1 2 3 4 5 6 9 10 NICKY BOONE, No. 2:20-cv-2100 WBS DB P 11 Plaintiff, 12 v. ORDER 13 RUBY, et al., 14 Defendants. 15 16 17 Plaintiff, a state prisoner, proceeds pro se with a civil rights complaint under 42 U.S.C. § 18 1983. This matter is before the undersigned pursuant to Local Rule 302 and 28 U.S.C. § 19 636(b)(1). Plaintiff’s second amended complaint filed on April 25, 2022, is before the court for 20 screening. (ECF No. 24.) For the reasons that follow, plaintiff may elect to either (1) proceed on 21 the second amended complaint, as screened, with a claim under the Eighth Amendment claim 22 against Officer Vargass; (2) or, in the alternative, plaintiff may elect to proceed on the first 23 amended complaint, as previously screened, with claims under the Eighth Amendment against 24 Officer Vargass, Sergeant Silva, Officer Ruby, Officer Armstead, and Officer Arbaca. Plaintiff 25 shall respond to this order in writing, indicating plaintiff’s choice. 26 I. Screening Requirement 27 The court is required to screen complaints brought by prisoners seeking relief against a 28 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 1 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 2 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 3 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 4 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. 5 Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 6 1984). The court may dismiss a claim as frivolous if it is based on an indisputably meritless legal 7 theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical 8 inquiry is whether a constitutional claim has an arguable legal and factual basis. See Jackson v. 9 Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227. 10 In order to state a claim upon which relief may be granted, Rule 8(a)(2) of the Federal 11 Rules of Civil Procedure requires a short and plain statement of the claim that shows the pleader 12 is entitled to relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). In order to state a 13 cognizable claim, a complaint must contain more than “a formulaic recitation of the elements of a 14 cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the 15 speculative level.” Id., 550 U.S. at 555. The facts alleged must “‘give the defendant fair notice of 16 what the... claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 17 (2007) (quoting Bell Atlantic, 550 U.S. at 555). In reviewing a complaint under this standard, the 18 court accepts as true the allegations of the complaint and construes the pleading in the light most 19 favorable to the plaintiff. See id.; Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 20 II. Allegations in the Second Amended Complaint 21 On July 12, 2020, plaintiff was assaulted by inmates while in the dayroom when Officer 22 Vargass left her post. (ECF No. 24 at 3.) Plaintiff was assaulted for more than 10 minutes and 23 suffered significant injuries including head trauma and brain trauma. (Id.) After plaintiff was 24 assaulted, Officer Vargass emptied an entire can of mace into plaintiff’s face while plaintiff was 25 unconscious on the ground. (Id.) Plaintiff later found out from the assaulting inmates that 26 correctional officers had paid inmates to assault plaintiff. (Id.) Plaintiff seeks monetary damages. 27 (Id. at 6.) 28 //// 1 III. Discussion 2 A. Eighth Amendment Standards 3 Excessive force in violation of the Eighth Amendment occurs when prison officials apply 4 force maliciously and sadistically to cause harm, rather than in a good-faith effort to maintain or 5 restore discipline. Hudson v. McMillian, 503 U.S. 1, 6-7 (1992); see also Clement v. Gomez, 298 6 F.3d 898, 903 (9th Cir. 2002). The relevant factors may include (1) the need for application of 7 force, (2) the relationship between that need and the amount of force used, (3) the threat 8 reasonably perceived by the responsible officials, and (4) any efforts made to temper the severity 9 of a forceful response. Hudson, 503 U.S. at 7. 10 In a “failure-to-protect” Eighth Amendment violation claim, an inmate must show that a 11 prison official’s act or omission (1) was objectively, sufficiently serious, and (2) the official was 12 deliberately indifferent to inmate’s health or safety. Farmer v. Brennan, 511 U.S. 825, 834 13 (1994); Hearns v. Terhune, 413 F.3d 1036, 1042 (9th Cir. 2005). The failure of prison officials to 14 protect inmates from attacks by other inmates may rise to the level of an Eighth Amendment 15 violation where prison officials know of and disregard a substantial risk of serious harm to the 16 plaintiff. See Farmer, 511 U.S. at 847; Hearns, 413 F.3d at 1040. A prison official need not 17 “believe to a moral certainty” that an inmate is at risk of harm “before [he] is obligated to take 18 steps to prevent such an assault,” but “he must have more than a mere suspicion that an attack 19 will occur.” Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986) (citation omitted). 20 “[S]peculative and generalized fears of harm at the hands of other prisoners do not rise to a 21 sufficiently substantial risk of serious harm to [an inmate’s] future health.” Williams v. Wood, 22 223 F. App’x 670, 671 (9th Cir. 2007) (citation omitted). The obviousness of the risk, however, 23 may be sufficient to establish knowledge. See Farmer, 511 U.S. at 842; Wallis v. Baldwin, 70 24 F.3d 1074, 1077 (9th Cir. 1995). The prisoner may demonstrate that the risk was obvious due to 25 the prisoner’s personal characteristics or conditions within the prison. See Lemire v. Cal. Dep't of 26 Corr. & Rehab., 726 F.3d 1062, 1078 (9th Cir. 2013). 27 To demonstrate that a prison official was deliberately indifferent to a serious threat to the 28 inmate’s safety, the prisoner must show that “the official [knew] of and disregard[ed] an 1 excessive risk to inmate ... safety; the official must both be aware of facts from which the 2 inference could be drawn that a substantial risk of serious harm exists, and [the official] must also 3 draw the inference.” Farmer, 511 U.S. at 837. 4 B. Cognizable Eighth Amendment Claim in the Second Amended Complaint 5 The second amended complaint states a cognizable claim against C/O Vargass, whom 6 plaintiff alleges emptied an entire can of mace into plaintiff’s face while plaintiff was 7 unconscious on the ground. (ECF No.
