1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN HARDNEY, No. 2:20-CV-01587-WBS-DMC-P 12 Plaintiff, 13 v. ORDER 14 R. DIAZ, et al., 15 Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. Pending before the Court is Plaintiff’s original complaint. See ECF No. 1. 19 The Court is required to screen complaints brought by prisoners seeking relief 20 against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 21 § 1915A(a). The Court must dismiss a complaint or portion thereof if it: (1) is frivolous or 22 malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief 23 from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover, 24 the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain 25 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This 26 means that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d 27 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the 28 complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon which it 1 rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because Plaintiff must allege 2 with at least some degree of particularity overt acts by specific defendants which support the 3 claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is 4 impossible for the Court to conduct the screening required by law when the allegations are vague 5 and conclusory. 6 7 I. PLAINTIFF’S ALLEGATIONS 8 Plaintiff, a California state prisoner, brings three claims variously alleging 9 violations of the First, Fourth, and Eighth Amendments to the United States Constitution. ECF 10 No. 1 at 1, 18, 24, 28. All alleged events occurred while Plaintiff was incarcerated at California 11 State Prison-Sacramento (“CSP-Sac”). See id. at 1. He names six defendants: (1) R. Diaz, the 12 former Secretary for the California Department of Corrections and Rehabilitation; (2) Hampton, a 13 correctional lieutenant at CSP-Sac; (3) Houghland, a correctional lieutenant at CSP-Sac; (4) R. 14 Meier, a CSP-Sac official; (5) Dr. K. Patel, a psychologist at CSP-Sac; and (6) Bullard, a 15 correctional sergeant at CSP-Sac. Id. at 10. 16 Each of Plaintiff’s claims extend from his accusations of sexual harassment 17 directed against Defendant Patel, and subsequent administrative proceedings arising from those 18 accusations. See id. at 18, 24, 28. Plaintiff alleges that, after a doctor’s appointment, he returned 19 to his cell to wash and change clothes. Id. at 11, 18. Defendant Patel stood roughly twenty yards 20 away in an adjacent dayroom alongside correctional officer Nunnery. Id. at 11, 19. Patel 21 allegedly stared into Plaintiff’s cell, watching him undress. Id. Plaintiff covered the cell’s 22 exterior window to block sunlight and darken the cell to cloak him from Patel’s gaze. Id. 23 Inmates are not permitted to cover cell door windows, however, and although the cell was dark, 24 Patel continued to stare. Id. at 11, 18–19. 25 A correctional sergeant later came to Plaintiff’s cell and escorted him to 26 administrative segregation. Id. The sergeant told Plaintiff that he was being assigned to 27 administrative segregation because Patel had made indecent exposure allegations against him. Id. 28 Plaintiff contends that Patel’s incident report states that she was standing in the dayroom and 1 noticed Plaintiff standing in his cell moving his arms below his waist. Id. at 12. She alleges that 2 Plaintiff stood naked on his toilet and exposed his penis. ECF No. 1 at 12. Accordingly, prison 3 officials accused Plaintiff of indecent exposure. Id. Plaintiff contends, nevertheless, that neither 4 his actions nor the factual allegations in Patel’s report fall within the scope of indecent exposure 5 regulations. Id. 6 Patel, according to Plaintiff, effectively admitted that Plaintiff’s actions did not 7 constitute indecent exposure during the hearing that followed her incident report. Id. Plaintiff 8 contends that Patel stated she had no way of knowing if Plaintiff was standing on the toilet and 9 that she was not positive what Plaintiff was doing. Id. Plaintiff suggests that Patel’s statement 10 means she assumed or was coached to say that Plaintiff exposed himself. Id. He also suggests 11 that Patel admitted to