(PC) Marcel D. Ford v. Pitts

• Court: District Court, E.D. California
• Decided: March 23, 2023
• Docket: 1:22-cv-01065
• Status: Unknown

Opinion

8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

11 MARCEL D. FORD, Case No. 1:22-cv-01065-EPG (PC)

12 Plaintiff, FINDINGS AND RECOMMENDATIONS,

13 v. RECOMMENDING THAT THIS ACTION BE DISMISSED, WITH PREJUDICE, FOR 14 PITTS, FAILURE TO STATE A CLAIM

15 Defendant. (ECF No. 12) 16 OBJECTIONS, IF ANY, DUE WITHIN 17 TWENTY-ONE DAYS

18 ORDER DIRECTING CLERK TO ASSIGN DISTRICT JUDGE 19 20 Marcel Ford (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in 21 this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the complaint 22 commencing this action on July 7, 2022. (ECF No. 1). The case was transferred to the Eastern 23 District of California on August 23, 2022. (ECF Nos. 6 & 7). 24 On December 13, 2022, the Court screened Plaintiff’s complaint and found that it failed 25 to state any cognizable claims. (ECF No. 11). The Court gave Plaintiff thirty days to either: 26 “a. File a First Amended Complaint that is no longer than twenty pages (including exhibits); 27 or b. Notify the Court in writing that he wants to stand on his complaint.” (Id. at 12). 28 On December 29, 2022, Plaintiff filed his First Amended Complaint. (ECF No. 12). 1 Plaintiff alleges that he was in a drug infested unit, that defendant Pitts refused to transfer 2 Plaintiff from the unit, and that Plaintiff was assaulted by two inmates because he requested 3 and filed a grievance and a “Title(15).” 4 The Court has reviewed Plaintiff’s First Amended Complaint, and for the reasons 5 described in this order, will recommend that this action be dismissed for failure to state a claim. 6 Plaintiff has twenty-one days from the date of service of these findings and 7 recommendations to file his objections. 8 I. SCREENING REQUIREMENT 9 The Court is required to screen complaints brought by prisoners seeking relief against a 10 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 11 The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 12 legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or 13 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 14 § 1915A(b)(1), (2). As Plaintiff is proceeding in forma pauperis (ECF No. 9), the Court may 15 also screen the complaint under 28 U.S.C. § 1915. “Notwithstanding any filing fee, or any 16 portion thereof, that may have been paid, the court shall dismiss the case at any time if the court 17 determines that the action or appeal fails to state a claim upon which relief may be granted.” 18 28 U.S.C. § 1915(e)(2)(B)(ii). 19 A complaint is required to contain “a short and plain statement of the claim showing 20 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are 21 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 22 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 23 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A plaintiff must set forth “sufficient 24 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. 25 (quoting Twombly, 550 U.S. at 570). The mere possibility of misconduct falls short of meeting 26 this plausibility standard. Id. at 679. While a plaintiff’s allegations are taken as true, courts 27 “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 28 677, 681 (9th Cir. 2009) (citation and internal quotation marks omitted). Additionally, a 1 plaintiff’s legal conclusions are not accepted as true. Iqbal, 556 U.S. at 678. 2 Pleadings of pro se plaintiffs “must be held to less stringent standards than formal 3 pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that 4 pro se complaints should continue to be liberally construed after Iqbal). 5 II. SUMMARY OF PLAINTIFF’S FIRST AMENDED COMPLAINT 6 What follows is the Court’s best understanding of Plaintiff’s factual allegations in his 7 First Amended Complaint. 