(PC) Flores v. Diaz ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MARCIANO FLORES, 1:19-cv-01357-AWI-GSA-PC 12 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE BE 13 v. DISMISSED, WITH PREJUDICE, FOR PLAINTIFF’S FAILURE TO STATE A 14 RALPH DIAZ, et al., CLAIM (ECF No. 11.) 15 Defendants. OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN (14) DAYS 16 17 18 I. BACKGROUND 19 Marciano Flores (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 20 with this civil rights action pursuant to 42 U.S.C. § 1983. On September 26, 2019, Plaintiff filed 21 the Complaint commencing this action. (ECF No. 1.) On February 3, 2020, the court screened 22 the Complaint and dismissed it for failure to state a claim, with leave to amend. (ECF No. 11.) 23 On February 27, 2020, Plaintiff filed the First Amended Complaint which is now before the court 24 for screening. (ECF No. 12.) 28 U.S.C. § 1915A. 25 II. SCREENING REQUIREMENT 26 The court is required to screen complaints brought by prisoners seeking relief against a 27 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 28 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 1 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 2 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 3 “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall 4 dismiss the case at any time if the court determines that the action or appeal fails to state a claim 5 upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 6 Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited 7 exceptions, none of which apply to § 1983 actions. Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 8 512 (2002). Under federal notice pleading, a complaint is required to contain “a short and plain 9 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). 10 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause 11 of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 12 662, 678 (2009) (citing Bell Atlantic v. Twombly, 550 U.S. 444, 555 (2007). While a plaintiff’s 13 allegations are taken as true, courts “are not required to indulge unwarranted inferences.” Doe I 14 v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation 15 omitted). To state a viable claim, Plaintiff must set forth “sufficient factual matter, accepted as 16 true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678-79; Moss v. 17 U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls 18 short of meeting this plausibility standard. Id. 19 III. SUMMARY OF FIRST AMENDED COMPLAINT 20 Plaintiff is currently incarcerated at the California City Correctional Facility in California 21 City, California. The events in the First Amended Complaint allegedly occurred when Plaintiff 22 was incarcerated at Avenal State Prison in Avenal, California, in the custody of the California 23 Department of Corrections and Rehabilitation (CDCR). Plaintiff names as defendants Ralph 24 Diaz (CDCR Secretary), Kathleen Allison (Director of Adult Institutions, CDCR) and Rosemary 25 Ndoh (Warden, Avenal State Prison) (collectively, “Defendants”). 26 Plaintiff’s allegations follow: 27 On December 12, 2017, defendant Allison authored a department memorandum which 28 announced the expansion of the merger of the SNY (Sensitive Needs Yard, previously called 1 Protective Custody) prisoners with the General Population (GP) prisoners in all level 1 and level 2 2 yards. On July 19, 2018, the Inmate Representatives at Avenal State Prison submitted a group 3 statement to defendant Ndoh voicing their concerns and disagreement with the proposed merger. 4 On September 10, 2018, defendant Diaz authored a department memorandum which set forth the 5 schedule for merger of the yards. 6 Plaintiff claims that it has been long understood by both the courts and CDCR officials 7 that SNY prisoners cannot safely merge with GP prisoners. Each and every time these mergers 8 have taken place intentionally or unintentionally, there have been well documented incidents of 9 violence. This is so whether the SNY prisoners attacked and assaulted the GP prisoners out of 10 fear for their lives, or were attacked and assaulted themselves by GP prisoners. This planned 11 merger would place Plaintiff at serious risk of harm or injury, in violation to his right to be 12 protected from violence. Plaintiff alleges that Defendants are well aware of and are completely 13 disregarding such an excessive risk to Plaintiff’s health and safety. Defendants are being sued 14 both in their individual and official capacities. 15 Plaintiff seeks only injunctive relief. Plaintiff requests that Defendants be prohibited 16 from merging SNY and GP prisoners together, and that the person in charge of housing inmates 17 stop sending GP prisoners to non-designated programming facilities. 18 IV. PLAINTIFF’S CLAIMS 19 The Civil Rights Act under which this action was filed provides: 20 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to 21 be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities 22 secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . . 