1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 SEKOU KWANE THOMPSON, Case No. 23-cv-05079-HSG
8 Plaintiff, ORDER SCREENING FIRST AMENDED COMPLAINT; GRANTING 9 v. LEAVE TO AMEND ONE CLAIM; DENYING REQUEST FOR COUNSEL 10 KATHLEEN ALLISON, et al., Re: Dkt. Nos. 12, 13 11 Defendants.
12 13 Plaintiff, a prisoner currently housed at Correctional Training Facility (“CTF”), has filed a 14 pro se action pursuant to 42 U.S.C. § 1983. His amended complaint (Dkt. No. 12) is now before 15 the Court for review pursuant to 28 U.S.C. § 1915A. This order also addresses Plaintiff’s request 16 for appointment of counsel. Dkt. No. 13. 17 DISCUSSION 18 A. Standard of Review 19 A federal court must conduct a preliminary screening in any case in which a prisoner seeks 20 redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 21 § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims 22 that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 23 monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), 24 (2). Pro se pleadings must, however, be liberally construed. See United States v. Qazi, 975 F.3d 25 989, 993 (9th Cir. 2020). 26 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 27 claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Specific facts are not 1 grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted). 2 While Rule 8 does not require detailed factual allegations, it demands more than an unadorned, 3 the-defendant-unlawfully-harmed-me accusation. Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009). 4 A pleading that offers only labels and conclusions, or a formulaic recitation of the elements of a 5 cause of action, or naked assertions devoid of further factual enhancement does not suffice. Id. 6 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: 7 (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that 8 the alleged violation was committed by a person acting under the color of state law. See West v. 9 Atkins, 487 U.S. 42, 48 (1988). 10 B. Procedural History 11 The initial complaint named as defendants California Department of Corrections and 12 Rehabilitations (“CDCR”) director Kathleen Allison; Correctional Training Facility (“CTF”) 13 wardens Louis Martinez and Craig Koeing; CTF facility captains J. Ortega, and T. Mak; CTF 14 correctional counselors A. Esparaza and M. Creamer; and CTF classification staff representative 15 A. Hernandez. The initial complaint alleged that in 2021, defendants Ortega, Esparza, Hernandez, 16 Mak, and Cramer approved Plaintiff for an adverse transfer to a higher security level facility; on 17 October 4, 2021, an unnamed prison official moved into Plaintiff’s cell a known violent level II 18 inmate who had recently fought another cellmate; and that, shortly thereafter, Plaintiff was 19 viciously attacked by the cellmate. See generally Dkt. No. 5. The Court dismissed defendants 20 Allison, Martinez and Koenig because the complaint made no claims against them. The Court 21 also found that the initial complaint failed to state an Eighth Amendment claim for deliberate 22 indifference to inmate safety against defendants Ortega, Mak, Esparza, Creamer, and Hernandez 23 because, outside of the general allegation that Level I inmates should not be housed in Level II 24 housing, the initial complaint did not explain how defendants Ortega, Mak, Esparza, Creamer, and 25 Hernandez knew that housing Plaintiff in CTF’s Level II housing exposed Plaintiff to an excessive 26 risk to his safety. The Court granted Plaintiff leave to file an amended complaint to correct these 27 deficiencies. See generally Dkt. No. 11. 1 C. Amended Complaint 2 The amended complaint again names as defendants former Correctional Training Facility 3 (“CTF”) warden Craig Koeing, CTF facility captains J. Ortega, and T. Mak; CTF correctional 4 counselors A. Esparaza and M. Creamer; and CTF classification staff representative A. 5 Hernandez. The amended complaint adds as defendants former California Department of 6 Corrections and Rehabilitations (“CDCR”) director Connie Gipson, and a John Doe CTF prison 7 official. The amended complaint no longer names as defendants CDCR director Allison or CTF 8 warden Louis Martinez. 