Wilkins v. Baker ( 2023 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 TIMOTHY D. WILKINS, Case No. 23-cv-01387-HSG 8 Plaintiff, ORDER DISMISSING AMENDED COMPLAINT WITH LEAVE TO 9 v. AMEND 10 B. BAKER, et al., Re: Dkt. No. 10 11 Defendants. 12 13 Plaintiff has filed a pro se action pursuant to 42 U.S.C. § 1983. His amended complaint 14 (Dkt. No. 10) is before the Court for review under 28 U.S.C. § 1915A. 15 DISCUSSION 16 A. Standard of Review 17 A federal court must conduct a preliminary screening in any case in which a prisoner seeks 18 redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 19 § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims 20 that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 21 monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), 22 (2). Pro se pleadings must, however, be liberally construed. See United States v. Qazi, 975 F.3d 23 989, 993 (9th Cir. 2020). 24 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 25 claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Specific facts are not 26 necessary; the statement need only “‘give the defendant fair notice of what the . . . claim is and the 27 grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted). 1 the-defendant-unlawfully-harmed-me accusation. Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009). 2 A pleading that offers only labels and conclusions, or a formulaic recitation of the elements of a 3 cause of action, or naked assertions devoid of further factual enhancement does not suffice. Id. 4 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a 5 right secured by the Constitution or laws of the United States was violated, and (2) that the alleged 6 violation was committed by a person acting under the color of state law. See West v. Atkins, 487 7 U.S. 42, 48 (1988). 8 B. Procedural Background 9 The initial complaint alleged that Plaintiff filed a grievance regarding his housing 10 placement, and that on October 3, 2022, defendant SQSP correctional sergeant B. Baker retaliated 11 against him for filing the grievance by issuing him a rules violation report, in violation of the First 12 Amendment prohibition on retaliation for exercising protected conduct. See generally Dkt. No. 1. 13 The Court dismissed the complaint with leave to amend because it only proffered a conclusory 14 assertion without factual enhancement. Dkt. No. 8. 15 C. Amended Complaint 16 The amended complaint names as defendants M. Gaitan, L.V. Perez, E. Cabrera, Wright, 17 Stribling, T. Gourdine, and B. Baker. The amended complaint makes the following allegations. 18 On September 14, 2022, at intake, Plaintiff informed defendant Gaitan that he was not gay. 19 Defendant Gaitan housed Plaintiff with a gay inmate because he could tell that homosexuality 20 made Plaintiff uncomfortable. After Plaintiff discovered that he was housed with a gay inmate, 21 Plaintiff asked defendants Cabrera, Wright, Stribling, and Gourdine why he was housed with a gay 22 inmate. Defendant Wright responded that Plaintiff required a bottom bunk so they got him one, 23 and defendant Gourdine told Plaintiff that if he didn’t like his current housing, he should find a 24 new cell. On September 16, 2022, Plaintiff filed a grievance about his housing placement. After 25 filing the grievance, Plaintiff noticed non-party sergeant Perez and other guards laughing at him 26 on different occasions as he passed the guards’ desk, and sergeant Perez laughed at him on 27 September 22, 2022, when Plaintiff returned from committee, where his request for restoration of 1 if they found it funny that Plaintiff was forced to remain housed with a gay inmate. Plaintiff was 2 “eventually housed in his own living quarters on September 22, 2022, but only after he committed 3 a rule violation in an effort to keep himself safe.” Dkt. No. 10 at 5. On October 3, 2022, 4 defendant Baker retaliated against Plaintiff for filing a grievance about his housing placement by 5 issuing him a rules violation report for his behavior on September 22, 2022. 6 The amended complaint alleges that defendants Gaitan, Perez, Cabrera, Wright, Stribling, 7 and Gourdine were deliberately indifferent to Plaintiff’s personal safety, in violation of the Eighth 8 Amendment; and that defendant Baker retaliated against him for filing a grievance regarding his 9 housing placement, in violation of the First Amendment. 10 The amended complaint is DISMISSED for failure to state a claim for the following 11 reasons. 12 The amended complaint fails to state an Eighth Amendment claim against defendants 13 Gaitan, Perez, Cabrera, Wright, Stribling, and Gourdine because it is unclear how being housed 14 with a gay inmate exposed Plaintiff to an excessive risk to his safety. The Eighth Amendment 15 requires that prison officials take reasonable measures to guarantee the safety of prisoners. 16 Farmer v. Brennan, 511 U.S. 825, 832 (1994). The failure of prison officials to protect inmates 17 from dangerous conditions at the prison violates the Eighth Amendment when two requirements 18 are met: (1) the deprivation alleged is, objectively, sufficiently serious; and (2) the prison official 19 is, subjectively, deliberately indifferent to inmate health or safety. Farmer, 511 U.S. at 834. A 20 prison official is deliberately indifferent if he knows of and disregards an excessive risk to inmate 21 health or safety by failing to take reasonable steps to abate it. Id. at 837. The amended complaint 22 does not identify how being housed with a gay inmate constituted an excessive risk to Plaintiff’s 23 safety. This Eighth Amendment claim is DISMISSED with leave to amend to correct the 24 identified deficiency, if Plaintiff can truthfully do so. 25 The amended complaint fails to state a First Amendment retaliation claim against 26 defendant Baker. In the amended complaint, Plaintiff acknowledges committing the rules 27 violation that is the subject of the RVR issued by defendant Baker on October 3, 2022, and states 1 contradicts the allegation that defendant Baker falsely issued the RVR in retaliation for Plaintiffs 2 || protected conduct. The First Amendment retaliation claim against defendant Baker is therefore 3 || DISMISSED with prejudice. See Airs Aromatics, LLC v. Victoria’s Secret Stores Brand Mgmt, 4 |) Inc., 744 F.3d 595, 600 (9th Cir. 2014) (“A party cannot amend pleadings to directly contradic[t] 5 an earlier assertion made in the same proceedings.”) (internal quotation marks and citation 6 omitted). 7 CONCLUSION 8 For the reasons set forth above, the Court orders as follows. 9 1. The Court DISMISSES the First Amendment claim against defendant Baker with 10 || prejudice; DISMISSES defendant Baker from this action; and DISMISSES with leave to amend 11 the Eighth Amendment claim against Gaitan, Perez, Cabrera, Wright, Stribling, and Gourdine. 12 2. Within twenty-eight (28) days of the date of this order, Plaintiff shall file a second 5 13 amended complaint that addresses the identified deficiency in the Eighth Amendment claim. 14 || Plaintiff may not raise new claims in the second amended complaint. The second amended 3 15 complaint must include the caption and civil case number used in this order, Case No. C 23-01387 a 16 || HSG (PR) and the words “SECOND AMENDED COMPLAINT” on the first page. If using the 3 17 court form complaint, Plaintiff must answer all the questions on the form in order for the action to 18 || proceed. An amended complaint completely replaces the previous complaints. See Lacey v. 19 Maricopa Cnty., 693 F.3d 896, 925 (9th Cir. 2012). Accordingly, Plaintiff must include in his 20 second amended complaint all the claims he wishes to present and all of the defendants he wishes 21 to sue, and may not incorporate material from the prior complaints by reference. 22 Failure to file a second amended complaint in accordance with this order in the time 23 provided will result in dismissal of this action without further notice to Plaintiff. The Clerk shall 24 || include two copies of the court’s complaint form with a copy of this order to Plaintiff. 25 IT IS SO ORDERED. 26 || Dated: 9/27/2023 27 Abpured 3 Sb) 28 HAYWOOD S. GILLIAM, JR. United States District Judge