standing behind Officer Nunnery so that she could peer around him into 12 Plaintiff’s cell. Id. Plaintiff attempted to ask Patel about California regulations governing staff 13 sexual misconduct and whether it was reasonably necessary to invade Plaintiff’s privacy to 14 maintain safety and security. Id. at 13. Defendant Hampton, the hearing officer, disallowed the 15 questions, deeming them irrelevant. Id. Plaintiff contends Hampton was in error. Id. He also 16 maintains that Patel’s actions, and the consequent hearing against him, are symptomatic of 17 ongoing staff sexual misconduct (and the inaction of administrative officials to stop it) within the 18 California Department of Corrections and Rehabilitation. Id. He contends that “Defendants” or 19 “officials” are aware of continuing staff sexual abuse of inmates. Id. at 13, 20, 23. 20 Plaintiff was brought before the Institutional Classification Committee, chaired by 21 Defendant R. Meier. Id. at 14. Plaintiff asserts that Meier was adamant from the beginning of the 22 hearing that Plaintiff be placed in a pilot program at California State Prison-Corcoran (“CSP- 23 Corcoran”) for inmates with problems exposing themselves. Id. Plaintiff objected, stating that 24 female staff members routinely stare at inmates in their cells for personal and punitive purposes. 25 Id. Plaintiff also told Meier he had an upcoming court date in Sacramento and that he had 26 enemies and safety concerns at CSP-Corcoran. Id. Meier allegedly disregarded Plaintiff’s 27 objections and arbitrarily forced Plaintiff to be assigned to the pilot “IEX” program. Id. Meier’s 28 classification report assigning Plaintiff to the IEX program was allegedly fraudulent, containing 1 fabricated information and falsely stating that Plaintiff agreed to the program. Id. Plaintiff also 2 alleges Meier was aware of prison staff’s widespread sexual abuse of inmates. ECF No. 1 at 20. 3 Following Meier’s report assigning Plaintiff to the IEX program, Plaintiff became 4 suicidal. Id. at 15. Overwhelmed by “psychological abuse” at the hands of prison staff, he was 5 placed in the crisis unit on suicide watch. Id. Upon discharge from the crisis unit, Plaintiff was 6 returned to the administrative segregation unit to await transfer to CSP-Corcoran and the IEX 7 program. Id. Defendants Houghland1 and Bullard, alongside other correctional officers, came to 8 escort Plaintiff on his transfer date. Id. Plaintiff explained that he does not have an indecent 9 exposure problem. Id. at 16.
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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN HARDNEY, No. 2:20-CV-01587-WBS-DMC-P 12 Plaintiff, 13 v. ORDER 14 R. DIAZ, et al., 15 Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. Pending before the Court is Plaintiff’s original complaint. See ECF No. 1. 19 The Court is required to screen complaints brought by prisoners seeking relief 20 against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 21 § 1915A(a). The Court must dismiss a complaint or portion thereof if it: (1) is frivolous or 22 malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief 23 from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover, 24 the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain 25 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This 26 means that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d 27 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the 28 complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon which it 1 rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because Plaintiff must allege 2 with at least some degree of particularity overt acts by specific defendants which support the 3 claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is 4 impossible for the Court to conduct the screening required by law when the allegations are vague 5 and conclusory. 