1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DENZELL MAGIC METCALF, Case No. 1:19-cv-00809-BAM (PC) 12 Plaintiff, ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT JUDGE TO 13 v. ACTION 14 C. HUCKLEBERRY, et al., FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF CERTAIN 15 Defendants. CLAIMS AND DEFENDANTS 16 (ECF No. 10) 17 FOURTEEN-DAY DEADLINE 18 19 Plaintiff Denzell Magic Metcalf (“Plaintiff”) is a state prisoner proceeding pro se and in 20 forma pauperis in this civil rights action under 42 U.S.C. § 1983. On October 11, 2019, the Court 21 screened Plaintiff’s complaint and directed him to either file a first amended complaint or notify 22 the Court of his willingness to proceed on certain cognizable claims. (ECF No. 9.) Plaintiff’s first 23 amended complaint, filed on November 15, 2019, is currently before the Court for screening. (ECF 24 No. 10) 25 I. Screening Requirement and Standard 26 The Court is required to screen complaints brought by prisoners seeking relief against a 27 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. 28 § 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous or 1 malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief 2 from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b). 3 A complaint must contain “a short and plain statement of the claim showing that the pleader 4 is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 5 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 6 do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 7 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as true, courts “are not required 8 to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 9 2009) (internal quotation marks and citation omitted). 10 To survive screening, Plaintiff’s claims must be facially plausible, which requires sufficient 11 factual detail to allow the Court to reasonably infer that each named defendant is liable for the 12 misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret Serv., 13 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is not 14 sufficient, and mere consistency with liability falls short of satisfying the plausibility standard. 15 Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969. 16 II. Plaintiff’s Allegations 17 Plaintiff is currently housed at Kern Valley State Prison in Delano, California, where the 18 events in the complaint are alleged to have occurred. Plaintiff names the following defendants: (1) 19 Sergeant C. Huckleberry; (2) Correctional Officer Burkfit; (3) Correctional Officer M. Franco; and 20 (4) Correctional Officer M. Marquez. 21 Plaintiff alleges: On July 3, 2018, Plaintiff attended Committee, which is a meeting 22 between the Captain Faulkner, Counselors and Plaintiff to determine his housing conditions at Kern 23 Valley State Prison. During this meeting, Plaintiff told Captain Faulkner that he had safety 24 concerns with his planned housing in Kern Valley State Prison D-Yard, Building 1-4 & 5-6. 25 Plaintiff gave Captain Faulkner the names of the inmates who posed a threat to Plaintiff’s safety, 26 but Captain Faulkner failed to conduct a proper threat assessment. Instead, Captain Faulkner told 27 Plaintiff to speak with D-Yard Sergeant Pitchford about his situation. Plaintiff explained to 28 Sergeant Pitchford about his situation, but Sergeant Pitchford did not properly investigate it. 1 Sergeant Pitchford sent Plaintiff back to his housing unit, D7. 2 Plaintiff asserts that a claim form was not available for him to file a complaint in a timely 3 fashion, so he told Defendant Burkfit, the floor officer, that he had safety concerns at the facility, 4 and he would be in conflict if he stayed on the yard. Defendant Burkfit did nothing, so Plaintiff 5 filled out a CDCR Form 22 stating his safety concerns. Plaintiff asked Defendant Burkfit to sign 6 the form, which he did. Plaintiff claims that this indicates Defendant Burkfit was fully aware of 7 the imminent danger. Defendant Burkfit told Plaintiff that if he did not go that day, then they would 8 come to get him to go on July 6, 2018. 9 After a few days, on July 6, 2018, Officer Sharp came to Plaintiff’s cell. Officer Sharp 10 explained that Defendant Huckleberry was out on the D-Yard patio waiting to conduct a proper 11 threat assessment regarding Plaintiff’s safety concerns. Plaintiff’s cell mate, Inmate Jason 12 Broadbent, told Plaintiff not to go and that it was a set up. Plaintiff claims that prison officials 13 never intended to conduct a proper threat assessment regarding his safety concerns. 