9 The amended complaint makes the following allegations. On June 30, 2021, Plaintiff was 10 seen by defendants Ortega and Esparza for a Unit Classification Committee (“UCC”) meeting 11 regarding transfer consideration due to Facility D’s anticipated closure, and was informed that he 12 would be transferred to CTF’s Level II Non-Designated Programming Facility (“NDPF”), and that 13 refusal to comply with the transfer could result in disciplinary action and/or placement in a more 14 restrictive level of housing. Plaintiff objected to the transfer and requested that he be transferred 15 to another Level I facility, which he stated would be consistent with Departmental needs, safety 16 and security, his placement scores, and “administrative determinants.” Despite his objections, 17 Plaintiff was transferred to CTF’s Level II NDPF. On September 29, 2021, during his 18 classification committee hearing, Plaintiff reiterated to defendants Mak and Creamer his request 19 that he be transferred to a Level I housing unit, due to his safety concerns. Defendant Hernandez 20 approved Plaintiff’s transfer to a Level II NDPF, despite Plaintiff’s repeated statements that he 21 was concerned for his safety on a Level II facility and Plaintiff’s central file indicating his Level I 22 status. Defendants Gipson and Koenig made a policy change three years ago that constituted 23 deliberate indifference to Plaintiff’s safety because the change “ran afoul of rulemaking 24 procedures and introduced the potential for violence;” and because the change did not follow the 25 State Administrative Procedures Act. An unidentified prison official moved a known violent 26 Level II individual into Plaintiff’s cell, and Plaintiff was later attacked by this inmate. See 27 generally Dkt. No. 12. 1 The amended complaint fails to state an Eighth Amendment claim with respect to 2 Plaintiff’s placement in a Level II facility. The Eighth Amendment requires that prison officials 3 take reasonable measures to guarantee the safety of prisoners. Farmer v. Brennan, 511 U.S. 825, 4 832 (1994). The failure of prison officials to protect inmates from dangerous conditions at the 5 prison violates the Eighth Amendment when two requirements are met: (1) the deprivation alleged 6 is, objectively, sufficiently serious; and (2) the prison official is, subjectively, deliberately 7 indifferent to inmate health or safety. Farmer, 511 U.S. at 834.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 SEKOU KWANE THOMPSON, Case No. 23-cv-05079-HSG
8 Plaintiff, ORDER SCREENING FIRST AMENDED COMPLAINT; GRANTING 9 v. LEAVE TO AMEND ONE CLAIM; DENYING REQUEST FOR COUNSEL 10 KATHLEEN ALLISON, et al., Re: Dkt. Nos. 12, 13 11 Defendants.
12 13 Plaintiff, a prisoner currently housed at Correctional Training Facility (“CTF”), has filed a 14 pro se action pursuant to 42 U.S.C. § 1983. His amended complaint (Dkt. No. 12) is now before 15 the Court for review pursuant to 28 U.S.C. § 1915A. This order also addresses Plaintiff’s request 16 for appointment of counsel. Dkt. No. 13. 17 DISCUSSION 18 A. Standard of Review 19 A federal court must conduct a preliminary screening in any case in which a prisoner seeks 20 redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 21 § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims 22 that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 23 monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), 24 (2). Pro se pleadings must, however, be liberally construed. See United States v. Qazi, 975 F.3d 25 989, 993 (9th Cir. 2020). 26 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 27 claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Specific facts are not 1 grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted). 2 While Rule 8 does not require detailed factual allegations, it demands more than an unadorned, 3 the-defendant-unlawfully-harmed-me accusation. Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009). 4 A pleading that offers only labels and conclusions, or a formulaic recitation of the elements of a 5 cause of action, or naked assertions devoid of further factual enhancement does not suffice. Id. 6 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: 7 (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that 8 the alleged violation was committed by a person acting under the color of state law. See West v. 9 Atkins, 487 U.S. 42, 48 (1988). 