8 Plaintiff told/asked defendant Officer Pitts to move him to another unit many times 9 before he was attacked on October 10, 2020, by two inmates. The seventy-two pages of 10 exhibits are well noted and show that defendant Pitts was more than aware that Plaintiff wanted 11 to be moved from the dope and drug infested unit. However, Plaintiff did not and could not say 12 why he wanted to be moved. Staff are not at all trusting, nor are they trustworthy. 13 Any officer can move an inmate regardless of rank. Defendant Pitts’ failure to move 14 Plaintiff led to a serious disregard to his health and safety. 15 Additionally, defendant Pitts retaliated against Plaintiff for finding and submitting a 602 16 and a “Title(15).” Plaintiff showed a negative side of himself by yelling and screaming out of 17 his cell door for these two items. Defendant Pitts asked Plaintiff if he had been using drugs. 18 Plaintiff told defendant Pitts if he had used drugs it is because staff were the main individuals 19 bringing the drugs in. A week later, after filing a complaint, Plaintiff was brutally beaten by 20 two inmates. 21 Regardless of the brutal beating, Plaintiff asked to be moved three times. Plaintiff did 22 not want any part of the drug movement or use. An officer refused to move Plaintiff and he 23 was hurt badly a very short time later.1 24 \\\ 25 \\\ 26 \\\ 27 28 1 Plaintiff does not name this officer, but defendant Pitts is the only defendant listed in this action. (ECF No. 12, pgs. 3-4). 1 III. ANALYSIS OF PLAINTIFF’S FIRST AMENDED COMPLAINT 2 A. Section 1983 3 The Civil Rights Act under which this action was filed provides: 4 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes 5 to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities 6 secured by the Constitution and laws, shall be liable to the party injured in an 7 action at law, suit in equity, or other proper proceeding for redress.... 8 42 U.S.C. § 1983. “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely 9 provides ‘a method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 10 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see 11 also Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los 12 Angeles, 697 F.3d 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 13 2012); Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). 14 To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted 15 under color of state law, and (2) the defendant deprived him of rights secured by the 16 Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 17 2006); see also Marsh v. County of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing 18 “under color of state law”). A person deprives another of a constitutional right, “within the 19 meaning of § 1983, ‘if he does an affirmative act, participates in another’s affirmative act, or 20 omits to perform an act which he is legally required to do that causes the deprivation of which 21 complaint is made.’” Preschooler II v. Clark County Sch. Bd. of Trs., 479 F.3d 1175, 1183 22 (9th Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite 23 causal connection may be established when an official sets in motion a ‘series of acts by others 24 which the actor knows or reasonably should know would cause others to inflict’ constitutional 25 harms.” Preschooler II, 479 F.3d at 1183 (quoting Johnson, 588 F.2d at 743). This standard of 26 causation “closely resembles the standard ‘foreseeability’ formulation of proximate cause.” 27 Arnold v. Int’l Bus. Mach. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City 28 of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008). 1 A plaintiff must demonstrate that each named defendant personally participated in the 2 deprivation of his rights. Iqbal, 556 U.S. at 676-77. In other words, there must be an actual 3 connection or link between the actions of the defendants and the deprivation alleged to have 4 been suffered by the plaintiff. See Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 5 658, 691, 695 (1978). 