper.
All defendants are employed at New Folsom Prison. Defendants Snowden, Seaton, Larios, and Compton are corrections officers at the prison. Defendant Engellemer is a corrections sergeant. Defendant S. Vance is a corrections captain. Defendant John/Jane Doe is a corrections lieutenant. All defendants are being sued in their individual capacities and are persons for purposes of § 1983. See Hafer v. Melo, 502 U.S. 21, 31 (1991); Porter v. Jones, 319 F.3d 483, 491 (9th Cir. 2003); DeNieva v. Reyes, 966 F.2d 480, 483 (9th Cir. 1992). Prison officials and corrections officers are not entitled to absolute immunity. See Procunier v. Navarette, 434 U.S. 555, 561 (1978). In addition, in cases involving claims of deliberate indifference to a prisoner being attacked by another prisoner, defendant guards are denied qualified immunity. Rider v. Louw, 957 F. Supp. 983 (E.D.Mich. 1997). Thus, all defendants are subject to monetary damages.
Plaintiff's specific allegations as to each defendant are as follows. Plaintiff alleges defendant Snowden was aware plaintiff's assailants were planning to attack an inmate during the day-room activities on March 17, 2007. Plaintiff also alleges defendant Snowden was aware of prior attacks on other inmates by two of plaintiff's assailants, but failed to report those attacks. Plaintiff claims that defendant Snowden knew unit staff relied on his reporting of any acts of violence or assaultive behavior that would impact the security in the unit. Finally, plaintiff claims defendant Snowden was the officer assigned to the control tower on March 17, 2007. Plaintiff alleges that at no time did defendant Snowden intervene or act to protect plaintiff during the attacks.
Plaintiff alleges defendant Seaton was a unit floor officer present during the previous attack by plaintiff's assailants on another inmate, but did not report that attack. Plaintiff also alleges defendant Seaton was the unit floor officer on duty during the day-room activities on March 17, 2007, but did not intervene to protect plaintiff when he was attacked.
Plaintiff alleges defendant Larios was also present as a unit floor officer on the day he was assaulted, but failed to monitor the unit properly and did not intervene to protect plaintiff.
Plaintiff alleges defendant John/Jane Doe was aware the control tower was short-staffed on March 17, 2007. Plaintiff also alleges defendant Doe was aware that one of plaintiff's assailants was improperly housed in the mental health unit and posed a security risk to the other inmates in the unit.
Plaintiff alleges that defendant S. Vance was also aware that one of plaintiff's assailants should not have been allowed to interact with inmates in the mental health unit. Plaintiff also alleges defendant Vance knew that one of plaintiff's assailants was planning to assault another inmate on March 17, 2007. Finally, plaintiff alleges defendant Vance knew, or should have known, there would be only one officer posted in the control tower during the P.M. day-room activities on March 17, 2007.
Plaintiff alleges defendant Compton was present in the unit when plaintiff was attacked and stole $250.00 worth of his personal property after the attack. In addition, plaintiff alleges defendant Compton knew of at least two prior assaults by one of plaintiff's assailants on other inmates, and of at least one assault by two of plaintiff's assailants on another inmate that occurred prior to plaintiff's attack on March 17, 2007. Plaintiff alleges defendant Compton failed to properly report or investigate these other assaults, thus subjecting inmates in the unit to an increased risk of harm.
Lastly, plaintiff alleges defendant Engellemer, who was the supervising sergeant of the unit on March 17, 2007, attempted to interview the assailants about their plans to attack another inmate prior to the assault on plaintiff and guaranteed the assailants would not be put into administrative segregation if they consented to be interviewed. This, according to plaintiff, facilitated the attack on him on March 17, 2007. In addition, plaintiff alleges defendant Engellemer knew one of his assailants should not have been allowed to interact with plaintiff and the other inmates in the mental health unit. Finally, plaintiff alleges defendant Engellemer knew the control tower for the unit would be short-staffed during the P.M. day-room activities on March 17, 2007, thus, lowering security on the unit.
IV. Analysis of Plaintiff's Claims
The Eighth Amendment requires prison officials take reasonable measures to guarantee the safety of prisoners, including protection from violence at the hands of other prisoners. Farmer v. Brennan, 511 U.S. 825, 833 (1994). However, not "every injury suffered by one prisoner at the hands of another . . . translates into constitutional liability for prison officials." Id. at 834. In order to establish an Eighth Amendment claim for failure to protect, an inmate must show: (1) that his incarceration posed a "substantial risk of serious harm," and (2) that prison officials acted with "deliberate indifference" towards him by disregarding an "excessive risk to [his] health or safety." Id. Thus, merely failing to exercise due care in failing to prevent an assault by other prisoners will not suffice. Id. at 835, 837; see also Davidson v. Cannon, 474 U.S. 344, 345-48 (1986) (finding that prison officials' negligent failure to heed prisoner's notification of threats from another inmate, followed by an assault, is not a deprivation of constitutional rights); see also Schwartz v. County of Montgomery, 843 F. Supp. 962 (E.D.Pa.), aff'd, 37 F.3d 1488 (3d Cir. 1994) (stating that corrections officers' failure to observe institutional policies regarding the supervision of dangerous inmates constitutes negligence, which cannot support a § 1983 action for violation of the Eighth or Fourteenth Amendments).
