The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF CERTAIN CLAIMS (Doc. 16) OBJECTIONS , IF ANY, DUE WITHIN THIRTY (30) DAYS
I. Findings and Recommendations
Plaintiff Gerald A. West ("Plaintiff") is a federal prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), which provides a remedy for violation of civil rights by federal actors. Plaintiff opened this action on July 22, 2009. On July 22, 2009, Plaintiff initiated this action by filing his complaint. Plaintiff then filed a first amended complaint on August 10, 2009. On September 23, 2009, the Court screened Plaintiff's first amended complaint and ordered Plaintiff either to file a second amended complaint curing the deficiencies identified therein, or file a second amended complaint. Pending before the Court is Plaintiff's second amended complaint, filed on October 19, 2009. (Doc. 16.)
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).
A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id.
II. Summary of Second Amended Complaint
Plaintiff was previously incarcerated at United States Penitentiary at Atwater ("USP-Atwater") in Atwater, California, where the events giving rise to this action occurred. Plaintiff names as Defendants Correctional Officers John Doe 1, John Doe 2, and John Doe 3.
Plaintiff alleges that on October 26, 2007, he arrived at USP-Atwater from USP Coleman. During intake, Plaintiff told Defendant John Doe 1 that he had concerns about whether he should be placed in general population because of a prior stabbing incident that occurred at USP Coleman prior to his transfer. Defendant John Doe 1 ignored Plaintiff's concerns and sent him to population. The next day, inmate Morton was stabbed several times by three inmates. The three inmates repeatedly referred to inmate Morton by Plaintiff's name. He was taken to the infirmary by Defendant John Doe 2. While there, inmate Morton told Defendant John Doe 2 that he knew another inmate by Plaintiff's name, who had come down on a bus with him to USP-Atwater. Inmate Morton told John Doe 2 that Plaintiff was their actual intended victim. Defendant John Doe 2 ignored inmate Morton's information and told him that the shift was about to change and he was going home.
After inmate Morton's stabbing, Defendant John Doe 3 that was working the housing unit locked down the Unit 3B, where the incident occurred, then conducted an emergency count. Once the emergency count was completed, the 3B housing unit doors were opened. None of the inmates who had participated in the assault were taken into custody, nor were any weapons confiscated. When Plaintiff returned to his cell, he was attacked and stabbed by three inmates, the same inmate who had participated in the earlier attack on inmate Morton. Plaintiff was taken to a local outside hospital to treat his wounds. Plaintiff had been stabbed seven times in the upper and lower back, once in the neck, and once in the head.
Plaintiff seeks monetary damages.
The Eighth Amendment protects prisoners from inhumane methods of punishment and from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). Although prison conditions may be restrictive and harsh, prison officials must provide prisoners with food, clothing, shelter, sanitation, medical care, and personal safety. Farmer v. Brennan, 511 U.S. 925, 832-33 (1994) (internal citations and quotations omitted). Prison officials have a duty to take reasonable steps to protect inmates from physical abuse. Id. at 833; Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005).
Plaintiff's allegations against Defendant John Doe 1 fail to state a cognizable claim. Plaintiff alleges that he told Defendant John Doe 1 of concerns about being placed in general population because of a prior stabbing incident at another federal prison. This is not sufficient to demonstrate that Defendant John Doe 1 knew of and disregarded an excessive risk to Plaintiff's health or safety. Plaintiff's concern about placement in the general population is not sufficient to make John Doe 1 aware of Plaintiff's particular safety issues.
Plaintiff's allegations against Defendant John Doe 2 state a cognizable claim. John Doe 2 was told by inmate Morton, the victim of an inmate assault, that Plaintiff was their intended target. John Doe 2 did not do anything about this because there was going to be a shift change, and he was going home. This ...