1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DAVIN FENIX, No. 1:24-cv-00202-SAB (PC) 12 Plaintiff, ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN A DISTRICT JUDGE 13 v. TO THIS ACTION 14 GAVIN NEWSOM, et al., FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF 15 Defendants. SUPERVISOR DEFENDANTS 16 (ECF No. 15) 17 18 19 Plaintiff is proceeding pro se and in forma pauperis in this action filed pursuant to 42 20 U.S.C. § 1983. 21 Currently before the Court is Plaintiff’s first amended complaint, filed May 6, 2024. 22 I. 23 SCREENING REQUIREMENT 24 The Court is required to screen complaints brought by prisoners seeking relief against a 25 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 26 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 27 “frivolous or malicious,” that “fail[] to state a claim on which relief may be granted,” or that 28 1 “seek[] monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 2 1915(e)(2)(B); see also 28 U.S.C. § 1915A(b). 3 A complaint must contain “a short and plain statement of the claim showing that the 4 pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 5 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 6 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 7 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate 8 that each defendant personally participated in the deprivation of Plaintiff’s rights. Jones v. 9 Williams, 297 F.3d 930, 934 (9th Cir. 2002). 10 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings 11 liberally construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 12 1113, 1121 (9th Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be 13 facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer 14 that each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss 15 v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant 16 has acted unlawfully” is not sufficient, and “facts that are ‘merely consistent with’ a defendant’s 17 liability” falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d 18 at 969. 19 II. 20 SUMMARY OF ALLEGATIONS 21 The Court accepts Plaintiff’s allegations in his complaint as true only for the purpose of 22 the screening requirement under 28 U.S.C. § 1915. 23 Plaintiff names Governor Gavin Newsom, Associate Warden Waddle, Correctional 24 Counselor Miller, Correctional Counselor Supervisor Cassering, and officer Soto, as Defendants. 25 Plaintiff was at High Desert State Prison (HDSP) and was being considered for a transfer. 26 Before Plaintiff was transferred, he documented that he could not be housed at North Kern State 27 Prison (NKSP) because he has enemies at that prison. Plaintiff told Miller and Cassering, but he 28 was transferred from HDSP to NKSP. Plaintiff immediately informed officer Soto that he has 1 enemies and faced a substantial risk of harm due to the unsafe housing. Officer Soto refused to 2 protect Plaintiff and left him in arms way telling Plaintiff to “get at my people and get a 602.” A 3 few days after Plaintiff informed officer Soto of his enemy concerns, Plaintiff was called for a 4 medical ducat. As soon as Plaintiff entered the yard, he was jumped by two inmate (enemies) and 5 received a Rules Violation Report. 6 III. 7 DISCUSSION 8 A. Failure to Protect 9 The Eighth Amendment requires that prison officials take reasonable measures to 10 guarantee the safety of prisoners. Farmer v. Brennan, 511 U.S. at 832. In particular, prison 11 officials have a duty to protect prisoners from violence at the hands of other prisoners. Id. at 833; 12 Cortez v. Skol, 776 F. 3d 1046, 1050 (9th Cir. 2015); Hearns v. Terhune, 413 F.3d 1036, 1040 13 (9th Cir. 2005); Hoptowit v. Ray, 682 F.2d 1237, 1250 (9th Cir. 1982); Gillespie v. Civiletti, 629 14 F.2d 637, 642 & n.3 (9th Cir. 1980). 15 The failure of prison officials to protect inmates from attacks by other inmates or from 16 dangerous conditions at the prison violates the Eighth Amendment when two requirements are 17 met: (1) the deprivation alleged is, objectively, sufficiently serious; and (2) the prison official is, 18 subjectively, deliberately indifferent to inmate health or safety. Farmer, 511 U.S. at 834. A prison 19 official is deliberately indifferent if he knows of and disregards an excessive risk to inmate health 20 or safety by failing to take reasonable steps to abate it. Id. at 837. 21 A prisoner may state a § 1983 claim under the Eighth Amendment against prison officials 22 only where the officials acted with “deliberate indifference” to the threat of serious harm or injury 23 to an inmate by another prisoner, Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986); see also 24 Valandingham v. Bojorquez, 866 F.2d 1135, 1138 (9th Cir. 1989) (deliberately spreading rumor 25 that prisoner is snitch may state claim for violation of right to be protected from violence while in 26 state custody), or by physical conditions at the prison. The official must both be aware of facts 27 from which the inference could be drawn that a substantial risk of serious harm exists, and he 28 must also draw the inference. Farmer, 511 U.S. at 837. Mere negligent failure to protect an 1 inmate from harm is not actionable under Section 1983. Id. at 835. 