1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DANIEL LEE THORNBERRY, No. 2:19-cv-0639-MCE-EFB P 12 Plaintiff, 13 v. ORDER 14 DAVID BAUGHMAN, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 18 U.S.C. § 1983. He has filed an application for leave to proceed in forma pauperis pursuant to 28 19 U.S.C. § 1915 (ECF No. 2). 20 Application to Proceed In Forma Pauperis 21 Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2). 22 Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect 23 and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C. 24 § 1915(b)(1) and (2). 25 Screening Standards 26 Federal courts must engage in a preliminary screening of cases in which prisoners seek 27 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 28 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 1 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which 2 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 3 relief.” Id. § 1915A(b). 4 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) 5 of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and 6 plain statement of the claim showing that the pleader is entitled to relief, in order to give the 7 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. 8 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). 9 While the complaint must comply with the “short and plaint statement” requirements of Rule 8, 10 its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 11 U.S. 662, 679 (2009). 12 To avoid dismissal for failure to state a claim a complaint must contain more than “naked 13 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of 14 action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of 15 a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 16 678. 17 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 18 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 19 content that allows the court to draw the reasonable inference that the defendant is liable for the 20 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 21 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 22 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the 23 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 24 Screening Order 25 Plaintiff alleges that in April 2017 he requested that the Institutional Classification 26 Committee (ICC) rescind his special needs yard designation so he could remain housed at 27 California State Prison, Sacramento. ECF No. 1 at 4. In considering plaintiff’s request, 28 defendant Warden Baughman allegedly stated, “I thought you didn’t like the way we treat 1 inmates here,” in reference to administrative appeals plaintiff had filed. Id. at 8. Baughman 2 allegedly agreed to release plaintiff to the A yard general population, but admonished plaintiff to 3 “stop filing 602s” and said that if he sees plaintiff on the yard in six months, he expects “to not 4 remember him.” Id. In the following months, plaintiff filed two staff complaints and two civil 5 rights lawsuits. Id. at 9. 6 A month or so later, plaintiff again convened with the ICC because of a conflict with his 7 cellmate. Id. at 10-11. Defendant Baughman issued a tentative decision to keep plaintiff housed 8 in the A facility. Id. at 11. However, on May 16, 2018, the ICC reconvened and in Baughman’s 9 absence, defendant Peterson decided that plaintiff should be transferred to the special needs yard 10 at Salinas Valley State Prison. Id. When plaintiff questioned Peterson’s reasoning for the 11 transfer, Peterson replied that plaintiff “had been trouble.” Id. at 12. Plaintiff asked defendant 12 supervising correctional counselor Percy to intervene, but she would not override Peterson’s 13 decision. Id. at 13-14. 14 Ultimately, Peterson did not transfer plaintiff to Salinas Valley State Prison, but to the 15 California Correctional Institution (CCI) instead. Id. at 14, 17. According to plaintiff, CCI is 16 “the most violent correctional facility for male SNY inmates . . . .” Id. at 14. Before the transfer 17 occurred, plaintiff again sought intervention from Percy, stating that he is gay, and that CCI 18 inmates are known for attacking such inmates. Id. at 15. Percy simply advised plaintiff that if he 19 had problems he could “always lock it up,” in an apparent reference to administrative segregation. 20 Id. On November 6, 2018, plaintiff was attacked by three inmates at CCI. 21 Plaintiff alleges that each of the defendants has violated his First Amendment right to be 22 free from retaliation and failed to protect him in violation of the Eighth Amendment. Id. at 16, 23 18, 19. As discussed below, plaintiff’s claims cannot survive screening. 24 Within the prison context, a viable claim of First Amendment retaliation entails five basic 25 elements: (1) An assertion that a state actor took some adverse action against an inmate (2) 26 because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate’s 27 exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate 28 correctional goal. Rhodes v. Robinson, 408 F.3d 559, 567-568 (9th Cir. 2005). As for defendant 1 Baughman, there is no allegation showing that he took any adverse action against plaintiff. To 2 the contrary, the allegations show that defendant Baughman decided to keep plaintiff housed in 3 the general population at California State Prison, Sacramento, exactly where plaintiff wanted to 4 be. As for defendants Peterson and Percy, there are no allegations showing that their decisions 5 were motived by, i.e., “because of,” plaintiff’s protected conduct. Peterson’s statement that 6 plaintiff had “been trouble” may very likely have been a reference to the conflict plaintiff had 7 with his cellmate. It is not clear from the allegations whether Percy was even aware of plaintiff’s 8 administrative appeals or lawsuits. Thus, plaintiff’s allegation that he was transferred to CCI 9 because of his protected conduct is entirely speculative. 