The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION FOR FAILURE TO STATE A CLAIM (DOC. 35)
OBJECTIONS DUE WITHIN TWENTY-ONE DAYS
Findings And Recommendations
Plaintiff Gemmel Dixon ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action by filing his complaint on January 28, 2009. Doc. 1. The Court screened Plaintiff's complaint on May 8, 2009, pursuant to 28 U.S.C. § 1915A, and found that if failed to state a claim. Doc. 9. Plaintiff was provided with the opportunity to file an amended complaint. On June 2, 2009, Plaintiff filed his first amended complaint. Doc. 13. On October 21, 2009, the Court issued Findings and Recommendations recommending dismissal of certain claims. Doc. 16. The Magistrate Judge had found that Plaintiff stated cognizable Eighth Amendment claims as to Defendants Gonzales, Carrasco, Zanchi, Peterson, and Gentry for failure to protect, but Plaintiff failed to state any other claims. On December 21, 2009, the District Judge assigned to this action adopted the findings and recommendation. Doc. 18.
On December 24, 2009, Plaintiff filed a motion to amend his civil rights complaint. Doc. 19. On June 22, 2010, the District Judge granted Plaintiff's motion. Doc. 22. Plaintiff filed his second amended complaint on June 22, 2010, prior to receiving the District Judge's order. Plaintiff omitted his cognizable claims. Plaintiff then filed a motion on August 16, 2010, requesting clarification as to whether he had preserved his cognizable claims. On November 30, 2010, the Court issued an order requiring Plaintiff to file a third amended complaint if he wished to preserve his cognizable claims. Plaintiff filed his third amended complaint on December 30, 2010. Doc. 27. On July 21, 2011, the Court screened Plaintiff's third amended complaint and found that it failed to state a claim. Doc. 31. Plaintiff was provided one more opportunity to amend. On September 7, 2011, Plaintiff filed his fourth amended complaint. Doc. 35.
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 Atl. 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.'" Id. (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id.
II. Summary Of Fourth Amended Complaint
Plaintiff was incarcerated at California Correctional Institution ("CCI") in Tehachapi, California, where the events giving rise to this action occurred. Plaintiff names the following as Defendants: F. Gonzales, warden of CCI; associate warden M. Carrasco; Facility 4A captain D. Zanchi; Facility 4A lieutenant J. Peterson; correctional counselor II D. Cowee; director of CDCR S. Hubbard; E. Arnold, chief of the CSU; Institutional Gang Investigator ("IGI") lieutenant Gentry; and correctional counselor S. Albritton.
Plaintiff alleges the following. A confidential memorandum was authored by IGI at CCI on November 17, 2007 and placed in Plaintiff's central file. Fourth Am. Compl. 4. Plaintiff was recommended for transfer to another institution because of safety concerns. Id. Defendant F. Gonzales is responsible for the safety of inmates under his charge. Id. Defendant Gonzales failed to ensure that procedures were followed. Id. CDCR policy called for Plaintiff's immediate removal from the general population to administrative segregation. Id.
Defendant M. Carrasco failed to act within her authority to ensure that CCI staff executed procedures to prevent assaults such as the one that occurred to Plaintiff. Id. at 5. Defendant Zanchi was the active captain on November 17, 2007 when the information regarding an imminent attack on Plaintiff was placed into Plaintiff's central file. Id. The assault occurred on November 20, 2007. Id. Defendant Zanchi took no reasonable steps to avert the attack. Id. Defendant Peterson, the active lieutenant, failed to ensure that CDCR procedures involving security were executed and enforced by staff under his authority. Id. Defendant Cowee demonstrated his knowledge of the threat of assault, but made no effort to warn Plaintiff of the threat or remove him. Id. at 5-6.
As a result of Plaintiff being assaulted, Plaintiff was recommend by the Institutional Classification Committee ("ICC") for an indeterminate Security Housing Unit ("SHU") term for safety reasons. Id. at 7. Plaintiff refused to accept placement in the Sensitive Needs Yard and refused to become an informant. Id. Plaintiff's classification status was referred to the Departmental Review Board ("DRB"). Id. On June 27, 2008, the DRB, composed of Defendants S. Hubbard, E. Arnold, and S. Albritton, reviewed Plaintiff's case, and rejected the ICC's rationale of placing Plaintiff in indeterminate SHU for safety reasons. Id. However, the DRB still imposed an indeterminate SHU term based on Plaintiff's past violent and disruptive behavior. Id. Plaintiff complains that DRB Defendants denied Plaintiff due process, including notice of any impending disciplinary infractions, the right to call witnesses, and the right to be present at the DRB hearing. Id. at 7-8.
Plaintiff requests declaratory relief, a permanent injunction ordering the restoration of all lost credit and barring Plaintiff being housed in CCI, compensatory and punitive ...