The opinion of the court was delivered by: Margaret A. Nagle United States Magistrate Judge
MEMORANDUM AND ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND
On July 11, 2011, plaintiff, a state prisoner proceeding pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983 ("Complaint").
Congress has mandated that courts perform an initial screening of civil rights 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. The Court "shall" dismiss such an action 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).
ALLEGATIONS OF THE COMPLAINT
Plaintiff is currently detained at the West Valley Detention Center ("WVDC") in San Bernardino County. (Complaint at 2.) He sues the following defendants: San Bernardino County Sheriff's Department ("Sheriff's Department"); San Bernardino County Sheriff Rod Hoops, solely in his official capacity; Deputy Sheriff Carrillo, in his individual and official capacities; and Deputy Sheriffs John Doe Nos. 1 through 3, solely in their official capacities. (Id. at 3-4.)
Plaintiff asserts an Eighth Amendment claim for violation of his right to personal safety and pendent state claims for negligence and "mental anguish." (Complaint at 5.) He alleges that Sheriff Hoops mandates that deputy sheriffs follow a policy and practice pursuant to which inmates requesting protective custody are first sent to the "high power unit" in order "to get hurt first, to substantiate their claim, before putting them in protective custody." (Id.) Plaintiff alleges that defendant Carrillo, a "classification deputy," applied this policy to plaintiff and refused his requests to be placed in protective custody. (Id. at 5 & Ex. G.)
Plaintiff further contends that, while he was housed in the "high power" unit, his ethnicity was improperly changed several times on his WVDC records. (Complaint at 5.) He contends that, as a Hispanic inmate, he should only be housed with Hispanic inmates, and defendant Carrillo acted maliciously and sadistically by assigning him an African-American cellmate. (Id. at 5a.) Plaintiff's African-American cellmate assaulted him, causing plaintiff to defend himself, and plaintiff's thumb was broken and required surgery. (Id.) When plaintiff returned from the hospital, defendant Carrillo changed his ethnicity from African-American back to Hispanic and assigned him a Hispanic cellmate.*fn1 (Id.) Plaintiff was afraid for his safety and denied the Hispanic inmate entry to his cell. (Id.) According to the grievances attached as exhibits to plaintiff's Complaint, he is a Mexican Mafia associate "drop out" and is afraid of retaliation from Hispanic gang members. (Id., Exs. D, E.)
Plaintiff was eventually placed in protective custody, where he remains. (Complaint at 5a.) He seeks an injunction preventing defendants from returning him to the general population and preventing "excessive cell searches" in retaliation for this lawsuit. (Id. at 6.)
He also seeks damages. (Id.)
I. PLAINTIFF FAILS TO STATE AN EIGHTH AMENDMENT CLAIM AGAINST DEFENDANT CARRILLO.
Plaintiff asserts claims against defendant Carrillo, in his individual and official capacities, for violation of plaintiff's Eighth Amendment right to personal safety. (Complaint at 5.) As an initial matter, the Cruel and Unusual Punishment Clause of the Eighth Amendment applies only to convicted prisoners. Ingraham v. Wright, 430 U.S. 651, 671 n.40, 97 S. Ct. 1401, 1412 n.40 (1977). The Due Process Clause of the Fourteenth Amendment governs conditions of confinement claims brought by pre-trial detainees. Bell v. Wolfish, 441 U.S. 520, 535 n.16, 99 S. Ct. 1861, 1872 n.16 (1979); Redman v. County of San Diego, 942 F.2d 1435, 1440-41 (9th Cir. 1991). Thus, if plaintiff is held at WVDC as a pretrial detainee, his claims arise under the Due Process Clause. Plaintiff should specify his status in his amended complaint.
Prison officials have a duty to take reasonable steps to guarantee inmates' safety and protect them from assault by other inmates. See Farmer v. Brennan, 511 U.S. 825, 832-33, 114 S. Ct. 1970, 1976 (1994). Although a pretrial detainee's interest in personal security arises under the Fourteenth Amendment, the deliberate indifference standard of the Eighth Amendment provides the level of culpability necessary for liability. Redman, 942 F.2d at 1443. Plaintiff must show that defendant acted with deliberate indifference to a substantial risk of serious harm. Farmer, 511 U.S. at 828, 114 S. Ct. at 1974. Deliberate indifference exists when the official knows of and disregards an excessive risk to the inmate's safety. Id. at 837, 114 S. Ct. at 1979. The official must be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists and must actually draw the inference. Id. While a prisoner need not wait to be injured before seeking injunctive relief, see Farmer, 511 U.S. at 845, 114 S. Ct. at 1983, a prisoner seeking damages must allege that the risk materialized and caused him injury, see Babcock v. White, 102 F.3d 267, 270-73 (7th Cir. 1996)(explaining that "it is the reasonably preventable assault itself, rather than any fear of assault, that gives rise to a compensable claim"). See also Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir. 2000)("In a constitutional tort, as in any other, a plaintiff must allege that the defendant's actions caused him some injury.").
Here, plaintiff's claims arise out of defendant Carrillo's refusal to place him in protective custody. Plaintiff does not allege in the Complaint why he required protective custody, but according to his attached exhibits, he feared attack by Hispanic gang members because he used to be a Mexican Mafia associate and "dropped out." (Complaint, Exs. D-H.) Plaintiff complains that Deputy Sheriff Carrillo assigned him an Hispanic cellmate. Plaintiff, however, does not allege that he was injured by an Hispanic cellmate; in fact, plaintiff refused to allow that Hispanic prisoner into the cell. (Complaint at 5a.) Thus, even assuming, arguendo, that defendant Carrillo ...