2 Here, Plaintiff alleges that Defendants Miller and Cassering knowingly transferred him 3 from HDSP to NKSP where he had documented enemies and was subsequently attacked. 4 Plaintiff also alleges that immediately upon his transfer he informed Defendant Soto of his 5 enemies, who failed to respond leading to the attack upon entry to the yard. Based on these 6 allegations, Plaintiff states a cognizable claim for relief against Defendants Miller, Cassering, and 7 Soto. 8 B. Liability of Supervisors 9 Plaintiff is attempting to sue Defendants Governor Newsom and Associate Warden 10 Waddle based solely upon their supervisory roles, he may not do so. Liability may not be 11 imposed on supervisory personnel for the actions or omissions of their subordinates under the 12 theory of respondeat superior. Iqbal, 556 U.S. at 676–77; Simmons v. Navajo Cty., Ariz., 609 13 F.3d 1011, 1020–21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 14 2009); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DAVIN FENIX, No. 1:24-cv-00202-SAB (PC) 12 Plaintiff, ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN A DISTRICT JUDGE 13 v. TO THIS ACTION 14 GAVIN NEWSOM, et al., FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF 15 Defendants. SUPERVISOR DEFENDANTS 16 (ECF No. 15) 17 18 19 Plaintiff is proceeding pro se and in forma pauperis in this action filed pursuant to 42 20 U.S.C. § 1983. 21 Currently before the Court is Plaintiff’s first amended complaint, filed May 6, 2024. 22 I. 23 SCREENING REQUIREMENT 24 The Court is required to screen complaints brought by prisoners seeking relief against a 25 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 26 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 27 “frivolous or malicious,” that “fail[] to state a claim on which relief may be granted,” or that 28 1 “seek[] monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 2 1915(e)(2)(B); see also 28 U.S.C. § 1915A(b). 3 A complaint must contain “a short and plain statement of the claim showing that the 4 pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 5 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 6 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 7 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate 8 that each defendant personally participated in the deprivation of Plaintiff’s rights. Jones v. 9 Williams, 297 F.3d 930, 934 (9th Cir. 2002). 10 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings 11 liberally construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 12 1113, 1121 (9th Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be 13 facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer 14 that each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss 15 v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant 16 has acted unlawfully” is not sufficient, and “facts that are ‘merely consistent with’ a defendant’s 17 liability” falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d 18 at 969. 19 II. 20 SUMMARY OF ALLEGATIONS 21 The Court accepts Plaintiff’s allegations in his complaint as true only for the purpose of 22 the screening requirement under 28 U.S.C. § 1915. 23 Plaintiff names Governor Gavin Newsom, Associate Warden Waddle, Correctional 24 Counselor Miller, Correctional Counselor Supervisor Cassering, and officer Soto, as Defendants. 25 Plaintiff was at High Desert State Prison (HDSP) and was being considered for a transfer. 26 Before Plaintiff was transferred, he documented that he could not be housed at North Kern State 27 Prison (NKSP) because he has enemies at that prison. Plaintiff told Miller and Cassering, but he 28 was transferred from HDSP to NKSP. Plaintiff immediately informed officer Soto that he has 1 enemies and faced a substantial risk of harm due to the unsafe housing. Officer Soto refused to 2 protect Plaintiff and left him in arms way telling Plaintiff to “get at my people and get a 602.” A 3 few days after Plaintiff informed officer Soto of his enemy concerns, Plaintiff was called for a 4 medical ducat. As soon as Plaintiff entered the yard, he was jumped by two inmate (enemies) and 5 received a Rules Violation Report. 6 III. 7 DISCUSSION 8 A. Failure to Protect 9 The Eighth Amendment requires that prison officials take reasonable measures to 10 guarantee the safety of prisoners. Farmer v. Brennan, 511 U.S. at 832. In particular, prison 11 officials have a duty to protect prisoners from violence at the hands of other prisoners. Id. at 833; 12 Cortez v. Skol, 776 F. 3d 1046, 1050 (9th Cir. 2015); Hearns v. Terhune, 413 F.3d 1036, 1040 13 (9th Cir. 2005); Hoptowit v. Ray, 682 F.2d 1237, 1250 (9th Cir. 1982); Gillespie v. Civiletti, 629 14 F.2d 637, 642 & n.3 (9th Cir. 1980). 15 The failure of prison officials to protect inmates from attacks by other inmates or from 16 dangerous conditions at the prison violates the Eighth Amendment when two requirements are 17 met: (1) the deprivation alleged is, objectively, sufficiently serious; and (2) the prison official is, 18 subjectively, deliberately indifferent to inmate health or safety. Farmer, 511 U.S. at 834. A prison 19 official is deliberately indifferent if he knows of and disregards an excessive risk to inmate health 20 or safety by failing to take reasonable steps to abate it. Id. at 837. 