Legardy v. Redon ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 EUREKA DIVISION 7 8 RONALD LEGARDY, Case No. 20-cv-05716-RMI 9 Plaintiff, ORDER OF DISMISSAL WITH LEAVE 10 v. TO AMEND 11 M.B. ATCHLEY, et al., 12 Defendants. 13 14 Plaintiff, a state prisoner, filed a pro se civil rights complaint under 42 U.S.C. § 1983. He 15 has been granted leave to proceed in forma pauperis and he has consented to the jurisdiction of a 16 Magistrate Judge. 17 DISCUSSION 18 Standard of Review 19 Federal courts must engage in a preliminary screening of cases in which prisoners seek 20 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 21 1915A(a). In its review the court must identify any cognizable claims, and dismiss any claims 22 which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek 23 monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1)-(2). Pro se 24 pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th 25 Cir. 1990). 26 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 27 claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Specific facts are not 1 grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted). 2 Although a complaint “does not need detailed factual allegations . . . a plaintiff's obligation to 3 provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and 4 a formulaic recitation of the elements of a cause of action will not do . . . Factual allegations must 5 be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 6 550 U.S. 544, 555 (2007) (citations omitted). A complaint must proffer “enough facts to state a 7 claim to relief that is plausible on its face.” Id. at 570. The United States Supreme Court has 8 recently explained the “plausible on its face” standard of Twombly: “While legal conclusions can 9 provide the framework of a complaint, they must be supported by factual allegations. When there 10 are well-pleaded factual allegations, a court should assume their veracity and then determine 11 whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 12 (2009). 13 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) 14 that a right secured by the Constitution or laws of the United States was violated, and (2) that the 15 alleged deprivation was committed by a person acting under the color of state law. West v. Atkins, 16 487 U.S. 42, 48 (1988). 17 Legal Claims 18 Plaintiff alleges that defendants failed to protect him from sexual assaults by his cellmate. 19 The Eighth Amendment requires that prison officials take reasonable measures to guarantee the 20 safety of prisoners. Farmer v. Brennan, 511 U.S. 825, 832 (1994). In particular, prison officials 21 have a duty to protect prisoners from violence at the hands of other prisoners. Id. at 833; Cortez v. 22 Skol, 776 F. 3d 1046, 1050 (9th Cir. 2015); Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 23 2005). The failure of prison officials to protect inmates from attacks by other inmates or from 24 dangerous conditions at the prison violates the Eighth Amendment when two requirements are 25 met: (1) the deprivation alleged is, objectively, sufficiently serious; and (2) the prison official is, 26 subjectively, deliberately indifferent to inmate health or safety. Farmer, 511 U.S. at 834. A prison 27 official is deliberately indifferent if he knows of and disregards an excessive risk to inmate health 1 Allegations in a pro se complaint sufficient to raise an inference that the named prison 2 officials knew that Plaintiff faced a substantial risk of serious harm, and disregarded that risk by 3 failing to take reasonable measures to abate it, state a failure-to-protect claim. See Hearns, 413 4 F.3d at 1041-42 (citing Farmer, 511 U.S. at 847). 5 “In a § 1983 or a Bivens action – where masters do not answer for the torts of their servants 6 – the term ‘supervisory liability’ is a misnomer. Absent vicarious liability, each Government 7 official, his or her title notwithstanding, is only liable for his or her own misconduct.” Iqbal, 556 8 U.S. at 677 (finding under Twombly, 550 U.S. at 544, and Rule 8 of the Federal Rules of Civil 9 Procedure, that complainant-detainee in a Bivens action failed to plead sufficient facts “plausibly 10 showing” that top federal officials “purposely adopted a policy of classifying post-September 11th 11 detainees as ‘of high interest’ because of their race, religion, or national origin” over more likely 12 and non-discriminatory explanations). 13 A supervisor may be liable under section 1983 upon a showing of (1) personal 14 involvement in the constitutional deprivation or (2) a sufficient causal connection between the 15 supervisor’s wrongful conduct and the constitutional violation. Henry A. v. Willden, 678 F.3d 991, 16 1003-04 (9th Cir. 2012). Even if a supervisory official is not directly involved in the allegedly 17 unconstitutional conduct, “[a] supervisor can be liable in this individual capacity for his own 18 culpable action or inaction in the training, supervision, or control of his subordinates; for his 19 acquiescence in the constitutional deprivation; or for conduct that showed a reckless or callous 20 indifference to the rights of others.” Starr v. Baca, 652 F.3d 1202, 1208 (9th Cir. 2011) (citation 21 omitted). The claim that a supervisory official “knew of unconstitutional conditions and ‘culpable 22 actions of his subordinates’ but failed to act amounts to ‘acquiescence in the unconstitutional 23 conduct of his subordinates’ and is ‘sufficient to state a claim of supervisory liability.’” Keates v. 24 Koile, 883 F.3d 1228, 1243 (9th Cir. 2018) (quoting Starr, 652 F.3d at 1208) (finding that 25 conclusory allegations that supervisor promulgated unconstitutional procedures which authorized 26 unconstitutional conduct of subordinates do not suffice to state a claim of supervisory liability). 27 Plaintiff states that his cellmate sexually assaulted him and later attempted to sexually 1 Elimination Act of 2003, 42 U.S.C. § 15601 (“PREA”). Plaintiff lists several defendants on the 2 title page of his complaint but has failed to describe the actions of any specific defendant. 3 Plaintiff seeks to bring an action pursuant to the PREA. However, the PREA does not 4 create a private right of action, even for allegations of prison rape. See Krieg v. Steele, 599 Fed. 5 Appx. 231 (5th Cir. 2015) (collecting cases); Porter v. Jennings, 2012 WL 1434986, at *1 (E.D. 6 Cal. 2012) (noting same). To the extent that Plaintiff seeks to a bring an Eighth Amendment claim, 7 the complaint is dismissed with leave to amend. In an amended complaint, Plaintiff must identify 8 the actions of specific defendants and describe how their actions violated his constitutional rights. 9 He must describe how defendants knew of and disregarded an excessive risk to his safety by 10 failing to take reasonable steps to abate it. 11 CONCLUSION 12 1. The complaint is DISMISSED with leave to amend in accordance with the standards 13 set forth above. The amended complaint must be filed within twenty-eight (28) days of the date 14 this order is filed and must include the caption and civil case number used in this order and the 15 words AMENDED COMPLAINT on the first page. Because an amended complaint completely 16 replaces the original complaint, Plaintiff must include in it all the claims he wishes to present. See 17 Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). He may not incorporate material from the 18 original complaint by reference. Failure to amend within the designated time will result in the 19 dismissal of this case. 20 2. It is the Plaintiff’s responsibility to prosecute this case. Plaintiff must keep the court 21 informed of any change of address by filing a separate paper with the clerk headed “Notice of 22 Change of Address,” and must comply with the court’s orders in a timely fashion. Failure to do so 23 may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil 24 Procedure 41(b). 25 // 26 // 27 // 1 IT IS SO ORDERED. 2 || Dated: September 16, 2020 3 4 RQ@BERT M. ILLMAN 5 United States Magistrate Judge 6 7 8 9 10 11 a 12 13 16 Z 18 19 20 21 22 23 24 25 26 27 28