(PC) Anderson v. Kernan ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 HECTOR ANDERSON, Case No. 1:19-cv-0255-JLT (PC) 12 Plaintiff, ORDER DENYING AS MOOT PLAINTIFF’S MOTION TO ADD A DEFENDANT AND 13 v. MOTION TO STAND ON COMPLAINT; 14 SCOTT KERNAN, et al., ORDER DENYING PLAINTIFF’S MOTION 15 Defendants. FOR APPOINTMENT OF COUNSEL; 16 ORDER REQUIRING PLAINTIFF TO FILE A RESPONSE 17 18 (Docs. 1, 20, 21) 19 THIRTY-DAY DEADLINE 20 Plaintiff has filed complaint asserting constitutional claims against governmental employees 21 and/or entities.1 (Doc. 1.) Generally, the Court is required to screen complaints brought by inmates 22 seeking relief against a governmental entity or an officer or employee of a governmental entity. 28 23 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised 24 claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be 25 1 After plaintiff initiated this action, he filed two motions to amend the complaint, which the Court denied as moot 26 pursuant to Federal Rule of Civil Procedure 15(a). (See Docs. 12, 13, 15.) Since then, plaintiff filed a notice that he does not wish to amend his complaint followed by a motion to add one defendant (Warden Joel Martinez) but 27 otherwise leave the allegations of the original complaint intact. (See Docs. 18, 20.) Most recently, plaintiff filed a motion reiterating that he “’stands on his complaint’ against the named defendants. That no further amendment of 28 any nature is in order, nor given.” (Doc. 21.) In light of plaintiff’s most recent directive, the Court will screen the 1 granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 2 § 1915A(b)(1), (2). “Notwithstanding any filing fee, or any portion thereof, that may have been 3 paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal 4 . . . fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 5 I. Pleading Standard 6 A complaint must contain “a short and plain statement of the claim showing that the pleader 7 is entitled to relief . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 8 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 9 statements, do not suffice,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. 10 v. Twombly, 550 U.S. 544, 555 (2007)), and courts “are not required to indulge unwarranted 11 inferences,” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation 12 marks and citation omitted). While factual allegations are accepted as true, legal conclusions are 13 not. Iqbal, 556 U.S. at 678. 14 Prisoners may bring § 1983 claims against individuals acting “under color of state law.” See 15 42 U.S.C. § 1983, 28 U.S.C. § 1915(e) (2)(B)(ii). Under § 1983, Plaintiff must demonstrate that 16 each defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 17 930, 934 (9th Cir. 2002). This requires the presentation of factual allegations sufficient to state a 18 plausible claim for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 19 969 (9th Cir. 2009). Prisoners proceeding pro se in civil rights actions are entitled to have their 20 pleadings liberally construed and to have any doubt resolved in their favor, Hebbe v. Pliler, 627 21 F.3d 338, 342 (9th Cir. 2010) (citations omitted), but nevertheless, the mere possibility of 22 misconduct falls short of meeting the plausibility standard, Iqbal, 556 U.S. at 678; Moss, 572 F.3d 23 at 969. 24 II. Plaintiff’s Allegations 25 Plaintiff’s claims arose while he was incarcerated at Sierra Conservation Center (“SCC”) in 26 Jamestown, California. He brings this action against Scott Kernan, Secretary of the California 27 Department of Corrections and Rehabilitation and H. Anglea, Warden of SCC. Plaintiff sues both 28 defendants in their official and individual capacities. He seeks damages only. 1 Plaintiff’s allegations may be fairly summarized as follows: 2 On May 17, 2018, a large-scale riot involving over 300 inmates occurred at SCC. When the 3 alarm sounded, plaintiff immediately complied with procedures by getting down and staying down 4 until given permission to move. While he was down, however, some inmates attacked plaintiff 5 from behind, taking advantage of plaintiff’s defenseless position. As a result, plaintiff suffered 6 severe injuries. The riot was ultimately quelled using 11 OC Blast Grenades, 12 CN Grenades, 3 7 40mm Baton Rounds, 4 40mm Direct Impact Rounds, and multiple MK-9 OC deployments. In 8 addition, a state of emergency was announced in Tuolumne County because of the number of 9 emergency personnel that arrived at SCC to help quell the riot. 10 Plaintiff accuses the defendants of deliberate indifference to the safety of inmates based on 11 the repeated instances of mass riots at SCC, including one involving over 350 inmates in August 12 2017 and multiple riots in July and August 2018, one of which resulted in the death of an inmate. 