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1 2 3 4 5 6 9 10 NICKY BOONE, No. 2:20-cv-2100 WBS DB P 11 Plaintiff, 12 v. ORDER 13 RUBY, et al., 14 Defendants. 15 16 17 Plaintiff, a state prisoner, proceeds pro se with a civil rights complaint under 42 U.S.C. § 18 1983. This matter is before the undersigned pursuant to Local Rule 302 and 28 U.S.C. § 19 636(b)(1). Plaintiff’s second amended complaint filed on April 25, 2022, is before the court for 20 screening. (ECF No. 24.) For the reasons that follow, plaintiff may elect to either (1) proceed on 21 the second amended complaint, as screened, with a claim under the Eighth Amendment claim 22 against Officer Vargass; (2) or, in the alternative, plaintiff may elect to proceed on the first 23 amended complaint, as previously screened, with claims under the Eighth Amendment against 24 Officer Vargass, Sergeant Silva, Officer Ruby, Officer Armstead, and Officer Arbaca. Plaintiff 25 shall respond to this order in writing, indicating plaintiff’s choice. 26 I. Screening Requirement 27 The court is required to screen complaints brought by prisoners seeking relief against a 28 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 1 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 2 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 3 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 4 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. 5 Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 6 1984). The court may dismiss a claim as frivolous if it is based on an indisputably meritless legal 7 theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical 8 inquiry is whether a constitutional claim has an arguable legal and factual basis. See Jackson v. 9 Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227. 10 In order to state a claim upon which relief may be granted, Rule 8(a)(2) of the Federal 11 Rules of Civil Procedure requires a short and plain statement of the claim that shows the pleader 12 is entitled to relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). In order to state a 13 cognizable claim, a complaint must contain more than “a formulaic recitation of the elements of a 14 cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the 15 speculative level.” Id., 550 U.S. at 555. The facts alleged must “‘give the defendant fair notice of 16 what the... claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 17 (2007) (quoting Bell Atlantic, 550 U.S. at 555). In reviewing a complaint under this standard, the 18 court accepts as true the allegations of the complaint and construes the pleading in the light most 19 favorable to the plaintiff. See id.; Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 20 II. Allegations in the Second Amended Complaint 21 On July 12, 2020, plaintiff was assaulted by inmates while in the dayroom when Officer 22 Vargass left her post. (ECF No. 24 at 3.) Plaintiff was assaulted for more than 10 minutes and 23 suffered significant injuries including head trauma and brain trauma. (Id.) After plaintiff was 24 assaulted, Officer Vargass emptied an entire can of mace into plaintiff’s face while plaintiff was 25 unconscious on the ground. (Id.) Plaintiff later found out from the assaulting inmates that 26 correctional officers had paid inmates to assault plaintiff. (Id.) Plaintiff seeks monetary damages. 27 (Id. at 6.) 28 //// 1 III. Discussion 2 A. Eighth Amendment Standards 3 Excessive force in violation of the Eighth Amendment occurs when prison officials apply 4 force maliciously and sadistically to cause harm, rather than in a good-faith effort to maintain or 5 restore discipline. Hudson v. McMillian, 503 U.S. 1, 6-7 (1992); see also Clement v. Gomez, 298 6 F.3d 898, 903 (9th Cir. 2002). The relevant factors may include (1) the need for application of 7 force, (2) the relationship between that need and the amount of force used, (3) the threat 8 reasonably perceived by the responsible officials, and (4) any efforts made to temper the severity 9 of a forceful response. Hudson, 503 U.S. at 7. 10 In a “failure-to-protect” Eighth Amendment violation claim, an inmate must show that a 11 prison official’s act or omission (1) was objectively, sufficiently serious, and (2) the official was 12 deliberately indifferent to inmate’s health or safety. Farmer v. Brennan, 511 U.S. 825, 834 13 (1994); Hearns v. Terhune, 413 F.3d 1036, 1042 (9th Cir. 2005). The failure of prison officials to 14 protect inmates from attacks by other inmates may rise to the level of an Eighth Amendment 15 violation where prison officials know of and disregard a substantial risk of serious harm to the 16 plaintiff. See Farmer, 511 U.S. at 847; Hearns, 413 F.3d at 1040. A prison official need not 17 “believe to a moral certainty” that an inmate is at risk of harm “before [he] is obligated to take 18 steps to prevent such an assault,” but “he must have more than a mere suspicion that an attack 19 will occur.” Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986) (citation omitted). 20 “[S]peculative and generalized fears of harm at the hands of other prisoners do not rise to a 21 sufficiently substantial risk of serious harm to [an inmate’s] future health.” Williams v. Wood, 22 223 F. App’x 670, 671 (9th Cir. 2007) (citation omitted). The obviousness of the risk, however, 23 may be sufficient to establish knowledge. See Farmer, 511 U.S. at 842; Wallis v. Baldwin, 70 24 F.3d 1074, 1077 (9th Cir. 1995). The prisoner may demonstrate that the risk was obvious due to 25 the prisoner’s personal characteristics or conditions within the prison. See Lemire v. Cal. Dep't of 26 Corr. & Rehab., 726 F.3d 1062, 1078 (9th Cir. 2013). 27 To demonstrate that a prison official was deliberately indifferent to a serious threat to the 28 inmate’s safety, the prisoner must show that “the official [knew] of and disregard[ed] an 1 excessive risk to inmate ... safety; the official must both be aware of facts from which the 2 inference could be drawn that a substantial risk of serious harm exists, and [the official] must also 3 draw the inference.” Farmer, 511 U.S. at 837. 4 B. Cognizable Eighth Amendment Claim in the Second Amended Complaint 5 The second amended complaint states a cognizable claim against C/O Vargass, whom 6 plaintiff alleges emptied an entire can of mace into plaintiff’s face while plaintiff was 7 unconscious on the ground. (ECF No. 24 at 3.) This is the only cognizable claim stated in the 8 second amended complaint, which lacks specific factual allegations as to the conduct of C/O 9 Ruby, C/O Armstead, C/O Arbaca, and Sgt. Silva. (See ECF No. 24.) 10 C. Plaintiff may Elect to Proceed on the First Amended Complaint, as Screened, or 11 on the Second Amended Complaint, as Screened 12 By order dated January 20, 2022, the undersigned screened plaintiff’s first amended 13 complaint and construed it liberally to find it stated claims under the Eighth Amendment against 14 Officer Vargass, C/O Ruby, C/O Armstead, C/O Arbaca, and Sgt. Silva. (ECF No. 20.) In 15 screening the first amended complaint, the undersigned considered an attachment to the first 16 amended complaint purporting to be a statement by Inmate Cisneros, who stated he and two other 17 inmates assaulted plaintiff on July 12, 2020 at approximately 3:45 p.m., and that the assault was 18 orchestrated by correctional officers in that inmate Cisneros was approached by C/O Ruby, C/O 19 Armstead, C/O Arbaca, C/O Vargass, and Sgt. Silva, and “promised several beneficial promises if 20 myself, Inmate Todd, and Inmate Mendoza were to carry out with this assault [against plaintiff].” 21 (ECF No. 16 at 5.) 22 In screening the first amended complaint, the undersigned noted the statement by inmate 23 Cisneros was not signed under penalty of perjury, but also that plaintiff was not required to 24 produce a statement signed under penalty of perjury in order to state a claim. (ECF No. 20 at 2-3.) 25 The second amended complaint omits the purported statement by inmate Cisneros and does not 26 contain factual allegations to support a claim against any defendant other than C/O Vargass. 27 However, it is not clear whether this omission resulted from a deliberate choice by plaintiff, a 28 misunderstanding of the screening order, or other difficulties pleading. 1 Accordingly, the court will direct plaintiff to inform the court in writing whether plaintiff 2 | elects to proceed (1) on the second amended complaint, as screened, with a claim under the 3 | Eighth Amendment claim against Officer Vargass; or (2) on the first amended complaint, as 4 | previously screened by order dated January 20, 2022 (ECF No. 20), with claims under the Eighth 5 | Amendment against Officer Vargass, Sergeant Silva, Officer Ruby, Officer Armstead, and 6 | Officer Arbaca. Plaintiff shall inform the court of plaintiffs choice, in writing and within 30 7 | days. 8 IV. Conclusion 9 In accordance with the above, IT IS HEREBY ORDERED: 10 1. Within thirty days from the date of service of this order, plaintiff must either: 11 a. Notify the court in writing he wishes to stand on his first amended complaint 12 as screened, with claims under the Eighth Amendment against Officer 13 Vargass, Sergeant Silva, Officer Ruby, Officer Armstead, and Officer 14 Arbaca; or 15 b. Notify the court in writing he wishes to stand on his second amended 16 complaint, as screened, with a claim under the Eighth Amendment claim 17 against Officer Vargass. 18 2. Plaintiff is cautioned that failure to respond to this order will result in a 19 | recommendation that this action be dismissed for failure to obey a court order and failure to 20 | prosecute. 21 | Dated: July 26, 2022
23 24 | sconatdosceets TEED SLATES ab UNITED STATES MAGISTRATE JUDGE 25 26 27 28