“If a plaintiff does 26 /// 27 /// 28 /// | take advantage of the opportunity to fix his complaint, a district court may convert the 2 || dismissal of the complaint into dismissal of the entire action.”
How later courts described this case
- “If a plaintiff does 26 /// 27 /// 28 /// | take advantage of the opportunity to fix his complaint, a district court may convert the 2 || dismissal of the complaint into dismissal of the entire action.”
- noting that claims dismissed with leave 19 to amend which are not re-alleged in an amended pleading may be “considered waived if 20 not repled.”
- noting that screening pursuant to § 1915A “incorporates the familiar standard 20 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 21 12(b)(6)”
- inmate 22 failed to show § 1983 violation in absence of “intentional or purposeful discrimination”
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 ALLEN EDWARDS Case No.: 3:21-cv-00010-AJB-BLM
CDCR #V-17007,
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ORDER DISMISSING AMENDED
Plaintiff,
13 COMPLAINT [ECF No. 22]
vs. PURSUANT TO 28 U.S.C. § 1915(e)(2)
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AND 28 U.S.C. § 1915A(b)(1)
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N. SCHARR, SERGEANT and BROWN,
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CORRECTIONAL OFFICER,
17 Defendants.
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19 On January 4, 2021, Allen Edwards (“Plaintiff” or “Edwards”), currently
20 incarcerated at Richard J. Donovan State Prison (“RJD”) located in San Diego, California,
21 and proceeding pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983. ECF
22 No. 1. Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a); instead,
23 he filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a).
24 ECF No. 2. The Court denied Edwards’s initial IFP Motion because the documents he
25 submitted in support indicated he could afford the filing fee. ECF No. 8. He was given
26 thirty days to pay the filing fee. Id.
27 Instead, on April 9, 2021, Edwards filed a renewed Motion to Proceed IFP, followed
28 by a trust account statement several days later. ECF Nos. 13–14. The Court granted
1 Edwards’s IFP and dismissed his case without prejudice for failing to state a claim pursuant
2 to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A. ECF No. 17. Edwards filed a First Amended
3 Complaint (“FAC”) on June 28, 20201. ECF No. 22.
4 I. Screening per 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)
5 A. Standard of Review
6 Because Edwards is a prisoner, his Complaint requires a pre-answer screening
7 pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b). Under these statutes, the Court
8 must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, which is frivolous,
9 malicious, fails to state a claim, or seeks damages from defendants who are immune. See
10 Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C.
11 § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28
12 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that the targets of frivolous
13 or malicious suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d
14 903, 920 n.1 (9th Cir. 2014) (citation omitted).
15 “The standard for determining whether Edwards has failed to state a claim upon
16 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of
17 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d
18 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.
19 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard
20 applied in the context of failure to state a claim under Federal Rule of Civil Procedure
21 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted
22 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.
23 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121.
24 Detailed factual allegations are not required, but “[t]hreadbare recitals of the
25 elements of a cause of action, supported by mere conclusory statements, do not suffice.”
26 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief
27 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial
28 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned,
1 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility
2 standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).
3 B. Plaintiff’s Allegations
4 Edwards claims he is an “inmate patient in the CDCR Enhanced Outpatient level of
5 care [“EOP”] as well as developmentally disabled [“DDP”] [inmate].” FAC, ECF No. 22
6 at 3. Because of these designations, he states that he is entitled to “special housing” to
7 protect him from “unwarranted risks of attacks and victimization by other inmates.” Id.