6 7 I. PLAINTIFF’S ALLEGATIONS 8 Plaintiff, a California state prisoner, brings three claims variously alleging 9 violations of the First, Fourth, and Eighth Amendments to the United States Constitution. ECF 10 No. 1 at 1, 18, 24, 28. All alleged events occurred while Plaintiff was incarcerated at California 11 State Prison-Sacramento (“CSP-Sac”). See id. at 1. He names six defendants: (1) R. Diaz, the 12 former Secretary for the California Department of Corrections and Rehabilitation; (2) Hampton, a 13 correctional lieutenant at CSP-Sac; (3) Houghland, a correctional lieutenant at CSP-Sac; (4) R. 14 Meier, a CSP-Sac official; (5) Dr. K. Patel, a psychologist at CSP-Sac; and (6) Bullard, a 15 correctional sergeant at CSP-Sac. Id. at 10. 16 Each of Plaintiff’s claims extend from his accusations of sexual harassment 17 directed against Defendant Patel, and subsequent administrative proceedings arising from those 18 accusations. See id. at 18, 24, 28. Plaintiff alleges that, after a doctor’s appointment, he returned 19 to his cell to wash and change clothes. Id. at 11, 18. Defendant Patel stood roughly twenty yards 20 away in an adjacent dayroom alongside correctional officer Nunnery. Id. at 11, 19. Patel 21 allegedly stared into Plaintiff’s cell, watching him undress. Id. Plaintiff covered the cell’s 22 exterior window to block sunlight and darken the cell to cloak him from Patel’s gaze. Id. 23 Inmates are not permitted to cover cell door windows, however, and although the cell was dark, 24 Patel continued to stare. Id. at 11, 18–19. 25 A correctional sergeant later came to Plaintiff’s cell and escorted him to 26 administrative segregation. Id. The sergeant told Plaintiff that he was being assigned to 27 administrative segregation because Patel had made indecent exposure allegations against him. Id. 28 Plaintiff contends that Patel’s incident report states that she was standing in the dayroom and 1 noticed Plaintiff standing in his cell moving his arms below his waist. Id. at 12. She alleges that 2 Plaintiff stood naked on his toilet and exposed his penis. ECF No. 1 at 12. Accordingly, prison 3 officials accused Plaintiff of indecent exposure. Id. Plaintiff contends, nevertheless, that neither 4 his actions nor the factual allegations in Patel’s report fall within the scope of indecent exposure 5 regulations. Id. 6 Patel, according to Plaintiff, effectively admitted that Plaintiff’s actions did not 7 constitute indecent exposure during the hearing that followed her incident report. Id. Plaintiff 8 contends that Patel stated she had no way of knowing if Plaintiff was standing on the toilet and 9 that she was not positive what Plaintiff was doing. Id. Plaintiff suggests that Patel’s statement 10 means she assumed or was coached to say that Plaintiff exposed himself. Id. He also suggests 11 that Patel admitted to standing behind Officer Nunnery so that she could peer around him into 12 Plaintiff’s cell. Id. Plaintiff attempted to ask Patel about California regulations governing staff 13 sexual misconduct and whether it was reasonably necessary to invade Plaintiff’s privacy to 14 maintain safety and security. Id. at 13. Defendant Hampton, the hearing officer, disallowed the 15 questions, deeming them irrelevant. Id. Plaintiff contends Hampton was in error. Id. He also 16 maintains that Patel’s actions, and the consequent hearing against him, are symptomatic of 17 ongoing staff sexual misconduct (and the inaction of administrative officials to stop it) within the 18 California Department of Corrections and Rehabilitation. Id. He contends that “Defendants” or 19 “officials” are aware of continuing staff sexual abuse of inmates. Id. at 13, 20, 23. 20 Plaintiff was brought before the Institutional Classification Committee, chaired by 21 Defendant R. Meier. Id. at 14. Plaintiff asserts that Meier was adamant from the beginning of the 22 hearing that Plaintiff be placed in a pilot program at California State Prison-Corcoran (“CSP- 23 Corcoran”) for inmates with problems exposing themselves. Id. Plaintiff objected, stating that 24 female staff members routinely stare at inmates in their cells for personal and punitive purposes. 