10 Plaintiff’s allegations also fail to state an Eighth Amendment claim.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DANIEL LEE THORNBERRY, No. 2:19-cv-0639-MCE-EFB P 12 Plaintiff, 13 v. ORDER 14 DAVID BAUGHMAN, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 18 U.S.C. § 1983. He has filed an application for leave to proceed in forma pauperis pursuant to 28 19 U.S.C. § 1915 (ECF No. 2). 20 Application to Proceed In Forma Pauperis 21 Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2). 22 Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect 23 and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C. 24 § 1915(b)(1) and (2). 25 Screening Standards 26 Federal courts must engage in a preliminary screening of cases in which prisoners seek 27 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 28 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 1 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which 2 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 3 relief.” Id. § 1915A(b). 4 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) 5 of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and 6 plain statement of the claim showing that the pleader is entitled to relief, in order to give the 7 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. 8 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). 9 While the complaint must comply with the “short and plaint statement” requirements of Rule 8, 10 its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 11 U.S. 662, 679 (2009). 12 To avoid dismissal for failure to state a claim a complaint must contain more than “naked 13 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of 14 action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of 15 a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 16 678. 17 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 18 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 19 content that allows the court to draw the reasonable inference that the defendant is liable for the 20 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 21 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 22 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the 23 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 24 Screening Order 25 Plaintiff alleges that in April 2017 he requested that the Institutional Classification 26 Committee (ICC) rescind his special needs yard designation so he could remain housed at 27 California State Prison, Sacramento. ECF No. 1 at 4. In considering plaintiff’s request, 28 defendant Warden Baughman allegedly stated, “I thought you didn’t like the way we treat 1 inmates here,” in reference to administrative appeals plaintiff had filed. Id. at 8. Baughman 2 allegedly agreed to release plaintiff to the A yard general population, but admonished plaintiff to 3 “stop filing 602s” and said that if he sees plaintiff on the yard in six months, he expects “to not 4 remember him.” Id. In the following months, plaintiff filed two staff complaints and two civil 5 rights lawsuits. Id. at 9. 6 A month or so later, plaintiff again convened with the ICC because of a conflict with his 7 cellmate. Id. at 10-11. Defendant Baughman issued a tentative decision to keep plaintiff housed 8 in the A facility. Id. at 11. However, on May 16, 2018, the ICC reconvened and in Baughman’s 9 absence, defendant Peterson decided that plaintiff should be transferred to the special needs yard 10 at Salinas Valley State Prison. Id. When plaintiff questioned Peterson’s reasoning for the 11 transfer, Peterson replied that plaintiff “had been trouble.” Id. at 12. Plaintiff asked defendant 12 supervising correctional counselor Percy to intervene, but she would not override Peterson’s 13 decision. Id. at 13-14. 14 Ultimately, Peterson did not transfer plaintiff to Salinas Valley State Prison, but to the 15 California Correctional Institution (CCI) instead. Id. at 14, 17. According to plaintiff, CCI is 16 “the most violent correctional facility for male SNY inmates . . . .” Id. at 14. Before the transfer 17 occurred, plaintiff again sought intervention from Percy, stating that he is gay, and that CCI 18 inmates are known for attacking such inmates. Id. at 15. Percy simply advised plaintiff that if he 19 had problems he could “always lock it up,” in an apparent reference to administrative segregation. 20 Id. On November 6, 2018, plaintiff was attacked by three inmates at CCI. 21 Plaintiff alleges that each of the defendants has violated his First Amendment right to be 22 free from retaliation and failed to protect him in violation of the Eighth Amendment. Id. at 16, 23 18, 19. As discussed below, plaintiff’s claims cannot survive screening. 