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Rosenblum v. Ellis

September 15, 2010

PHILLIP JON ROSENBLUM, PLAINTIFF,
v.
C/O ELLIS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF CERTAIN CLAIMS AND DEFENDANTS OBJECTION DUE WITHIN THIRTY DAYS (Doc. 20)

Findings and Recommendations Following Screening of First Amended Complaint

I. Procedural History

Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On July 31, 2008, an order was entered, finding that the complaint stated a claim against Defendant Ellis, but failed to state any claims against any of the other named defendants. Plaintiff was granted leave to file an amended complaint to correct the deficiencies that the order identified. Despite an extension of time, Plaintiff did not file an amended complaint. On September 22, 2008, Plaintiff filed a notice and request to proceed on the claims found to be cognizable. Plaintiff specifically indicated that he "wishes to proceed only on the claims identified by the court, as being unto C.O. Ellis."

Accordingly, service was ordered upon Defendant Ellis. On February 10, 2009, findings and recommendations were entered, recommending that Defendants Vasquez and Robles be dismissed, and Plaintiff's due process and supervisory liability claims be dismissed. The recommendation noted that Plaintiff advised the court that he wished to proceed only on the cognizable claims against Defendant Ellis. After eight extensions of time, Plaintiff filed objections to the findings and recommendations.

In his objections, Plaintiff contended that he was not advised that, should he not file an amended complaint, his due process and supervisory liability claims would be dismissed, and that Defendants Vasquez and Robles would be dismissed. Plaintiff's objections were largely taken up with disagreements over the substantive analysis of the order dismissing the complaint. In his objections, Plaintiff sought leave to further amend the complaint. In an order entered on June 10, 2010, the court vacated the findings and recommendations and granted Plaintiff's request for leave to file an amended complaint. On July 20, 2010, Plaintiff filed the first amended complaint that is now before the court.

II. Screening Requirement

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).

"Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions," none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002); Fed. R. Civ. P. 8(a). Pursuant to Rule 8(a), 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). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. However, "the liberal pleading standard . . . applies only to a plaintiff's factual allegations." Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). "[A] liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled." Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).

III. Plaintiff's Claims

Plaintiff, an inmate currently in the custody of the California Department of Corrections and Rehabilitation (CDCR) at Kern Valley State Prison, brings this civil rights action against defendant correctional officials employed by the CDCR at Wasco State Prison. The event that gives rise to this lawsuit occurred while Plaintiff was housed at Wasco. Plaintiff, a sensitive needs (SN) inmate, alleges that Defendants failed to protect him from general population (GP) inmates. As a result, Plaintiff was physically attacked, suffering injury as a result. In an order entered on July 31, 2008, the court noted that Plaintiff stated a claim for relief as to Defendant Ellis for failure to protect Plaintiff in violation of the Eight Amendment, but failed to state a claim against Defendant Warden Vasquez or Deputy Warden Robles. Plaintiff also failed to state a claim for a due process violation, or for supervisory liability. In the first amended complaint, Plaintiff names the same defendants: Warden Pat Vasquez, Deputy Warden Robles, and C/O Ellis. Plaintiff sets forth claims of failure to protect in violation of the Eighth Amendment, supervisory liability and state law claims.

A. Failure to Protect

"Prison officials have a duty to take reasonable steps to protect inmates from physical abuse." Hoptowit v. Ray, 682 F.2d 1237, 1250-51 (9th Cir. 1982); see also Farmer v. Brennan, 511 U.S. 825, 833(1994). To establish a violation of this duty, a prisoner must establish that prison officials were "deliberately indifferent" to serious threats to the inmate's safety. Farmer, 511 U.S. at 834. To demonstrate that a prison official was deliberately indifferent to a serious threat to the inmate's safety, the inmate must show that "the official [knew] of and disregarded an excessive risk to inmate... safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and [the official] must also draw the inference." Farmer, 511 U.S. at 837; Anderson v. County of Kern, 45 F.3d 1310, 1313 (9th Cir. 1995). To prove knowledge of the risk, however, the prisoner may rely on circumstantial evidence; in fact, the very obviousness of the risk may be sufficient to establish knowledge. Farmer, 511 U.S. at 842; Wallis v. Baldwin, 70 F.3d 1074, 1077 (9th Cir. 1995).

In the first amended complaint, Plaintiff, as in the original complaint, alleges facts indicating that Defendant Ellis knew of and disregarded a serious risk to Plaintiff's safety, resulting in injury to Plaintiff. Plaintiff is a sensitive needs inmate, and is housed with other SN inmates separately from general population inmates. Plaintiff alleges that, on the date at issue in this lawsuit, Defendant Ellis was on duty in the control tower. (Am. Compl. P. 2.) Plaintiff alleges that the GP inmates were known enemies of Plaintiff. Id. Plaintiff alleges that two of the four GP inmates were on the stairs about twenty feet from Plaintiff, "looking aggressively at him." Id. Defendant Ellis, rather than summoning staff to intervene, told the GP inmates to "get back." Id. The ...


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