25 Id. Plaintiff also told Meier he had an upcoming court date in Sacramento and that he had 26 enemies and safety concerns at CSP-Corcoran. Id. Meier allegedly disregarded Plaintiff’s 27 objections and arbitrarily forced Plaintiff to be assigned to the pilot “IEX” program. Id. Meier’s 28 classification report assigning Plaintiff to the IEX program was allegedly fraudulent, containing 1 fabricated information and falsely stating that Plaintiff agreed to the program. Id. Plaintiff also 2 alleges Meier was aware of prison staff’s widespread sexual abuse of inmates. ECF No. 1 at 20. 3 Following Meier’s report assigning Plaintiff to the IEX program, Plaintiff became 4 suicidal. Id. at 15. Overwhelmed by “psychological abuse” at the hands of prison staff, he was 5 placed in the crisis unit on suicide watch. Id. Upon discharge from the crisis unit, Plaintiff was 6 returned to the administrative segregation unit to await transfer to CSP-Corcoran and the IEX 7 program. Id. Defendants Houghland1 and Bullard, alongside other correctional officers, came to 8 escort Plaintiff on his transfer date. Id. Plaintiff explained that he does not have an indecent 9 exposure problem. Id. at 16. Houghland allegedly conducted a “mock” disciplinary hearing 10 outside Plaintiff’s cells, stated Plaintiff was guilty, and asked Plaintiff if there was another reason 11 that he would not leave his cell. Id. Sergeant Bullard then allegedly emptied an entire sixteen- 12 ounce canister of pepper spray into Plaintiff’s face. Id. Bullard and Houghland let Plaintiff 13 anguish for five minutes before decontaminating Plaintiff’s face with cold water. Id. The water 14 did not remove the pepper spray and Plaintiff’s face burned for the entirety of the five to six-hour 15 trip from CSP-Sac to CSP-Corcoran. Id. 16 On arrival at CSP-Corcoran, Plaintiff was again placed in the crisis unit before 17 being transferred to California Men’s Colony’s crisis unit where he remained for several weeks. 18 Id. at 17. Plaintiff alleges that he was never admitted to the IEX program, but instead transferred 19 back to CSP-Sac. Id. Houghland and Bullard wrote Plaintiff up on a rule violation report, 20 alleging that he obstructed a peace officer. Id. No redress came of Plaintiff’s exhausted 21 administrative remedies regarding Bullard’s alleged excessive use of force in spraying Plaintiff 22 with the pepper spray. Id. Plaintiff alleges that administrative staff continues to fail to address 23 Defendants’ abusive conduct. Id. 24 / / / 25
1 Plaintiff identifies a Lieutenant Holigan as the correctional officer who 26 accompanied Sergeant Bullard to transfer him to CSP-Corcoran. See id. at 15–16. No Lieutenant 27 Holigan, however, is named as a defendant, but a Lieutenant Houghland is. Id. at 1, 9. Plaintiff also uses the name Houghland alongside Bullard’s name in his third cause of action. Id. at 9, 28. 28 The Court accordingly assumes that Lieutenant Holigan is Lieutenant Houghland. 1 Plaintiff’s first cause of action asserts Patel, Meier, Diaz, and Hampton violated 2 the Fourth Amendment in failing to protect his right to privacy; namely, failing to protect or 3 redress Patel’s invasion of his privacy beyond any necessary measure to maintain security or 4 safety. Id. at 18–23. He also asserts that Defendants’ were deliberately indifferent in failing to 5 protect him from sexual misconduct (such as the unrestricted gaze of members of the opposite 6 sex), which rises to cruel and unusual punishment in violation of the Eighth Amendment. Id. 7 Plaintiff’s second claim asserts that Defendants Diaz, Hampton, and Meier further 8 violated the Eighth Amendment in disregarding that his conduct did not fall within indecent 9 exposure regulations, and falsifying (or failing to rectify) reports about Plaintiff’s alleged 10 indecent exposure and suitability for the IEX program. Id. at 24–28. Plaintiff also asserts that 11 Hampton, in deeming his interview questions to Patel irrelevant, violated his First Amendment 12 right to gather information to rebut the case against him. Id. at 24–27. He contends that Hampton 13 interfered with Plaintiff’s questions in an effort to punish him and retaliate against him for 14 opposing the indecent exposure charge and “investigating” staff sexual misconduct. Id. at 24, 27. 15 Plaintiff also alleges Diaz and Meier are responsible for the same First Amendment violation. Id. 16 at 24. 