10 B. Procedural History 11 The initial complaint named as defendants California Department of Corrections and 12 Rehabilitations (“CDCR”) director Kathleen Allison; Correctional Training Facility (“CTF”) 13 wardens Louis Martinez and Craig Koeing; CTF facility captains J. Ortega, and T. Mak; CTF 14 correctional counselors A. Esparaza and M. Creamer; and CTF classification staff representative 15 A. Hernandez. The initial complaint alleged that in 2021, defendants Ortega, Esparza, Hernandez, 16 Mak, and Cramer approved Plaintiff for an adverse transfer to a higher security level facility; on 17 October 4, 2021, an unnamed prison official moved into Plaintiff’s cell a known violent level II 18 inmate who had recently fought another cellmate; and that, shortly thereafter, Plaintiff was 19 viciously attacked by the cellmate. See generally Dkt. No. 5. The Court dismissed defendants 20 Allison, Martinez and Koenig because the complaint made no claims against them. The Court 21 also found that the initial complaint failed to state an Eighth Amendment claim for deliberate 22 indifference to inmate safety against defendants Ortega, Mak, Esparza, Creamer, and Hernandez 23 because, outside of the general allegation that Level I inmates should not be housed in Level II 24 housing, the initial complaint did not explain how defendants Ortega, Mak, Esparza, Creamer, and 25 Hernandez knew that housing Plaintiff in CTF’s Level II housing exposed Plaintiff to an excessive 26 risk to his safety. The Court granted Plaintiff leave to file an amended complaint to correct these 27 deficiencies. See generally Dkt. No. 11. 1 C. Amended Complaint 2 The amended complaint again names as defendants former Correctional Training Facility 3 (“CTF”) warden Craig Koeing, CTF facility captains J. Ortega, and T. Mak; CTF correctional 4 counselors A. Esparaza and M. Creamer; and CTF classification staff representative A. 5 Hernandez. The amended complaint adds as defendants former California Department of 6 Corrections and Rehabilitations (“CDCR”) director Connie Gipson, and a John Doe CTF prison 7 official. The amended complaint no longer names as defendants CDCR director Allison or CTF 8 warden Louis Martinez. 9 The amended complaint makes the following allegations. On June 30, 2021, Plaintiff was 10 seen by defendants Ortega and Esparza for a Unit Classification Committee (“UCC”) meeting 11 regarding transfer consideration due to Facility D’s anticipated closure, and was informed that he 12 would be transferred to CTF’s Level II Non-Designated Programming Facility (“NDPF”), and that 13 refusal to comply with the transfer could result in disciplinary action and/or placement in a more 14 restrictive level of housing. Plaintiff objected to the transfer and requested that he be transferred 15 to another Level I facility, which he stated would be consistent with Departmental needs, safety 16 and security, his placement scores, and “administrative determinants.” Despite his objections, 17 Plaintiff was transferred to CTF’s Level II NDPF. On September 29, 2021, during his 18 classification committee hearing, Plaintiff reiterated to defendants Mak and Creamer his request 19 that he be transferred to a Level I housing unit, due to his safety concerns. Defendant Hernandez 20 approved Plaintiff’s transfer to a Level II NDPF, despite Plaintiff’s repeated statements that he 21 was concerned for his safety on a Level II facility and Plaintiff’s central file indicating his Level I 22 status. Defendants Gipson and Koenig made a policy change three years ago that constituted 23 deliberate indifference to Plaintiff’s safety because the change “ran afoul of rulemaking 24 procedures and introduced the potential for violence;” and because the change did not follow the 25 State Administrative Procedures Act. An unidentified prison official moved a known violent 26 Level II individual into Plaintiff’s cell, and Plaintiff was later attacked by this inmate. See 27 generally Dkt. No. 12. 