13 Plaintiff also claims that SCC fails to employ enough guards such that often there are violent 14 incidents to which staff members take too long to respond. He blames the unsafe conditions at 15 SCC on “overcrowding, too much inmate movement, and not enough staff, escape routs [sic] or 16 safety zones….” 17 Secretary Kernan is named because he “is responsible for creating, approving, 18 implementing, enforcing, or in some other way possessing responsibility for the continued 19 operation of CDCR safety policies the directing of which holds him accountable for a 20 constitutional violation.” Compl. ⁋ 10. Warden Anglea is named because she “is responsible for 21 creating, approving, implementing, enforcing, or in some other way possessing responsibility for 22 the continued operation of facility safety policies the wardenry [sic] of which holds her accountable 23 for a constitutional deprivation.” Id. ⁋ 12. 24 III. Discussion 25 A. Official v. Individual Capacity Claims 26 In this damages action, plaintiff sues the defendants in their individual and official 27 capacities. But plaintiff may not bring a suit for damages against defendants in their official 28 capacities. “The Eleventh Amendment bars suits for money damages in federal court against a 1 state, its agencies, and state officials in their official capacities.” Aholelei v. Dept. of Public 2 Safety, 488 F.3d 1144, 1147 (9th Cir. 2007) (citations omitted). However, the Eleventh 3 Amendment does not bar suits seeking damages against state officials in their personal capacities, 4 Hafer v. Melo, 502 U.S. 21, 30 (1991); Porter v. Jones, 319 F.3d 483, 491 (9th Cir. 2003), or suits 5 for declaratory or injunctive relief brought against state officials in their official capacities, 6 Austin v. State Indus. Ins. System, 939 F.2d 676, 680 n.2 (9th Cir. 1991). Therefore, plaintiff fails 7 to state a claim for damages against defendants in their official capacities. 8 B. Eighth Amendment 9 a. Legal Standards 10 The Eighth Amendment requires prison officials to protect prisoners from violence at the 11 hands of other prisoners because “being violently assaulted in prison is simply not part of the 12 penalty that criminal offenders pay for their offenses against society.” Farmer v. Brennan, 511 13 U.S. 825, 833-34 (1970); Clem v. Lomeli, 566 F.3d 1177, 1181 (9th Cir. 2009). To prevail on a 14 failure-to-protect claim, a plaintiff must demonstrate facts that satisfy a two-part test: (1) that the 15 alleged deprivation was, objectively, sufficiently serious, and (2) that the official was, 16 subjectively, deliberately indifferent to the inmate’s safety or acted with “a sufficiently culpable 17 state of mind.” Id. at 834; Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000) (internal citation 18 omitted). 19 Under the objective prong, “[w]hat is necessary to show sufficient harm for the purposes 20 of the Cruel and Unusual Punishment Clause depends on the claim at issue.” Hudson v. 21 McMillian, 503 U.S. 1, 8 (1992). For a failure-to-protect claim, the prisoner must show that he 22 was placed in conditions that posed a substantial risk of serious harm. Farmer, 511 U.S. at 834, 23 quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991). 24 The subjective prong requires “more than ordinary lack of due care for the prisoner’s 25 interest or safety.” Farmer, 511 U.S. at 835 (quotation omitted). To prove deliberate 26 indifference, a plaintiff must show that the official knew of and disregarded an excessive risk to 27 inmate safety. Id. at 837. This standard “does not require that the ... official believe to a moral 28 certainty that one inmate intends to attack another at a given place at a time certain before that 1 officer is obligated to take steps to prevent such an assault,” but it does require that the official 2 “have more than a mere suspicion that the attack will occur.” Berg v. Kincheloe, 794 F.2d 457, 3 459 (9th Cir. 1986) (citation omitted). Also, “prison officials who actually knew of a substantial 4 risk to inmate health or safety may be found free from liability if they responded reasonably to 5 the risk, even if the harm ultimately was not averted.” Farmer, 511 U.S. at 844. 