17 Finally, Plaintiff claims that Houghland and Bullard used unjustified, excessive 18 force against him when they transferred him to CSP-Corcoran, holding a mock disciplinary 19 hearing and pepper spraying him without cause. Id. 28–30. He asserts that the excessive force 20 constituted cruel and unusual punishment in violation of the Eighth Amendment. Id. at 28. 21 Plaintiff lists the allegedly false, unwarranted rules violation issued to him upon his return to 22 CSP-Sac as part of the conduct violating the Eighth Amendment. Id. 23 24 II. DISCUSSION 25 In his first cause of action, Plaintiff states cognizable Fourth Amendment and 26 Eighth Amendment claims against Defendant Patel for her alleged invasion of his privacy beyond 27 that necessary to maintain security or safety. He does not state a cognizable Fourth Amendment 28 or Eighth Amendment claim against Hampton or Meier for failure to protect him from Patel’s 1 conduct. Plaintiff’s second cause of action states an Eighth Amendment claim against 2 Defendants Hampton and Meier to the extent it alleges they knew of and were deliberately 3 indifferent to ongoing staff sexual misconduct. He also states a cognizable First Amendment 4 claim against Hampton and Meier to the extent he alleges they improperly interfered with the 5 classification process to retaliate against him for asking questions and highlighting staff sexual 6 abuse of inmates. Plaintiff’s third cause of action states a cognizable Eighth Amendment claim 7 against Houghland and Bullard for the use of unconstitutionally excessive force. None of 8 Plaintiff’s allegations against Defendant Diaz state a cognizable claim. The Court will grant 9 Plaintiff leave to amend. 10 A. Claims Against Defendant R. Diaz: 11 Plaintiff’s allegations do not establish any cognizable claim against Defendant 12 Diaz, both because they do not satisfy Federal Rule of Civil Procedure 8 and because there is no 13 allegation that Diaz knew of or directed unconstitutional conduct. 14 As to Rule 8, as discussed above, Rule 8 requires a complaint to contain a short 15 and plain statement of the claim. The Federal Rules of Civil Procedure do not require detailed 16 factual allegations, but vague and conclusory allegations of responsibility are insufficient. See 17 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 18 544, 555 (2007)). Plaintiff must allege with some degree of particularity overt acts by specific 19 defendants that support the claims, such that the complaint gives defendants fair notice of the 20 claims and the grounds on which they rest. See Kimes, 84 F.3d at 1129. “[A] complaint must 21 contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its 22 face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). “A claim has facial 23 plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable 24 inference that the defendant is liable for the misconduct alleged.” Id. Plaintiff merely concludes, 25 in stating his causes of action, that Diaz is among those defendants responsible for some alleged 26 unconstitutional conduct. See ECF No. 1 at 18, 24. Plaintiff does contend that “Defendants” 27 collectively are responsible for Patel’s invasion of his privacy, for failing to rectify Patel’s 28 actions, for interfering with his First Amendment rights to gather information at his classification 1 hearing, and generally for being deliberately indifferent to the cruel and unusual punishment 2 caused by the invasion of his privacy. But such broad, conclusory allegations do not allege with 3 adequate particularity any overt actions by Diaz that would support Plaintiff’s claims against him. 4 Furthermore, supervisory personnel are generally not liable under § 1983 for the 5 actions of their employees. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (holding that 6 there is no respondeat superior liability under § 1983). A supervisor is only liable for the 7 constitutional violations of subordinates if the supervisor participated in or directed the violations. 