23 24 42 U.S.C. § 1983. “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely 25 provides ‘a method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490 26 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see also 27 Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los Angeles, 28 1 697 F.3d 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 2012); 2 Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). 3 To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted 4 under color of state law and (2) the defendant deprived him of rights secured by the Constitution 5 or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); see also 6 Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing “under color of 7 state law”). A person deprives another of a constitutional right, “within the meaning of § 1983, 8 ‘if he does an affirmative act, participates in another’s affirmative act, or omits to perform an act 9 which he is legally required to do that causes the deprivation of which complaint is made.’” 10 Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting 11 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite causal connection may be 12 established when an official sets in motion a ‘series of acts by others which the actor knows or 13 reasonably should know would cause others to inflict’ constitutional harms.” Preschooler II, 479 14 F.3d at 1183 (quoting Johnson, 588 F.2d at 743). This standard of causation “closely resembles 15 the standard ‘foreseeability’ formulation of proximate cause.” Arnold v. Int’l Bus. Mach. Corp., 16 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City of Los Angeles, 533 F.3d 1010, 17 1026 (9th Cir. 2008). 18 A. Official Capacity 19 Plaintiff brings this action against Defendants in their official and individual capacities. 20 “Suits against state officials in their official capacity . . . should be treated as suits against the 21 State.” Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991); Holley v. Cal. 22 Dept. of Corr., 599 F.3d 1108, 1111 (9th Cir. 2010) (treating prisoner’s suit against state officials 23 in their official capacities as a suit against the state of California). An official-capacity suit 24 “represent[s] only another way of pleading an action against an entity of which an officer is an 25 agent.” Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) (quoting 26 Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 n.55, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) ). 27 Such a suit “is not a suit against the official personally, for the real party in interest is the entity.” 28 Graham, 473 U.S. at 166, 105 S.Ct. 3099. 1 A claim for prospective injunctive relief against a state official in his or her official 2 capacity is not barred by the Eleventh Amendment provided the official has authority to 3 implement the requested relief. Will v. Michigan Dept. of State Police, 491 U.S. 58, 92, 109 4 S.Ct. 2304, 105 L.Ed.2d 45 (1989). “A plaintiff seeking injunctive relief against the State is not 5 required to allege a named official’s personal involvement in the acts or omissions constituting 6 the alleged constitutional violation.” Hartmann v. California Dep’t of Corr. & Rehab., 707 F.3d 7 1114, 1127 (9th Cir. 2013) (citing Hafer, 502 U.S. at 25, 112 S.Ct. 358; Graham, 473 U.S. at 8 166, 105 S.Ct. 3099); see also Rouser v. White, 707 F.Supp.2d 1055, 1066 (E.D. Cal. 2010) 9 (proper defendant for injunctive relief in suit seeking implementation of CDCR policy is the 10 CDCR Secretary in his official capacity). Instead, Plaintiff need only identify the law or policy 11 challenged as a constitutional violation and name the official or officials within the entity who is 12 or are alleged to have a “fairly direct” connection with the enforcement of that policy, see Holmes 13 v. Estock, No. 3:16-CV-02458-MMA-BLM, 2018 WL 5840043, at *4 (S.D. Cal. Nov. 8, 2018) 14 (quoting Ex parte Young, 209 U.S. 123, 157, 28 S.Ct. 441, 52 L.Ed. 714 (1908) ), and can 15 appropriately respond to injunctive relief. Hartmann, 707 F.3d at 1127 (citing Los Angeles Cnty. 16 v. Humphries, 526 U.S. 29, 35-37, 39; Hafer, 502 U.S. at 25, 112 S.Ct. 358); Colwell, 763 F.3d 17 at 1071; McQueen v. Brown, No. 2:15-CV-2544-JAM-AC P, 2018 WL 1875631, at *4 (E.D. 18 Cal. Apr. 19, 2018), report and recommendation adopted, No. 2:15-CV-2544-JAM-AC P, 2018 19 WL 2441713 (E.D. Cal. May 31, 2018). 20 B. Failure to Protect – Eighth Amendment Claim 21 The Eighth Amendment protects prisoners from inhumane methods of punishment and 22 from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 23 2006). Although prison conditions may be restrictive and harsh, prison officials must provide 24 prisoners with food, clothing, shelter, sanitation, medical care, and personal safety. Farmer v. 25 Brennan, 511 U.S. 825, 832-33 (1994) (internal citations and quotations omitted). Prison 26 officials have a duty to take reasonable steps to protect inmates from physical abuse. Id. at 833; 27 Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005). The failure of prison officials to protect 28 inmates from attacks by other inmates may rise to the level of an Eighth Amendment violation 1 where prison officials know of and disregard a substantial risk of serious harm to the plaintiff. 2 E.g., Farmer, 511 U.S. at 847; Hearns, 413 F.3d at 1040. 