6 Additionally, “[i]n emergency circumstances, such as those that exist during a prison 7 uprising, where prison officials must weigh the competing institutional interests of ensuring the 8 safety of staff, visitors, and inmates, and where life-and-death decisions must be made quickly,” 9 prison officials’ actions and accompanying state of mind “should be measured against the 10 Whitely standard for an Eighth Amendment violation.” Johnson, 217 F.3d at 734. Under this 11 standard, whether injurious actions by prison officials violate the Eighth Amendment turns on 12 whether the actions were made “in a good faith effort to maintain or restore discipline or 13 maliciously and sadistically for the very purpose of causing harm.” Id. at 733 (quoting Whitely 14 v. Albers, 475 U.S. 312, 320-21 (1986)). As such, prison officials’ actions aimed at restoring 15 order during exigent circumstances do not violate the Eighth Amendment where the officials 16 “were motivated by the sorts of penological and safety concerns which are committed to the 17 sound discretion of prison officials and to which [courts] give considerable deference.” Johnson, 18 217 F.3d at 734. 19 Finally, a plaintiff alleging an Eighth Amendment violation must “demonstrate that the 20 defendants’ actions were both an actual and proximate cause of [his] injuries.” Lemire v. Cal. 21 Dep't of Corrs. and Rehab., 726 F.3d 1062, 1074 (9th Cir. 2013). “The requisite causal 22 connection can be established not only by some kind of direct personal participation in the 23 deprivation, but also by setting in motion a series of acts by others which the actor knows or 24 reasonably should know would cause others to inflict the constitutional injury.” Johnson v. 25 Duffy, 588 F.2d 740, 743–44 (9th Cir. 1978). 26 b. Analysis 27 Plaintiff’s allegations satisfy the objective prong of the Eighth Amendment. He alleges 28 that inmates at SCC are insufficiently protected in the face of recurring large-scale riots; that 1 there are an inadequate number of guards to deal with the violence at SCC; and that as a result, 2 plaintiff suffered severe injury. 3 As for the subjective prong, plaintiff names each of the defendants in his or her 4 supervisory capacity. “A defendant may be held liable as a supervisor under § 1983 if there exists 5 either (1) his or her personal involvement in the constitutional deprivation, or (2) a sufficient 6 causal connection between the supervisor’s wrongful conduct and the constitutional violation.” 7 Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (citation omitted). “A supervisor can be liable 8 in his individual capacity for his own culpable action or inaction in the training, supervision, or 9 control of his subordinates; for his acquiescence in the constitutional deprivation; or for conduct 10 that showed a reckless or callous indifference to the rights of others.” Id. at 1208 (quoting 11 Watkins v. City of Oakland, 145 F.3d 1087, 1093 (9th Cir. 1998)). Additionally, “[s]upervisory 12 liability exists even without overt personal participation in the offensive act if supervisory 13 officials implement a policy so deficient that the policy itself is a repudiation of constitutional 14 rights and is the moving force of the constitutional violation.” Redman v. Cty. San Diego, 942 15 F.2d 1435, 1446 (9th Cir. 1991), abrogated on other grounds by Farmer v. Brennan, 511 U.S. 825 16 (1994). 17 As noted, Warden Anglea is named because she “is responsible for creating, approving, 18 implementing, enforcing, or in some other way possessing responsibility for the continued 19 operation of facility safety policies the wardenry [sic] of which holds her accountable for a 20 constitutional deprivation.” Compl. ⁋ 12. Considering the large-scale riots and violent incidents at 21 SCC alleged by plaintiff, the Court will presume that this defendant, by virtue of her position, had 22 prior knowledge of the violence and the ability to implement changes or new policies that could 23 protect inmates. Her alleged failure to do so satisfies the subjective prong. 24 Plaintiff’s allegations as to Secretary Kernan are less clear. Plaintiff claims that this 25 defendant “is responsible for creating, approving, implementing, enforcing, or in some other way 26 possessing responsibility for the continued operation of CDCR safety policies the directing of 27 which holds him accountable for a constitutional violation.” Compl. ⁋ 10. But which “safety 28 policies” are at issue are not specified. It may be that plaintiff is challenging the alarm procedures 1 that require inmates to get down and stay down until given permission to move. Per plaintiff, this 2 policy exposed him to harm from other inmates, who took advantage of his defenseless position. 