8 Edwards alleges he told Defendants Scharr and Brown that “he might be assaulted,
9 victimized or coerced by general population inmates,” but they told him he was “moving
10 anyway and if [he] refused [he] would be written up [and] put in the ‘hole’ for obstructing
11 an officer in his duties.” Id. Edwards claims a “special needs” yard was constructed at RJD
12 to address the victimization of EOP and DDP inmates and that Scharr and Brown knew
13 that placing Edwards in general population was potentially dangerous to him because they
14 had “worked this facility and were well aware of this fact.” Id. Edwards “begged and
15 pleaded” Scharr and Brown to not move him to general population and showed them his
16 chronos, cane, and other proof of his EOP and DDP status, but “they still forced [him] to
17 move by their threats of disciplinary action against [him.] Id. He claims he was physically
18 injured as a result of Scharr’s and Brown’s actions. Id. He seeks “prospective and
19 declaratory relief” in the form of an injunction preventing defendants from “forcing
20 EOP/DDP inmates to move to general population buildings,” and imposing further training
21 on defendants regarding “their duty to protect EOP/DDP inmates from assault and
22 victimization by [general population] inmates.”
23 C. 42 U.S.C. § 1983
24 “Section 1983 creates a private right of action against individuals who, acting under
25 color of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey,
26 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of substantive
27 rights, but merely provides a method for vindicating federal rights elsewhere conferred.”
28 Graham v. Connor, 490 U.S. 386, 393‒94 (1989) (internal quotation marks and citations
1 omitted). “To establish § 1983 liability, a plaintiff must show both (1) deprivation of a right
2 secured by the Constitution and laws of the United States, and (2) that the deprivation was
3 committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc., 698
4 F.3d 1128, 1138 (9th Cir. 2012).
5 D. Discussion
6 The claims Edwards brings in his FAC are similar to the claims he brought in his
7 original complaint but contain less detail. In his FAC, Edwards alleges his Eighth and
8 Fourteenth Amendment rights were violated by Defendants Scharr and Brown. FAC, ECF
9 No. 22 at 3.
10 a. Eighth Amendment
11 Threats to both Plaintiff’s safety and health are subject to the Eighth Amendment’s
12 demanding deliberate indifference standard. See Farmer v. Brennan, 511 U.S. 825, 834,
13 837 (1994); Hamby v. Hammond, 821 F.3d 1085, 1092 (9th Cir. 2016). “A prison official
14 acts with ‘deliberate indifference . . . only if the [official] knows of and disregards an
15 excessive risk to inmate health and safety.’” Toguchi v. Chung, 391 F.3d 1051, 1057 (9th
16 Cir. 2004) (quoting Gibson v. Cnty. of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002),
17 overruled on other grounds by Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1076 (9th
18 Cir. 2016)). “Under this standard, the prison official must not only ‘be aware of facts from
19 which the inference could be drawn that a substantial risk of serious harm exists,’ but that
20 person ‘must also draw the inference.’” Id. (quoting Farmer, 511 U.S. at 837). In addition,
21 a Plaintiff must allege he suffered a physical injury which is more than de minimus. Oliver
22 v. Keller, 289 F.3d 623, 627 (9th Cir. 2002); Fournerat v. Fleck, 2020 WL 4495483 (C.D.
23 California, July 7, 2020).
24 Edwards has not pointed to any specific threat or risk he faced, but alleges only that,
25 as a general proposition, inmates like himself can be victims of assaultive behavior by other
26 inmates. The risks Edwards claims Scharr and Brown were aware of are only theoretical.
27 Edwards says he “told Scharr and Brown he might be assaulted, victimized or coerced by
28 general population inmates,” and that “general population inmates are known to be
1 predators of EOP/DDP inmates.” FAC at 3. This is insufficient to plausibly allege Scharr
2 and Brown were “‘aware of facts from which the inference could be drawn that a
3 substantial risk of serious harm exists’” and also actually drew that inference. Toguchi, 391
4 F.3d at 1057 (quoting Farmer, 511 U.S. at 837); Iqbal, 556 U.S. 662, 678.
5 Further, although Edwards alleges he was injured when he “f[e]ll down the stairs,
6 injuring and tearing the tendons in his shoulder [and] causing his ulcers to become inflamed
7 and extreme pain in his abdominal area,” id. at 8, he has not plausibly alleged that the injury
8 was caused by Scharr’s or Brown’s actions. Iqbal, 556 U.S. 662, 678. He makes no
9 allegations that Scharr or Brown had anything to do with his accident or was present when
10 the accident occurred. Id. Accordingly, Edwards has failed to state a § 1983 claim upon
11 which relief can be granted. See 28 U.S.C. § 1915(e)(2); 28 U.S.C. § 1915A(b)(1).