3 To establish a violation of this duty, the prisoner must establish that prison officials were 4 “deliberately indifferent to a serious threat to the inmate’s safety.” Farmer, 511 U.S. at 834. The 5 question under the Eighth Amendment is whether prison officials, acting with deliberate 6 indifference, exposed a prisoner to a sufficiently “substantial risk of serious harm” to his future 7 health. Id. at 843 (citing Helling v. McKinney, 509 U.S. 25, 35 (1993)). The Supreme Court has 8 explained that “deliberate indifference entails something more than mere negligence . . . [but] 9 something less than acts or omissions for the very purpose of causing harm or with the knowledge 10 that harm will result.” Farmer, 511 U.S. at 835. The Court defined this “deliberate indifference” 11 standard as equal to “recklessness,” in which “a person disregards a risk of harm of which he is 12 aware.” Id. at 836-37. 13 The deliberate indifference standard involves both an objective and a subjective prong. 14 First, the alleged deprivation must be, in objective terms, “sufficiently serious.” Id. at 834. 15 Second, subjectively, the prison official must “know of and disregard an excessive risk to inmate 16 health or safety.” Id. at 837; Anderson v. County of Kern, 45 F.3d 1310, 1313 (9th Cir. 1995). 17 To prove knowledge of the risk, however, the prisoner may rely on circumstantial evidence; in 18 fact, the very obviousness of the risk may be sufficient to establish knowledge. Farmer, 511 U.S. 19 at 842; Wallis v. Baldwin, 70 F.3d 1074, 1077 (9th Cir. 1995). 20 “When a supervisory official advances or manages a policy that instructs its adherents to 21 violate constitutional rights, then the official specifically intends for such violations to occur [and 22 c]laims against such supervisory officials, therefore, do not fail on the state of mind requirement, 23 be it intent, knowledge, or deliberate indifference. OSU Student All. v. Ray, 699 F.3d 1053, 1076 24 (9th Cir. 2012); accord Crowley v. Bannister, 734 F.3d 967, 977 (9th Cir. 2013.) 25 Here, Plaintiff has not shown that his possible placement on a yard where SNY inmates 26 and GP inmates are merged together is a sufficiently serious threat to his safety. Although there 27 are situations where a Plaintiff does not need to wait until he is actually assaulted to state a claim 28 and obtain relief, a prisoner is required to demonstrate that he faces a specific and non-speculative 1 danger of injury. Plaintiff has not alleged that the policy was actually implemented at Avenal 2 State Prison, nor that he was housed on a merged yard, nor has Plaintiff shown that he would 3 face an excessive risk of harm if he were placed on a merged yard. Plaintiff’s statement that “[i]t 4 has been long understood by both the Courts and CDCR officials that SNY prisoners cannot 5 safely merge with General Population prisoners” is conclusory and lacks any factual basis. (ECF 6 No. 12 at 3-4.) 7 Plaintiff has not alleged that he has any known enemies, or that he was threatened with 8 an assault by any person or group that would have been housed at the Avenal State Prison merged 9 yard where Plaintiff would have been housed. Nunez, 1:19-cv-00686-AWI-SAB, ECF No. 1 at 10 3 ¶ 3. Plaintiff has not alleged any facts demonstrating that any of the Defendants knew of and 11 disregarded a non-speculative risk to his health or safety. Berg v. Kincheloe, 794 F.2d 457, 459 12 (9th Cir. 1986) (“The [deliberate indifference] standard does not require that the guard or official 13 believe to a moral certainty that one inmate intends to attack another at a given place at a time 14 certain before that officer is obligated to take steps to prevent such an assault. But, on the other 15 hand, he must have more than a mere suspicion that an attack will occur.”). 16 Therefore, Plaintiff fails to state a claim against any of the Defendants for failure to 17 protect him under the Eighth Amendment. 18 C. Constitutional Challenge to Policy Itself 19 1. Facial Challenge 20 A constitutional challenge to a policy is “‘facial’ [if] it is not limited to plaintiff[’s] 21 particular case, but challenges application of the law more broadly. . . .” See Nunez, 1:19-cv- 22 00686-AWI-SAB, ECF No. 16 at 7 (quoting John Doe No. 1 v. Reed, 561 U.S. 186, 194 (2010)). 23 Facial challenges are disfavored. Id. (citing Wash. State Grange v. Wash. State Republican Party, 24 552 U.S. 442, 450 (2008)). “A facial challenge to a [policy] is, of course, the most difficult 25 challenge to mount successfully, since the challenger must establish that no set of circumstances 26 exists under which the [policy] would be valid. The fact that the [policy] might operate 27 unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly 28 invalid[.]” Id. (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)). 