3 It may also be that plaintiff is challenging safety policies at SCC that relate to riots specifically 4 and overall inmate safety generally. Either way, the link between the defendant’s conduct and 5 plaintiff’s injury are less direct than with the previous defendant. There is no allegation, for 6 example, that Secretary Kernan was aware of injury to inmates based on the alarm policy and/or 7 that he was aware that safety policies at SCC were inadequate. Accordingly, plaintiff’s 8 allegations against Secretary Kernan fail to state a claim. 9 IV. Motion to Appoint Counsel 10 Plaintiff’s complaint includes a motion for the appointment of counsel. The United States 11 Supreme Court has ruled that district courts lack authority to require counsel to represent indigent 12 prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In 13 certain exceptional circumstances, the court may request the voluntary assistance of counsel 14 pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); 15 Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). In the present case, the court 16 does not find the required exceptional circumstances. Plaintiff’s request for the appointment of 17 counsel will therefore be denied. 18 V. Conclusion 19 Based on the foregoing, Plaintiff’s complaint states a cognizable Eighth Amendment claim 20 against Warden Anglea. No other claims are cognizable as pled. 21 The Court will grant plaintiff the opportunity to file an amended complaint to cure noted 22 defects, to the extent he believes in good faith he can do so. Noll v. Carlson, 809 F.2d 1446, 1448- 23 49 (9th Cir. 1987). Alternatively, plaintiff may forego amendment and notify the Court that he 24 wishes to stand on his complaint. See Edwards v. Marin Park, Inc., 356 F.3d 1058, 1064-65 (9th 25 Cir. 2004) (plaintiff may elect to forego amendment). 26 If plaintiff does not wish to file an amended complaint, and he is agreeable to proceeding 27 only on the claim found to be cognizable, he may file a notice informing the Court that he does 28 1 not intend to amend, and he is willing to proceed only on his cognizable claim. The undersigned 2 will then recommend that his remaining claims be dismissed. 3 If plaintiff chooses to amend, he must demonstrate that the alleged acts resulted in a 4 deprivation of his constitutional rights. Iqbal, 556 U.S. at 677-78. Plaintiff must set forth 5 “sufficient factual matter . . . to ‘state a claim that is plausible on its face.’” Id. at 678 (quoting 6 Twombly, 550 U.S. at 555). Plaintiff should note that although he has been given the opportunity 7 to amend, it is not for the purposes of adding new claims. George v. Smith, 507 F.3d 605, 607 (7th 8 Cir. 2007) (no “buckshot” complaints). Plaintiff should carefully read this screening order and 9 focus his efforts on curing the deficiencies set forth above. 10 If plaintiff files an amended complaint, it should be brief, Fed. R. Civ. P. 8(a), but it must 11 state what each named defendant did that led to the deprivation of plaintiff’s constitutional rights, 12 Iqbal, 556 U.S. at 676-677. Although accepted as true, the “[f]actual allegations must be 13 [sufficient] to raise a right to relief above the speculative level . . .” Twombly, 550 U.S. at 555 14 (citations omitted). Finally, an amended complaint supersedes the prior complaint, see Loux v. 15 Rhay, 375 F.2d 55, 57 (9th Cir. 1967), and it must be “complete in itself without reference to the 16 prior or superseded pleading,” Local Rule 220. 17 Accordingly, the Court ORDERS as follows: 18 1. Plaintiff’s motion to add a defendant (Doc. 20) and motion to stand on complaint 19 (Doc. 21) are DENIED as moot; 20 2. Plaintiff’s motion for appointment of counsel (Doc. 1) is DENIED; 21 3. The Clerk’s Office shall send plaintiff a blank civil rights complaint form; 22 4. Within 30 days from the date of service of this order, plaintiff must: 23 a. File an amended complaint curing the deficiencies identified by the Court in 24 this order, or 25 b. Notify the Court in writing that he does not wish to file an amended complaint 26 and he is willing to proceed only on the claim found to be cognizable in this 27 order; or 28 1 c. Notify the Court in writing that he wishes to stand on his complaint as written; 2 and 3 5. If plaintiff fails to comply with this order, the undersigned will recommend the action 4 be dismissed for failure to obey a court order and failure to prosecute. 5 IT IS SO ORDERED. 6 7 Dated: January 13, 2020 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28