1 The amended complaint fails to state an Eighth Amendment claim with respect to 2 Plaintiff’s placement in a Level II facility. The Eighth Amendment requires that prison officials 3 take reasonable measures to guarantee the safety of prisoners. Farmer v. Brennan, 511 U.S. 825, 4 832 (1994). The failure of prison officials to protect inmates from dangerous conditions at the 5 prison violates the Eighth Amendment when two requirements are met: (1) the deprivation alleged 6 is, objectively, sufficiently serious; and (2) the prison official is, subjectively, deliberately 7 indifferent to inmate health or safety. Farmer, 511 U.S. at 834. A prison official is deliberately 8 indifferent if he knows of and disregards an excessive risk to inmate health or safety by failing to 9 take reasonable steps to abate it. Id. at 837. The official must both be aware of facts from which 10 the inference could be drawn that a substantial risk of serious harm exists, and he must also draw 11 that inference. See id. at 837. Similar to the initial complaint, the amended complaint’s Eighth 12 Amendment claim relies solely on the conclusory allegation that Plaintiff cannot be safely housed 13 in a Level II facility because he is a Level I inmate. Conclusory allegations are insufficient to 14 state a Section 1983 claim upon which relief can be granted. See Ashcroft, 556 U.S. at 664. The 15 “policy change” and related housing transfer that Plaintiff is challenging appears to be the 16 CDCR’s decision to merge CTF’s Level I and Level II sensitive needs yards (“SNY”) prisoners 17 (also referred to as protective custody prisoners) with CTF’s Level I and Level II general 18 population (“GP”) prisoners, and house them together on Non-Designated Programming Facilities 19 (“NDPF”). Courts have already rejected the claim that this merger violated the Eighth 20 Amendment’s prohibition on deliberate indifference to inmate safety. See Cruz v. Diaz, No. 19- 21 CV-01974-JST, 2022 WL 20184653, at *14-*17 (N.D. Cal. July 25, 2022) (holding that CTF’s 22 merger of Level I and Level II SNY prisoners and GP prisoners did not violate the Eighth 23 Amendment) (“Consolidated Plaintiffs have presented neither colorable evidence that they face a 24 substantial risk to their safety if housed on a NDPF, nor that there is an obvious risk to their safety. 25 Thomas, 611 F.3d at 1150-51. Even if Defendants had been aware of a substantial risk of serious 26 harm to Consolidated Plaintiffs (or other GP inmates), Defendants have shown that they took steps 27 to abate the risk of harm and that they were reasonably justified in continuing with converting 1 prejudice Plaintiff’s Eighth Amendment claims arising out of his allegation that he should not 2 have been housed on an NDPF or on a Level II facility because of his Level I classification. As 3 these are the only claims against defendants Gipson, Koenig, Ortega, Mak, Creamer, Esparza, and 4 Hernandez, these defendants are DISMISSED from this action with prejudice. 5 However, the amended complaint’s allegation that a prison official deliberately housed 6 Plaintiff with an inmate known to be violent possibly states an Eighth Amendment claim for 7 deliberate indifference to inmate safety. But this action cannot proceed solely against a Doe 8 defendant, in part because it is effectively impossible for the United States Marshal to serve a Doe 9 defendant and without service, this case cannot move forward. See Gillespie v. Civiletti, 629 F.2d 10 637, 642 (9th Cir. 1980) (use of “John Doe” to identify a defendant is not favored in the Ninth 11 Circuit). The Court GRANTS Plaintiff leave to file a second amended complaint identifying by 12 name the individual prison official who allegedly violated his federal rights by housing him with 13 an inmate known to be violent. Plaintiff may be able to obtain the names of these individuals by 14 accessing his classification records or using the CDCR Form 22. In preparing a second amended 15 complaint, Plaintiff should keep in mind the elements of an Eighth Amendment claim and allege 16 sufficient factual allegations from which it can be reasonably inferred that the defendant was 17 aware of facts from which the inference could be drawn that Plaintiff faced a substantial risk of 18 serious harm, and the defendant drew such an inference. 