21 A prisoner may state a § 1983 claim under the Eighth Amendment against prison officials 22 only where the officials acted with “deliberate indifference” to the threat of serious harm or injury 23 to an inmate by another prisoner, Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986); see also 24 Valandingham v. Bojorquez, 866 F.2d 1135, 1138 (9th Cir. 1989) (deliberately spreading rumor 25 that prisoner is snitch may state claim for violation of right to be protected from violence while in 26 state custody), or by physical conditions at the prison. The official must both be aware of facts 27 from which the inference could be drawn that a substantial risk of serious harm exists, and he 28 must also draw the inference. Farmer, 511 U.S. at 837. Mere negligent failure to protect an 1 inmate from harm is not actionable under Section 1983. Id. at 835. 2 Here, Plaintiff alleges that Defendants Miller and Cassering knowingly transferred him 3 from HDSP to NKSP where he had documented enemies and was subsequently attacked. 4 Plaintiff also alleges that immediately upon his transfer he informed Defendant Soto of his 5 enemies, who failed to respond leading to the attack upon entry to the yard. Based on these 6 allegations, Plaintiff states a cognizable claim for relief against Defendants Miller, Cassering, and 7 Soto. 8 B. Liability of Supervisors 9 Plaintiff is attempting to sue Defendants Governor Newsom and Associate Warden 10 Waddle based solely upon their supervisory roles, he may not do so. Liability may not be 11 imposed on supervisory personnel for the actions or omissions of their subordinates under the 12 theory of respondeat superior. Iqbal, 556 U.S. at 676–77; Simmons v. Navajo Cty., Ariz., 609 13 F.3d 1011, 1020–21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 14 2009); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). 15 Supervisors may be held liable only if they “participated in or directed the violations, or 16 knew of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th 17 Cir. 1989); accord Starr v. Baca, 652 F.3d 1202, 1205–06 (9th Cir. 2011); Corales v. Bennett, 567 18 F.3d 554, 570 (9th Cir. 2009). “The requisite causal connection may be established when an 19 official sets in motion a ‘series of acts by others which the actor knows or reasonably should 20 know would cause others to inflict’ constitutional harms.” Corales, 567 F.3d at 570. 21 Supervisors may also be liable without any personal participation if an official 22 implemented “a policy so deficient that the policy itself is a repudiation of the constitutional 23 rights and is the moving force of the constitutional violation.” Redman v. Cty. of San Diego, 942 24 F.2d 1435, 1446 (9th Cir. 1991) (citations and quotations marks omitted), abrogated on other 25 grounds by Farmer v. Brennan, 511 U.S. 825 (1970). To prove liability for an action or policy, 26 the plaintiff “must ... demonstrate that his deprivation resulted from an official policy or custom 27 established by a ... policymaker possessed with final authority to establish that policy.” Waggy v. 28 Spokane Cty. Wash., 594 F.3d 707, 713 (9th Cir. 2010). When a defendant holds a supervisory 1 position, the causal link between such defendant and the claimed constitutional violation must be 2 specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 3 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations concerning the involvement 4 of supervisory personnel in civil rights violations are not sufficient. See Ivey v. Bd. of Regents, 5 673 F.2d 266, 268 (9th Cir. 1982). 6 Here, there is no allegation that either Governor Newsom or Associate Warden Waddle 7 were personally involved in or had specific knowledge of Plaintiff’s transfer from HDSP to 8 NKSP or the subsequent attack on him. Accordingly, Plaintiff fails to state a cognizable claim 9 against these Defendants and further leave to amend would be futile because Plaintiff has failed to 10 provide factual allegations to give rise to a claim for relief even after granting leave to amend. 11 See Klamath-Lake Pharm. Ass’n v. Klamath Med. Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir. 12 1983) (holding that while leave to amend shall be freely given, the court does not have to allow 13 futile amendments). 14 IV. 15 ORDER AND RECOMMENDATIONS 16 Based on the foregoing, it is HEREBY ORDERED that the Clerk of Court shall randomly 17 assign a District Judge to this action. 18 Further, it is HEREBY RECOMMENDED that: 19 1. This action proceed on Plaintiff’s failure to protect claim against 20 Defendants Miller, Cassering, and Soto; and 21 2. Defendants Governor Newsom and Associate Warden Waddle be dismissed from 22 the action for failure to state a cognizable claim for relief. 23 These Findings and Recommendations will be submitted to the United States District 24 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 25 (14) days after being served with these Findings and Recommendations, Plaintiff may file written 26 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 27 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 28 specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 1 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 2 3 IT IS SO ORDERED. □□ (Se 4 | Dated: _May 15, 2024 _ ; UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28