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
How later courts described this case
- 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
- the “‘amended complaint supersedes the original, the latter 22 being treated thereafter as non-existent.’”
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
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11 DANIEL LEE THORNBERRY, No. 2:19-cv-0639-MCE-EFB P
12 Plaintiff,
13 v. ORDER
14 DAVID BAUGHMAN, et al.,
15 Defendants.
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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 /////
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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
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