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Rodrigues v. Norwood

July 9, 2010


The opinion of the court was delivered by: Margaret A. Nagle United States Magistrate Judge


Plaintiff, a federal prisoner proceeding pro se and in forma pauperis, filed a civil rights complaint, pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999 (1971), on April 30, 2010 ("Complaint").

Congress has mandated that courts perform an initial screening of civil actions brought by prisoners with respect to prison conditions and/or that seek redress from a governmental entity or officer or employee of a governmental entity. This Court "shall" dismiss such a civil action brought by a prisoner before service of process if the Court concludes that the complaint is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks relief against a defendant who is immune from suit. 28 U.S.C. § 1915A(b); 42 U.S.C. § 1997e(c)(1). In screening such a complaint, the Court must construe the allegations of the complaint liberally and must afford the plaintiff the benefit of any doubt. See Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). A pro se litigant must be given leave to amend his or her complaint unless it is absolutely clear that the deficiencies of the complaint cannot be cured by amendment. Id.; Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).


Plaintiff is currently in the custody of the Federal Bureau of Prisons ("BOP") at the Federal Correctional Complex at Coleman, Florida. (Complaint, Parties, ¶ 1.) His claims arise out of his confinement at the Federal Correctional Complex at Victorville, California ("Victorville"). (Id.) He names the following defendants: Warden J.L. Norwood; Associate Warden R. Ali; Captain Bourne; SIS Lieutenant Nunez; Lieutenants C. Schindehette and T. Patterson; Dr. Jesus Fernandez; BOP Director Harley Lappin; BOP Western Regional Counsel Harlin Penn; BOP Supervisory Attorney Eliezer Ben-Shmuel; and two officials of United States Department of Justice, Office of Information Policy, Janice Galli McLeod and Anne D. Work. (Id. at ¶¶ 2-12.)

Plaintiff alleges that he is a citizen of the Dominican Republic. (Complaint, Parties, ¶ 1.) On February 6, 2008, he arrived at Victorville at the same time as another Dominican inmate. (Complaint, Facts, ¶ 1.) Plaintiff did not know that the other Dominican inmate had "serious problems" with a group of Victorville inmates who were expecting his arrival. (Id. at ¶ 2.) Defendant Nunez interviewed plaintiff to see if there were any reasons why plaintiff could not safely be released into the general population. (Id. at ¶ 3.) The other Dominican inmate had already told Nunez that he had enemies in the general population, and Nunez had placed him in protective custody in segregation. (Id. at ¶ 4.) While interviewing plaintiff, Nunez adopted a hostile tone, and plaintiff responded in kind. (Id. at ¶ 5.) At the conclusion of the interview, Nunez told plaintiff that he was going to send him to his death. (Id.) Nunez then released plaintiff into the general population. (Id. at ¶ 6.)

Before releasing plaintiff, Nunez told a group of inmates that the Dominican with "problems" was being placed in segregation and the Dominican without problems would be placed in the general population. (Complaint, Statement of the Facts, ¶ 7.) However, Nunez did not convey this information to the group that had "problems" with the other Dominican, and they believed that plaintiff was the man they wanted. (Id. at ¶ 6.) On February 7, 2008, these inmates approached plaintiff and repeatedly stabbed him. (Id. at ¶ 7.) Plaintiff sustained 45 stab wounds. (Complaint at p. 2.) He was transported by helicopter to the hospital and remained there for a week. (Id. at ¶ 7.) When plaintiff returned to prison, he was housed in segregation in an unsanitary area and was not provided with adequate medical care. (Id.) On March 12, 2008, plaintiff was forced to return to the general population. (Id. at ¶ 19.)

Plaintiff contends that defendants attempted to cover up Nunez's misconduct and/or failed to conduct an adequate investigation. (Complaint, Statement of the Facts, ¶¶ 9-18.) Defendants McLeod and Work prevented plaintiff from gathering evidence regarding the other defendants' misconduct when they denied his Freedom of Information Act ("FOIA") request for records pertaining to the incident. (Complaint, Parties, ¶ 12, Statement of the Facts, ¶ 13.)

Plaintiff asserts the following claims: (1) an Eighth Amendment claim for deliberate indifference to his safety; (2) an Eighth Amendment claim for deliberate indifference to his serious medical needs; (3) a due process claim; (4) an equal protection claim; and (5) claims under 42 U.S.C. §§ 1985 and 1986. (Complaint at pp. 10-11.) He seeks damages and an injunction enjoining defendants and their agents from retaliating against him or transferring him to a facility containing persons who would harm him for filing this complaint. (Id. at p. 12.)



The Eighth Amendment imposes a duty on prison officials to protect prisoners from violence at the hands of other prisoners. Farmer v. Brennan, 511 U.S. 825, 833, 114 S.Ct. 1970, 1976 (1994). A prison official's deliberate indifference to a substantial risk of serious harm to an inmate violates the Eighth Amendment. Id. at 828, 114 S.Ct. at 1974. However, not every injury suffered by one inmate at the hands of another translates into constitutional liability for prison officials responsible for his safety. Id. at 834, 114 S.Ct. at 1977. To be liable, the defendant must not only have been aware of facts from which an inference could be drawn that a substantial risk of serious harm existed, but also must have actually drawn the inference. Farmer, 511 U.S. at 837, 114 S.Ct. at 1979.

Plaintiff has alleged that defendant Nunez knew that there was a contract on the life of another Dominican inmate who arrived at Victorville on the same day as plaintiff, and nevertheless, Nunez released plaintiff into the general population without informing the inmates planning the assault that plaintiff was not their intended victim. (Complaint, Statement of the Facts, ¶¶ 4-6.) Moreover, plaintiff alleges that Nunez told him that he was sending him to his death. (Id. at ¶ 5.) Plaintiff was stabbed 45 times and sustained serious injuries. (Complaint at p.2, Statement of the Facts, ¶ 7, 17.) The Court concludes that these allegations are sufficient to state an Eighth Amendment claim against Nunez for deliberate indifference to plaintiff's safety.*fn1

Plaintiff has not, however, alleged such an Eighth Amendment claim against any of the other defendants. Liability under Bivens must be based on personal involvement by the defendant. Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1948 (2009)("Because vicarious liability is inapplicable to Bivens and $1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution."); see also Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989)("Liability under Section 1983 arises only upon a showing of personal participation by the defendant. A supervisor is only liable for constitutional violations of his subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them."; internal citation omitted).*fn2 "A plaintiff must allege facts, not simply conclusions, that show that an individual was personally involved in the deprivation of his civil rights." Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). Moreover, there must be a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation. Redman v. County of ...

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