14 On July 6, 2018, Plaintiff walked out of his cell to the D-Yard patio, unhandcuffed and in 15 full compliance. Plaintiff was greeted by Defendants Huckleberry, Marquez and Franco, who were 16 visibly tightening their gloves around their hands. Plaintiff tried to explain his situation to 17 Defendant Huckleberry and told him the names of the inmates. Before Plaintiff could explain why, 18 Defendant Huckleberry ordered Defendants Marquez and Franco to handcuff Plaintiff and escort 19 him to the yard where Plaintiff said he had safety concerns. Plaintiff asked them why there were 20 handcuffing him and pushing him to the yard when all he did was ask for help. Defendant 21 Huckleberry told him to shut up and walked with Defendants Franco and Marquez as they pushed 22 and escorted Plaintiff to a yard where Plaintiff had safety concerns. Once at D6 Building, Cell 126, 23 Plaintiff was pushed inside the cell by Defendant Franco and Plaintiff’s handcuffs were removed. 24 Plaintiff went to bang on the cell door as officers were walking away, and when Plaintiff turned 25 around, the inmate occupying the cell pulled out a knife and stabbed Plaintiff in the face. 26 As relief, Plaintiff seeks compensatory and punitive damages. 27 III. Discussion 28 Prison officials have a duty under the Eighth Amendment to protect prisoners from violence 1 at the hands of other prisoners or others because being violently assaulted in prison is simply not 2 part of the penalty that criminal offenders pay for their offenses against society. Farmer v. Brennan, 3 511 U.S. 825, 83334, 114 S.Ct. 1970, 28 L.Ed.2d 811 (1994); Clem v. Lomeli, 566 F.3d 1177, 1181 4 (9th Cir.2009); Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir.2005). Prison officials are liable 5 under the Eighth Amendment f they demonstrate deliberate indifference to conditions posing a 6 substantial risk of serious harm to an inmate; and it is well settled that deliberate indifference occurs 7 when an official acted or failed to act despite his knowledge of a substantial risk of serious harm. 8 Farmer, 511 U.S. at 834, 841; Clem, 566 F.3d at 1181; Hearns, 413 F.3d at 1040. 9 Here, the Court finds that Plaintiff's amended complaint states a cognizable claim for failure 10 to protect against Defendants Huckleberry, Marquez and Franco arising out of the July 6, 2018 11 incident. However, Plaintiff fails to state a claim for failure to protect against Defendant Burkfit. 12 There is no indication in Plaintiff’s complaint that Defendant Burkfit knew that Plaintiff was going 13 to be moved on July 6, 2018 to the D6 Building and failed to protect him. 14 IV. Conclusion and Recommendation 15 The Court finds that Plaintiff’s amended complaint states a cognizable claim against 16 Defendants Huckleberry, Marquez and Franco for failure to protect Plaintiff in violation of the 17 Eighth Amendment arising out of the July 6, 2018 incident. However, Plaintiff does not state any 18 other cognizable claims against any other defendant. 19 Accordingly, the Clerk of the Court is HEREBY DIRECTED to randomly assign a District 20 Judge to this action. 21 Furthermore, it is HEREBY RECOMMENDED that: 22 1. This action proceed on Plaintiff’s first amended complaint, filed on November 15, 23 2019, against Defendants Huckleberry, Marquez and Franco for failure to protect Plaintiff in 24 violation of the Eighth Amendment arising out of the July 6, 2018 incident; and 25 2. All other claims and defendants be dismissed based on Plaintiff’s failure to state a 26 claim upon which relief may be granted. 27 These Findings and Recommendations will be submitted to the United States District Judge 28 assigned to the case, as required by 28 U.S.C. § 636(b)(l). Within fourteen (14) days after being 1 served with these Findings and Recommendations, Plaintiff may file written objections with the 2 Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 3 Recommendations.” Plaintiff is advised that the failure to file objections within the specified time 4 may result in the waiver of the “right to challenge the magistrate’s factual findings” on appeal. 5 Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 6 1394 (9th Cir. 1991)). 7 IT IS SO ORDERED. 8 9 Dated: November 19, 2019 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28