8 See id. The United States Supreme Court has rejected the notion that a supervisory defendant can 9 be liable based on knowledge and acquiescence in a subordinate’s unconstitutional conduct 10 because government officials, regardless of their title, can only be held liable under § 1983 for his 11 or her own conduct and not the conduct of others. See Ashcroft v. Iqbal, 556 U.S. 662, 676 12 (2009). Supervisory personnel who implement a policy so deficient that the policy itself is a 13 repudiation of constitutional rights and the moving force behind a constitutional violation may, 14 however, be liable even where such personnel do not overtly participate in the offensive act. See 15 Redman v. Cty. of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (en banc). 16 When a defendant holds a supervisory position, the causal link between such 17 defendant and the claimed constitutional violation must be specifically alleged. See Fayle v. 18 Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 19 1978). Vague and conclusory allegations concerning the involvement of supervisory personnel in 20 civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th 21 Cir. 1982). “[A] plaintiff must plead that each Government-official defendant, through the 22 official’s own individual actions, has violated the constitution.” Iqbal, 662 U.S. at 676. 23 Plaintiff’s complaint fails to allege a causal link between Diaz, either individually 24 or as CDCR Secretary, and the various alleged constitutional violations. Plaintiff’s vague 25 conclusion that Diaz is responsible for or is encompassed within the category of “Defendants” 26 who acted unconstitutionally, is insufficient. 27 / / / 28 / / / 1 B. Defects in Plaintiff’s First Cause of Action: 2 1. Fourth Amendment Failure to Protect Claims Against Hampton and Meier: 3 Prisoners do not have a Fourth Amendment right of privacy in their cells. See, 4 e.g., Hudson v. Palmer, 468 U.S. 517, 525–26 (1984); Somers v. Thurman, 109 F.3d 614, 617–18 5 (9th Cir. 1997); see also United States v. Ross, 771 F. App’x 345, 348 (9th Cir. 2019). Prisoners 6 do, however, retain a limited interest in bodily privacy and shielding themselves from being 7 observed while nude, particularly by members of the opposite sex. See, e.g., Byrd v. Maricopa 8 Cty. Bd. of Supervisors, 845 F.3d 919, 923 (2017); Michenfelder v. Sumner 860 F.2d 328, 333– 9 34 (9th Cir. 1988); cf. also Robino v. Iranon, 145 F.3d 1109, 1111 (9th Cir. 1998) (per curiam). 10 This right is not violated if guards only make casual observations of the prisoner or if the 11 observations are made from a distance. See Michenfelder, 860 F.2d at 334. 12 Defendant Patel’s connection to the alleged Fourth Amendment violation is 13 obvious. From a relatively close position, Patel allegedly made more than a casual observation of 14 Plaintiff while he was nude in his cell, staring for a prolonged period without any safety or 15 security justification and subsequently accusing him of indecent exposure. There are, 16 accordingly, adequate factual allegations for Plaintiff’s Fourth Amendment claim to proceed 17 against Patel. Outside of Hampton’s and Meier’s involvement in subsequent investigative and 18 classification hearings based on Patel’s, Plaintiff fails to allege how either Hampton or Meier is 19 connected to the underlying privacy violation. 20 Although law enforcement officials, such as police officers and correctional 21 officers, may be held liable for failure to intercede when fellow officers violate the constitutional 22 rights of a citizen or prisoner, liability attaches only if the officer in question had the opportunity 23 to intercede. See Cunningham v. Gates, 229 F.3d 1271, 1289–90 (9th Cir. 2000); Galvan v. City 24 of Vacaville, No. 2:18-cv-279-KJM-CKD, 2018 WL 4214896, at *2–3 (E.D. Cal. Sept. 15, 2018); 25 Melendez v. Hunt, NO. 1:13-cv-00279 AWI-BAM (PC), 2016 WL 5156469, at *11 (E.D. Cal. 26 Sept. 21, 2016); Freeland v. Sacramento City Police Dep’t, No. CIV S-06-0187 LKK DAD P., 27 2010 WL 408908, at *4–5, 14–15 (E.D. Cal. Jan. 29, 2010). Plaintiff, to his credit, states that 28 prison officials have failed to address a pattern of staff sexual impropriety. Nevertheless, he 1 makes no allegation that either Hampton or Meier knew of or could have interceded to prevent 2 Patel’s alleged sexual misconduct. He only concludes that they failed to protect him or correct 3 Patel’s actions after Patel’s alleged violation. Plaintiff thus fails to state a Fourth Amendment 4 claim against either Hampton or Meier. Cf. Freeland, 2016 WL 5156469, at *4–5, 14–15. 