6 B. Conditions of Confinement 7 “It is undisputed that the treatment a prisoner receives in prison and the conditions 8 under which [the prisoner] is confined are subject to scrutiny under the Eighth Amendment.” 9 Helling v. McKinney, 509 U.S. 25, 31 (1993); see also Farmer v. Brennan, 511 U.S. 825, 832 10 (1994). Conditions of confinement may, consistent with the Constitution, be restrictive and 11 harsh. See Rhodes v. Chapman, 452 U.S. 337, 347 (1981); Morgan v. Morgensen, 465 F.3d 12 1041, 1045 (9th Cir. 2006); Osolinski v. Kane, 92 F.3d 934, 937 (9th Cir. 1996); Jordan v. 13 Gardner, 986 F.2d 1521, 1531 (9th Cir. 1993) (en banc). Prison officials must, however, 14 provide prisoners with “food, clothing, shelter, sanitation, medical care, and personal safety.” 15 Toussaint v. McCarthy, 801 F.2d 1080, 1107 (9th Cir. 1986), abrogated in part on other 16 grounds by Sandin v. Connor, 515 U.S. 472 (1995); see also Johnson v. Lewis, 217 F.3d 726, 17 731 (9th Cir. 2000); Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982); Wright v. Rushen, 18 642 F.2d 1129, 1132-33 (9th Cir. 1981). 19 Two requirements must be met to show an Eighth Amendment violation. Farmer, 511 20 U.S. at 834. “First, the deprivation alleged must be, objectively, sufficiently serious.” Id. 21 (citation and internal quotation marks omitted). Second, “a prison official must have a 22 sufficiently culpable state of mind,” which for conditions of confinement claims “is one of 23 deliberate indifference.” Id. (citations and internal quotation marks omitted). Prison officials 24 act with deliberate indifference when they know of and disregard an excessive risk to inmate 25 health or safety. Id. at 837. The circumstances, nature, and duration of the deprivations are 26 critical in determining whether the conditions complained of are grave enough to form the basis 27 of a viable Eighth Amendment claim. Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2006). 28 Mere negligence on the part of a prison official is not sufficient to establish liability, but rather, 1 the official’s conduct must have been wanton. Farmer, 511 U.S. at 835; Frost v. Agnos, 152 2 F.3d 1124, 1128 (9th Cir. 1998). 3 “[F]ederal courts ought to afford appropriate deference and flexibility to state officials 4 trying to manage a volatile environment.” Sandin v. Conner, 515 U.S. 472, 483 (1995). “It is 5 well settled that the decision where to house inmates is at the core of prison administrators’ 6 expertise.” McKune v. Lile, 536 U.S. 24, 39 (2002). 7 Plaintiff alleges that he was in a dope and drug infested unit, that he asked to be moved 8 to another unit many times, and that the evidence shows that defendant Pitts was aware that 9 Plaintiff wanted to be moved. 10 The Court finds that Plaintiff fails to sufficiently allege that defendant Pitts knew of and 11 disregarded an excessive risk to Plaintiff’s health or safety. Plaintiff alleges, in a conclusory 12 fashion, that he was in a dope and drug infested unit, but he does not describe the conditions 13 that he was allegedly forced to live and stay in.2 Moreover, even if defendant Pitts was aware 14 that Plaintiff wanted to be moved from the unit, there are no allegations suggesting that 15 defendant Pitts was aware that the conditions on the unit posed an excessive risk to Plaintiff’s 16 health or safety. Plaintiff himself alleges that he did say why he wanted to be moved. 17 Accordingly, the Court finds that Plaintiff fails to state a conditions of confinement 18 claim against defendant Pitts. 19 C. Failure to Protect 20 To establish a failure to protect claim, a prisoner must establish that prison officials 21 were deliberately indifferent to a sufficiently serious threat to the prisoner’s safety. Farmer v. 22 Brennan, 511 U.S. 825, 837 (1994). “‘Deliberate indifference’ has both subjective and 23 objective components.” Labatad v. Corr. Corp. of Am., 714 F.3d 1155, 1160 (9th Cir. 2013). 24 A prisoner must show that “the official [knew] of and disregard[ed] an excessive risk to inmate 25