1 Here, Plaintiff has not alleged any facts demonstrating that implementation of the merger 2 policy would always violate the Eighth Amendment, no matter which SNY or GP inmates or 3 which level 1 or 2 prison yards the policy was applied to. Id. Since Plaintiff has not included 4 allegations that the policy would be unconstitutional as applied in all situations, Plaintiff has not 5 pled a cognizable claim against defendants Diaz, Allison, and Ndoh based on facial invalidity of 6 the merger policy under the Eighth Amendment. Id. 7 2. As Applied Challenge 8 “‘[A] [policy] . . . may be held constitutionally invalid as applied when it operates to 9 deprive an individual of a protected right although its general validity as a measure enacted in 10 the legitimate exercise of state power is beyond question.’” Id. (quoting Little v. Streater, 452 11 U.S. 1, 16 (1981) (quoting Boddie v. Connecticut, 401 U.S. 371, 379 (1971)). Thus, to support 12 an “as applied” challenge, Plaintiff must show that his individual circumstances make the general 13 application of the merger policy unconstitutional. Id. (citing see Doe v. United States, 419 F.3d 14 1056, 1063 (9th Cir. 2005)). 15 Here, Plaintiff alleges that the implementation of the policy at Avenal State Prison would 16 place him at serious risk of harm or injury, in violation of his right to be protected from violence, 17 and that defendants Diaz, Allison, and Ndoh are well aware of, and are completely disregarding, 18 such an excessive risk to Plaintiff’s health or safety. However, as discussed above, Plaintiff has 19 not alleged any facts to support his conclusory allegation that implementation of the merger 20 policy would place him at serious risk of harm or injury. Plaintiff’s allegation that defendants 21 Diaz, Allison, and Ndoh are well aware of, and are completely disregarding the excessive risk to 22 Plaintiff’s health and safety is a conclusory statement unsupported by any facts. Plaintiff has 23 not alleged facts showing that he told defendants Diaz, Allison, and/or Ndoh, or that each of the 24 Defendants was aware, of a nonspeculative, specific risk to Plaintiff’s health and safety. See id. 25 Accordingly, Plaintiff has not pled a cognizable claim against defendants Diaz, Allison, 26 and Ndoh that, as applied to Plaintiff, the merger policy is invalid under the Eighth Amendment. 27 D. Injunctive Relief 28 1 Plaintiff only requests injunctive relief. Plaintiff is precluded from an award of 2 injunctive relief from any of the Defendants because Plaintiff is no longer housed at Avenal State 3 Prison. Plaintiff requests that Defendants be prohibited from merging SNY and GP prisoners 4 together, and that the person in charge of housing inmates stop sending GP prisoners to non- 5 designated programming facilities. If an inmate is seeking injunctive relief with respect to 6 conditions of confinement, the prisoner’s transfer to another prison renders the request for 7 injunctive relief moot, unless there is some evidence of an expectation of being transferred back. 8 See Prieser v. Newkirk, 422 U.S. 395, 402-03 (1975); Johnson v. Moore, 948 F.3d 517, 519 (9th 9 Cir. 1991) (per curiam). On September 16, 2019, Plaintiff filed a notice of change of address, 10 notifying the court that he had been transferred from Avenal State Prison to the California City 11 Correctional Facility. (ECF No. 4.) There are no allegations demonstrating that Plaintiff has a 12 reasonable expectation of returning to Avenal State Prison. Therefore, Plaintiff’s claims for 13 injunctive relief are moot. 14 V. CONCLUSION Based on the foregoing, the court finds that Plaintiff fails to state a cognizable claim 15 against any of the Defendants for violating his constitutional or other federal rights. Under Rule 16 15(a) of the Federal Rules of Civil Procedure, “[t]he court should freely give leave to amend 17 when justice so requires.” Here, the court previously granted Plaintiff leave to amend the 18 complaint with ample guidance by the court, and Plaintiff has not stated any claims upon which 19 relief may be granted under § 1983. The court is persuaded that Plaintiff is unable to allege any 20 facts, based upon the circumstances he challenges, that would state a cognizable claim. “A 21 district court may deny leave to amend when amendment would be futile.” Hartmann v. CDCR, 22 707 F.3d 1114, 1130 (9th Cir. 2013). The court finds that the deficiencies outlined above are not 23 capable of being cured by amendment, and therefore further leave to amend should not be 24 granted. 28 U.S.C. § 1915(e)(2)(B)(ii); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). 25 Therefore, based on the foregoing, IT IS HEREBY RECOMMENDED that: 26 1. This case be DISMISSED, with prejudice, for failure to state a claim upon which 27 relief may be granted under § 1983; and 28 1 2. The Clerk be directed to CLOSE this case. 2 These findings and recommendations will be submitted to the United States District Judge 3 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 4 of the date of service of these findings and recommendations, Plaintiff may file written objections 5 with the court. The document should be captioned “Objections to Magistrate Judge’s Findings 6 and Recommendations.” Plaintiff is advised that failure to file objections within the specified 7 time may result in waiver of the right to appeal the district court’s order. Wilkerson v. Wheeler, 8 772 F.3d 834, 839 (9th Cir. Nov. 18, 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th 9 Cir. 1991)). 10 IT IS SO ORDERED. 11 12 Dated: September 2, 2020 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28