5 2. Eighth Amendment Failure to Protect Claims Against Hampton and Meier: 6 “The Eighth Amendment requires prison officials to take reasonable measures to 7 guarantee the safety of inmates, which has been interpreted to include a duty to protect prisoners.” 8 Labatad v. Corr. Corp. of Am., 714 F.3d 1155, 1160 (9th Cir. 2013) (citing Farmer v. Brennan, 9 511 U.S. 825, 832–33, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). That responsibility to protect 10 requires prison officials to protect prisoners from injury by other prisoners and from other 11 correctional officers. Farmer, 511 U.S. at 833–834; Cunningham, 229 F.3d at 1289; Melendez, 12 2016 WL 5156469, at *11. Inmates alleging that prison officials failed to protect their safety in 13 violation of the Eighth Amendment must show that officials acted with deliberate indifference to 14 a risk of serious harm or injury to the inmate. See Labatad, 714 F.3d at 1160. Deliberate 15 indifference entails both objective and subjective components; officials “must both be aware of 16 facts from which the inference could be drawn that a substantial risk of serious harm exists, and . . 17 must also draw the inference.” Farmer, 511 U.S. at 837. Liability attaches when prison official 18 “knows that inmates face a substantial risk of serious harm and disregards that risk by failing to 19 take reasonable measures to abate it.” See id. at 847. A prison official can only be held 20 responsible for a failure to intercede if he or she had a realistic opportunity to intercede and 21 elected not to do so. See Cunningham, 229 F.3d at 1289. 22 Plaintiff’s Eighth Amendment claim against Hampton and Meier in his first cause 23 of action fails for similar reasons as the Fourth Amendment claim. He makes no allegation that 24 either Hampton or Meier knew of or could have interceded to prevent Patel’s alleged 25 constitutional violation. He only concludes that they failed to protect him or correct Patel’s 26 actions after she allegedly stared into Plaintiff’s cell. Hampton and Meier can only be liable for 27 failure to intercede if they had a realistic opportunity to prevent Patel’s sexual misconduct. There 28 is no such allegation in Plaintiff’s complaint. The claim cannot proceed as alleged. 1 I. CONCLUSION 2 Because it is possible that the deficiencies identified in this order may be cured by 3 | amending the complaint, Plaintiff is entitled to leave to amend. See Lopez v. Smith, 203 F.3d 4 | 1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff is informed that, as a general rule, an 5 | amended complaint supersedes the original complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 6 1262 (9th Cir. 1992). Therefore, if Plaintiff amends the complaint, the Court cannot refer to the 7 | prior pleading in order to make Plaintiff's amended complaint complete. See Local Rule 220. An 8 | amended complaint must be complete in itself without reference to any prior pleading. See id. 9 If Plaintiff chooses to amend the complaint, Plaintiff must demonstrate how the 10 | conditions complained of have resulted in a deprivation of Plaintiffs constitutional rights. See 11 Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how 12 || each named defendant is involved, and must set forth some affirmative link or connection 13 || between each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d 14 | 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 15 Because the complaint appears to otherwise state cognizable claims, if no amended 16 | complaint is filed within the time allowed therefor, the Court will issue findings and 17 || recommendations that the claims identified herein as defective be dismissed, as well as such 18 | further orders as are necessary for service of process as to the cognizable claims. 19 Accordingly, IT IS HEREBY ORDERED that Plaintiff may file a first amended 20 | complaint within 30 days of the date of service of this order. 21 22 | Dated: November 2, 2020 Sx