24 Within the prison context, a viable claim of First Amendment retaliation entails five basic 25 elements: (1) An assertion that a state actor took some adverse action against an inmate (2) 26 because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate’s 27 exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate 28 correctional goal. Rhodes v. Robinson, 408 F.3d 559, 567-568 (9th Cir. 2005). As for defendant 1 Baughman, there is no allegation showing that he took any adverse action against plaintiff. To 2 the contrary, the allegations show that defendant Baughman decided to keep plaintiff housed in 3 the general population at California State Prison, Sacramento, exactly where plaintiff wanted to 4 be. As for defendants Peterson and Percy, there are no allegations showing that their decisions 5 were motived by, i.e., “because of,” plaintiff’s protected conduct. Peterson’s statement that 6 plaintiff had “been trouble” may very likely have been a reference to the conflict plaintiff had 7 with his cellmate. It is not clear from the allegations whether Percy was even aware of plaintiff’s 8 administrative appeals or lawsuits. Thus, plaintiff’s allegation that he was transferred to CCI 9 because of his protected conduct is entirely speculative. 10 Plaintiff’s allegations also fail to state an Eighth Amendment claim. Under the Eighth 11 Amendment “prison officials have a duty to protect prisoners from violence at the hands of other 12 prisoners.” Farmer v. Brennan, 511 U.S. 825, 833 (1994) (internal quotation marks, ellipsis, and 13 citation omitted). To show a violation, plaintiff must allege facts sufficient to support a claim that 14 prison officials knew of and disregarded a substantial risk of serious harm. See id. at 844, 847 15 (“A prison official’s duty under the Eighth Amendment is to ensure ‘reasonable safety,’ . . . .”). 16 Plaintiff’s broad concerns about anti-gay inmates and unspecified enemies throughout the State’s 17 entire special needs yard system is not enough to demonstrate that his transfer to CCI posed an 18 “identifiable serious risk” of harm. See Davis v. Scott, 94 F.3d 444, 446-47 (9th Cir. 1996) 19 (“vague and unsubstantiated” allegation that “friends of [plaintiff’s] departed enemies remained 20 [in general population] and might try to harm him if he were released” from protective custody 21 established “no solid evidence . . . of an identifiable serious risk to [his] safety” under Farmer); 22 Dixon v. Lavin, 234 F. App’x 814, 815 (9th Cir. 2007) (plaintiff’s allegation that “he would be at 23 risk when returned to a general population yard if other inmates learned he had been on a Special 24 Needs Yard [was] too speculative to support a claim that defendants were deliberately indifferent 25 to his safety when they recommended he be placed on the SNY.”). Moreover, “a prisoner does 26 not have a constitutional right to be housed at a particular institution, [or] to receive a particular 27 security classification.” Neal v. Shimoda, 131 F.3d 818, 828 (9th Cir. 1997) (citations omitted). 28 For these reasons, the complaint fails to state a claim for violation of the Eighth Amendment. 1 Leave to Amend 2 Plaintiff will be granted leave to file an amended complaint, if he can allege a cognizable 3 legal theory against a proper defendant and sufficient facts in support of that cognizable legal 4 theory. Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (district courts must 5 afford pro se litigants an opportunity to amend to correct any deficiency in their complaints). 6 Should plaintiff choose to file an amended complaint, the amended complaint shall clearly set 7 forth the claims and allegations against each defendant. 8 Any amended complaint must not exceed the scope of this order and may not add new, 9 unrelated claims. Further, any amended complaint must cure the deficiencies identified above 10 and also adhere to the following requirements: 11 Any amended complaint must identify as a defendant only persons who personally 12 participated in a substantial way in depriving him of a federal constitutional right. Johnson v. 13 Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a 14 constitutional right if he does an act, participates in another’s act or omits to perform an act he is 15 legally required to do that causes the alleged deprivation). It must also contain a caption 16 including the names of all defendants. Fed. R. Civ. P. 10(a). 17 Any amended complaint must be written or typed so that it so that it is complete in itself 18 without reference to any earlier filed complaint. L.R. 220. This is because an amended 19 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 20 earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 21 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter 22 being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 23 1967)). 24 Finally, the court cautions plaintiff that failure to comply with the Federal Rules of Civil 25 Procedure, this court’s Local Rules, or any court order may result in this action being dismissed. 26 See Local Rule 110. 27 ///// 28 ///// 1 Conclusion 2 Accordingly, IT IS HEREBY ORDERED that: 3 1. Plaintiff’s request to proceed in forma pauperis (ECF No. 2) is granted. 4 2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected 5 in accordance with the notice to the California Department of Corrections and 6 Rehabilitation filed concurrently herewith. 7 3. The complaint is dismissed with leave to amend within 30 days. 8 4. Failure to file an amended complaint that complies with this order may result in the 9 dismissal of this action for the reasons stated herein. 10 | DATED: December 19, 2019. i tid, PDEA Db EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28