Still, while "threats between inmates are common and do not, under all circumstances, serve to impute actual knowledge of a substantial risk of harm," a plaintiff who alleges additional reasons for prison officials to be concerned, such as previous incidents between assailant and plaintiff, any history of assailant attacking other inmates, or cause for retaliation by assailant against plaintiff, may be sufficient to establish prison officials knew of a substantial risk of harm. See Perkins v. Grimes, 161 F.3d 1127, 1130 (8th Cir. 1998); Prater v. Dahm, 89 F.3d 538, 541-2 (8th Cir. 1996). In addition, "a prison official [cannot] escape liability for deliberate indifference by showing that, while he was aware of an obvious, substantial risk to inmate safety, he did not know that the complainant was especially likely to be assaulted by the specific prisoner who eventually committed the assault." Farmer, 511 U.S. at 843. "[I]t does not matter whether the risk comes from a single source or multiple sources, any more than it matters whether a prisoner faces an excessive risk of attack for reasons personal to him or because all prisoners in his situation face such a risk." Id. Thus, a defendant may be held criminally liable for injury to an unanticipated victim. Id. at 844; see also State v. Julius, 185 W.Va. 422, 431-2, 408 S.E.2d 1, 10-11 (1991).
Further, a "correctional officer's presence at an attack of an inmate, where he does nothing to stop an assault, may be sufficient to establish a claim under Section 1983." Williams v. Russo, 2009 WL 185758, *3 (W.D.N.Y. 2009).
Finally, personal participation is an essential allegation in a Section 1983 claim. Leer v. Murphy, 844 F.2d 628, 633-34 (9th Cir. 1988). "A defendant in a civil rights action must have personal involvement in the alleged wrongs, liability cannot be predicated solely on the operation of respondent superior. Personal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence." Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). However, it is the prison officials who must "prove that they were unaware even of an obvious risk to inmate health and safety." Farmer, 511 U.S. at 844.
Accordingly, plaintiff has stated a claim against defendants Snowden, Seaton, Larios, Vance, and Compton. Defendants Snowden, Seaton, Largos, and Compton were present when plaintiff was attacked and allegedly failed to intervene over a 20 minute period. In addition, plaintiff has alleged these defendants were aware of the substantial risk plaintiff's three assailants posed to other unit inmates' health and safety, even though they may not have known the assailants would attack plaintiff specifically. A corrections officer cannot escape liability for deliberate indifference if he was aware of an obvious, substantial risk to inmate safety, even though he did not know that the plaintiff was especially likely to be assaulted by the specific prisoner or prisoners who eventually committed the assault. Farmer, 511 U.S. at 843. Defendant Vance, although not alleged to be present when plaintiff was attacked, is alleged to have knowledge of additional reasons to be concerned about inmate safety, such as the assailants' plans to attack another inmate, the improper housing of one of plaintiff's assailants, and the insufficient staffing of the unit during the P.M. day-room activities in May 17, 2007. Plaintiff alleges defendant Vance failed to act on this knowledge. This may be sufficient to establish defendant Vance knew of a substantial risk of harm, that defendant Vance ignored. See Perkins, 161 F.3d at 1130; Prater, 89 F.3d at 541-2.
However, plaintiff has failed to state a claim against defendant Engellemer. Under the Eighth Amendment, it is a prison official's duty to ensure "reasonable safety." Farmer, 511 U.S. at 845. This standard "incorporates due regard for prison officials' `unenviable task of keeping dangerous men in safe custody under humane conditions.'" Id. (citing Spain v. Procunier, 600 F.2d 189, 193 (CA9 1979) (Kennedy, J.)); see also Bell v. Wolfish, 441 U.S. 520, 547-8. Thus, "prison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably to the risk, even if the harm was not averted." Id. at 844. As alleged by plaintiff, defendant Engellemer's response to the potential risk to inmate health and safety posed by plaintiff's assailants was reasonable. Defendant Engellemer was responsive to inmate concerns for safety — he interviewed the assailants about their plans to attack another inmate in order to verify a generalized threat (a threat that was not specific to plaintiff). The Supreme Court has held that less responsive action by a prison official falls short of deliberate indifference. Davidson v. Cannon, 474 U.S. 327, 106 S. Ct. 662, 88 L.Ed.2d 662 (1986) (A prison guard's failure to read a note passed by an inmate regarding threats to inmate's safety by other prisoners and failure to notify other officers of the threat does not constitute deliberate indifference, even when inmate was subsequently attacked and suffered severe injuries. Mere negligence or lack of due care is not cognizable under Section 1983.); see also Demaio v. Coughlin, 1994 WL 714537, 1994 U.S. Dist. LEXIS 18391 (W.D.N.Y. Dec. 8, 1994) (fact that prisoner and others for him called or wrote to commissioner of corrections protesting prisoner's transfer to another institution and advising that prisoner had "enemies" there, failed to establish that commissioner knew of a specific risk of harm). A defendant's awareness of a possibility of attack does not constitute deliberate indifference. See Ruefly v. Landon, 825 F.2d 792, 794 (4th Cir. 1987).
Plaintiff has also failed to state a claim against defendant Doe. Defendant Doe is an unknown defendant. In addition, plaintiff cannot proceed against defendant Doe only on allegations that defendant Doe failed to observe institutional policies regarding the supervision of inmates. Schwartz, 843 F. Supp. 962 (E.D.Pa.), aff'd, 37 F.3d 1488 (3d Cir. 1994).
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's request to proceed in forma pauperis is granted;
2. Plaintiff is obligated to pay the entire statutory filing fee of $350.00 for this action, as instructed by this court in its order dated April 2, 2009. A balance of $150.00 remains to be paid. The balance shall be paid by Thursday, July 30, 2009. If it is not, the remaining fee owed will be collected from plaintiff's prison trust account.
3. Plaintiff's claims against defendants Engellemer and Doe are dismissed for the reasons discussed above, with leave to file an amended complaint within thirty days from the date of service of this order. Failure to file an amended complaint will result in dismissal of defendant Engellemer and Doe from this action.
4. Upon filing an amended complaint or expiration of the time allowed therefor, the court will make further orders for service of process upon some or all of the defendants.