26 2 In the initial screening order, the Court identified this same deficiency in Plaintiff’s original complaint. 27 (ECF No. 11, pgs. 7-8) (“The Court finds that Plaintiff fails to state a conditions of confinement claim against defendant Pitts. Plaintiff alleges, in a conclusory fashion, that he was in a dope/drug infested unit and that the 28 conditions ‘shook’ him to his core. However, Plaintiff does not describe the conditions that he was allegedly forced to live and stay in….”). 1 ... safety; the official must both be aware of facts from which the inference could be drawn that 2 a substantial risk of serious harm exists, and [the official] must also draw the inference.” 3 Farmer, 511 U.S. at 837. “Liability may follow only if a prison official ‘knows that inmates 4 face a substantial risk of serious harm and disregards that risk by failing to take reasonable 5 measures to abate it.’” Labatad, 714 F.3d at 1160 (quoting Farmer, 511 U.S. at 847). 6 Plaintiff alleges that he told/asked defendant Officer Pitts to move him to another unit 7 many times before he was attacked on October 10, 2020, by two inmates, and that the evidence 8 shows that defendant Pitts was aware that Plaintiff wanted to be moved. 9 The Court finds that Plaintiff fails to state a failure to protect claim against defendant 10 Pitts. Even if defendant Pitts was aware that Plaintiff wanted to be moved from the unit, there 11 are no allegations suggesting that defendant Pitts was aware of a threat to Plaintiff’s safety yet 12 disregarded that risk. In fact, Plaintiff alleges that he did not say why he wanted to be moved. 13 D. Retaliation in Violation of the First Amendment 14 There are five basic elements to a First Amendment retaliation claim: “(1) An assertion 15 that a state actor took some adverse action against an inmate (2) because of (3) that prisoner’s 16 protected conduct, and that such action (4) chilled the inmate’s exercise of his First 17 Amendment rights, and (5) the action did not reasonably advance a legitimate correctional 18 goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted). 19 “‘[A] plaintiff who fails to allege a chilling effect may still state a claim if he alleges he 20 suffered some other harm,’ Brodheim, 584 F.3d at 1269, that is ‘more than minimal,’ Robinson, 21 408 F.3d at 568 n.11. That the retaliatory conduct did not chill the plaintiff from suing the 22 alleged retaliator does not defeat the retaliation claim at the motion to dismiss stage. Id. at 23 569.” Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) (alteration in original). 24 While prisoners have no freestanding right to a prison grievance process, see Ramirez v. 25 Galaza, 334 F.3d 850, 860 (9th Cir. 2003), “a prisoner’s fundamental right of access to the 26 courts hinges on his ability to access the prison grievance system,” Bradley v. Hall, 64 F.3d 27 1276, 1279 (9th Cir. 1995), overruled on other grounds by Shaw v. Murphy, 532 U.S. 223, 230 28 n.2 (2001). Because filing administrative grievances and initiating civil litigation are protected 1 activities, it is impermissible for prison officials to retaliate against prisoners for engaging in 2 these activities. Rhodes, 408 F.3d at 567. 3 Plaintiff alleges that defendant Pitts retaliated against him for finding and submitting a 4 602 and a “Title(15).” Plaintiff yelled and screamed out of his cell door for these two items. 5 Defendant Pitts asked Plaintiff if he had been using drugs. Plaintiff told defendant Pitts if he 6 had used drugs it is because staff were the main individuals bringing the drugs in. A week 7 later, after filing a complaint, Plaintiff was brutally beaten by two inmates. 8 The Court finds that Plaintiff fails to sufficiently allege that defendant Pitts took an 9 adverse action against Plaintiff because Plaintiff engaged in protected conduct. Plaintiff 10 appears to allege that he was attacked by inmates because he engaged in protected conduct. 11 However, it was not defendant Pitts who attacked Plaintiff, and there are no allegations, such as 12 anything the inmates or defendant Pitts said or did, connecting the alleged attack to defendant 13 Pitts. 14 Accordingly, the Court finds that Plaintiff fails to state a First Amendment retaliation 15 claim against defendant Pitts. 16 IV. CONCLUSION, RECOMMENDATIONS, AND ORDER 17 The Court recommends that this action be dismissed for failure to state a claim, without 18 granting Plaintiff further leave to amend. In the Court’s prior screening order, the Court 19 identified the deficiencies in Plaintiff’s complaint, provided Plaintiff with relevant legal 20 standards, and provided Plaintiff with an opportunity to amend his complaint. Plaintiff filed his 21 First Amended Complaint with the benefit of the Court’s screening order, but failed to cure the 22 deficiencies identified by the Court. Thus, it appears that further leave to amend would be 23 futile. 24 Accordingly, based on the foregoing, the Court HEREBY RECOMMENDS that: 25 1. This action be dismissed, with prejudice, for failure to state a claim; and 26 2. The Clerk of Court be directed to close this case. 27 These findings and recommendations will be submitted to the United States district 28 judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within 1 || twenty-one (21) days after being served with these findings and recommendations, Plaintiff 2 file written objections with the Court. The document should be captioned “Objections to 3 || Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 4 || objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 5 || Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 6 || (9th Cir. 1991)). 7 Additionally, IT IS ORDERED that the Clerk of Court is directed to assign a district 8 || judge to this case. 9 10 IT IS SO ORDERED. Dated: _Mareh 22, 2023 □□□ hey — 12 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28