19 D. Request for Appointment of Counsel (Dkt. No. 13) 20 Plaintiff requests that the Court appoint him counsel, arguing that counsel is needed 21 because he is unable to afford counsel; he has been granted leave to proceed in forma pauperis; his 22 imprisonment greatly limits his ability to litigate; the issues in this case are complex and will 23 require substantial research and investigation; Plaintiff has limited access to the law library and 24 limited knowledge of the law; and a trial would involve conflicting testimony and counsel would 25 be better enable Plaintiff to present evidence and cross-examine witnesses. See generally Dkt. No. 26 13. There is no constitutional right to counsel in a civil case unless an indigent litigant may lose 27 his physical liberty if he loses the litigation. See Lassiter v. Dep’t of Social Svcs., 452 U.S. 18, 25 1 U.S.C. § 1915(e)(1). Appointing counsel is within the court’s discretion and is granted only in 2 exceptional circumstances. Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (referring 3 to 28 U.S.C. § 1915(d), which was subsequently renumbered to 28 U.S.C. § 1915(e)(1)). A 4 finding of “exceptional circumstances” requires an evaluation of the likelihood of the plaintiff’s 5 success on the merits and an evaluation of the plaintiff’s ability to articulate his claims pro se in 6 light of the complexity of the legal issues involved. See Agyeman v. Corrections Corp. of 7 America, 390 F.3d 1101, 1103 (9th Cir. 2004). Both of these factors must be viewed together 8 before reaching a decision on a request for counsel under § 1915. See id. At this stage of the 9 action, it is unclear that Plaintiff will succeed on the merits as there is currently no operative 10 complaint. The request for appointment of counsel is therefore DENIED for lack of exceptional 11 circumstances without prejudice to the Court sua sponte appointing counsel in the future should 12 the circumstances so require. Dkt. No. 13. 13 CONCLUSION 14 For the foregoing reasons, the Court orders as follows. 15 1. The Court DISMISSES with prejudice Plaintiff’s Eighth Amendment claims 16 arising out of his allegation that he should not have been housed on an NDPF or on a Level II 17 facility because of his Level I classification; and dismisses defendants Gipson, Koenig, Ortega, 18 Mak, Creamer, Esparza, and Hernandez from this action because these are the only claims against 19 these defendants. 20 2. The Court DISMISSES the Eighth Amendment claim that a prison official 21 deliberately housed Plaintiff with an inmate known to be violent because this action cannot 22 proceed solely against a Doe defendant. The Court GRANTS Plaintiff leave to file a second 23 amended complaint naming this prison official. 24 3. Within twenty-eight (28) days of the date of this order, Plaintiff shall file a second 25 amended complaint in accordance with the instructions in this order. The second amended 26 complaint must include the caption and civil case number used in this order, Case No. 23-05079 27 HSG (PR) and the words “SECOND AMENDED COMPLAINT” on the first page. If using the 1 proceed. An amended complaint completely replaces the previous complaints. See Lacey v. 2 || Maricopa Cty., 693 F.3d 896, 925 (9th Cir. 2010). Accordingly, Plaintiff must include in his 3 second amended complaint all the claims he wishes to present and all of the defendants he wishes 4 || to sue, and may not incorporate material from the prior complaints by reference. Plaintiff may not 5 || replead his claims that he should not be housed on a Level II yard because he was classified as a 6 || Level I inmate, or that Level I and Level II inmates should not be housed together. Failure to file 7 a second amended complaint in accordance with this order in the time provided will result in 8 dismissal of this action without further notice to Plaintiff. The Clerk shall include two copies of 9 || the court’s complaint form with a copy of this order to Plaintiff. 10 4. The Court DENIES Plaintiff's request for appointment of counsel without 11 prejudice to the Court sua sponte appointing counsel in the future should the circumstances so 12 || require. 13 This order terminates Dkt. No. 13. IT IS SO ORDERED. 3 15 || Dated: 10/3/2024 16 Aapuorrd Lb b 5 HAYWOOD S, GILLIAM, JR. nited States District Judge 18 19 20 21 22 23 24 25 26 27 28