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Kenneth A. Smith v. Parole Division C.D.C.

February 7, 2011

KENNETH A. SMITH PLAINTIFF,
v.
PAROLE DIVISION C.D.C., ET AL., DEFENDANTS. ORDER



Kenneth Smith, formerly confined at the Sacramento County Jail, filed this pro se civil rights action under 42 U.S.C. § 1983. In addition to filing a complaint, plaintiff has filed an application to proceed in forma pauperis and a motion for the case to remain in this district. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1) and is before the undersigned pursuant to plaintiff's consent. See E.D. Cal. Local Rules, Appx. A, at (k)(4).

I. Request to Proceed In Forma Pauperis

Plaintiff has requested leave to proceedin forma pauperis pursuant to 28 U.S.C. § 1915. Dckt. No. 2. Plaintiff's application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2). Accordingly, the request will be granted.

II. Motion for Case to Remain in Eastern District

Plaintiff has filed a brief asking that this case be retained in this district. Dckt. No. 5. No defendant has appeared and thus no motion to transfer the case is pending. The motion will accordingly be denied as unnecessary and premature.

III. Screening

Pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), the court must dismiss plaintiff's case if at any time the court determines that it fails to state a claim on which relief may be granted. The court must construe a pro se pleading "liberally" to determine if it states a claim and, prior to dismissal, tell a plaintiff of deficiencies in his complaint and give plaintiff an opportunity to cure them. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000). While detailed factual allegations are not required, "[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 to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570).

A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.

Id. (citations and quotation marks omitted). Although legal conclusions can provide the framework of a complaint, they must be supported by factual allegations, and are not entitled to the assumption of truth. Id. at 1950.

The Civil Rights Act under which this action was filed provides: Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .

42 U.S.C. § 1983. An individual defendant is not liable on a civil rights claim unless the facts establish the defendant's personal involvement in the constitutional deprivation or a causal connection between the defendant's wrongful conduct and the alleged constitutional deprivation. See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978)

The court has reviewed plaintiff's complaint pursuant to 28 U.S.C. § 1915A and finds it does not state a cognizable claim. Plaintiff alleges that, while incarcerated at the California Medical Facility, he was in an "altercation" with another inmate named Orolee Brown. Dckt. No. 1 at 3. Mr. Brown was paroled on the same day as plaintiff and rode the same bus to Sacramento from Vacaville, "near" plaintiff. Id. Plaintiff regards it as inappropriate that Mr. Brown -- "a guy [he] fought" -- was transported with him to Sacramento. Id.

A prison official violates the Eighth Amendment's proscription of cruel and unusual punishment where he or she deprives a prisoner of the minimal civilized measure of life's necessities with a "sufficiently culpable state of mind." Farmer v. Brennan, 511 U.S. 825, 834 (1994). Prison officials have a duty to take reasonable steps to protect inmates from physical abuse. Norwood v. Vance, 591 F.3d 1062, 1069 (9th Cir. 2010); Farmer, 511 U.S. at 833; Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005). The failure of prison officials to protect an inmate from attack by other inmates may rise to the level of an Eighth Amendment violation where prison officials know of and disregard a substantial risk of serious harm to the plaintiff. E.g., Farmer, 511 U.S.at 847; Hearns, 413 F.3d at 1040. To state such an Eighth Amendment claim, a prisoner must allege facts showing that (1) the defendant prison official's conduct deprived him or her of the minimal civilized measure of life's necessities and (2) that the defendant acted with deliberate indifference to the prisoner's health or safety. Id. at 834. To show deliberate indifference, the prisoner must allege that the defendant knew of and disregarded an excessive risk to inmate health or 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 he must also draw the inference." Id. at 837. A prison official may thus be free from liability if he or she did not know of the risk or took reasonable action in response to the risk. Id. at 844.

Plaintiff's complaint is devoid of factual allegations from which the court could infer that any defendant knew that Mr. Brown posed a risk to plaintiff's safety. Plaintiff does not even allege that such a risk existed; the mere fact that the two inmates fought in 2002 does not imply that Mr. Brown posed a risk of harm to plaintiff on the ride to Sacramento.

Further, plaintiff has named only state agencies as defendants ("Parole Division C.D.C.," "C.M.F. State Prison Facility," and "Department of Corrections"). These agencies are not "persons" under § 1983 and thus may not be sued under that statute. Gillbreath v. Cutter Biological, Inc., 931 F.2d 1320, 1327 ...


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