12 b. Fourteenth Amendment Equal Protection
13 The Equal Protection Clause “is essentially a direction that all persons similarly
14 situated should be treated alike.” See City of Cleburne, Tex. v. Cleburne Living Ctr., 473
15 U.S. 432, 439 (1985); see also Vacco v. Quill, 521 U.S. 793, 799, (1997) (citing Plyler v.
16 Doe, 457 U.S. 202, 216 (1982) and Tigner v. Texas, 310 U.S. 141, 147 (1940); Fraley v.
17 Bureau of Prisons, 1 F.3d 924, 926 (9th Cir. 1993) (per curiam). To bring a successful
18 equal protection claim, a plaintiff must allege differential treatment from a similarly
19 situated class. See Washington v. Davis, 426 U.S. 229, 239 (1976). For this differential
20 treatment to give rise to a claim under 42 U.S.C. § 1983, “one must show intentional or
21 purposeful discrimination.” Draper v. Rhay, 315 F.2d 193, 198 (9th Cir. 1963) (inmate
22 failed to show § 1983 violation in absence of “intentional or purposeful discrimination”).
23 As with his original complaint, Edwards alleges he is an EOP and DDP inmate who
24 is entitled to “specialized housing” but that he was improperly moved to general population
25 housing by Scharr and Brown. FAC at 3. But Edwards has not alleged any facts to plausibly
26 show he was treated differently from any other similarly situated inmate. Washington, 426
27 U.S. at 239; McLean v. Crabtree, 173 F.3d 1176, 1185 (9th Cir. 1999); Iqbal, 556 U.S. at
28 662, 678. Without this “factual content,” he has not plausibly alleged an equal protection
1 violation. Cleburne, 473 U.S. at 439; Iqbal, 556 U.S. at 662, 678; see also Lum v. Penarosa,
2 2 F. Supp. 2d 1291, 1294 (D. Haw. 1998) (dismissing claims that prisoner’ was denied
3 parole in violation of equal protection where he failed to “point[] to [any] other similarly
4 situated inmate, or class of inmates who ha[d] been differently treated,” and “presented no
5 evidence [in his parole proceedings] of … [any] discriminatory intent”).
6 II. Conclusion and Order
7 For the reasons explained, the Court:
8 1) DISMISSES the First Amended Complaint in its entirety pursuant to 28
9 U.S.C. § 1915(e)(2) and 28 U.S.C. § 1915A(b)(1) for failing to state a § 1983 claim upon
10 which relief can be granted; and
11 2) GRANTS Plaintiff 60 days leave from the date of this Order in which to file
12 a Second Amended Complaint which cures the deficiencies of pleading noted as to the
13 Eighth and Fourteenth Amendment claims. Plaintiff’s Second Amended Complaint must
14 be complete in itself without reference to his original pleading. Defendants not named and
15 any claims not re-alleged in the Second Amended Complaint will be considered waived.
16 See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d
17 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the original.”); Lacey v.
18 Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave
19 to amend which are not re-alleged in an amended pleading may be “considered waived if
20 not repled.”).
21 If Plaintiff fails to file a Second Amended Complaint within the time provided, the
22 Court will enter a final Order dismissing this civil action based both on Plaintiff’s failure
23 to state a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)
24 and 1915A(b), and his failure to prosecute in compliance with a court order requiring
25 amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does
26 ///
27 ///
28 ///
| take advantage of the opportunity to fix his complaint, a district court may convert the
2 || dismissal of the complaint into dismissal of the entire action.”).
3 IT IS SO ORDERED.
4 || Dated: July 27, 2021
6 United States District Judge
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