FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF CERTAIN DEFENDANTS AND DENIAL OF PLAINTIFF'S DISCOVERY MOTIONS FOR DISMISSED DEFENDANT Docs. 51, 52, 56 / OBJECTIONS DUE WITHIN THIRTY DAYS Screening Order
I. Procedural History, Screening Requirement, and Standard
On July 22, 2009, Plaintiff Gerald A. West, a federal prisoner proceeding pro se and in forma pauperis, filed a complaint against Defendants employed by the United States Penitentiary in Atwater, California ("USP Atwater"),*fn1 pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Doc. 1. On August 27, 2010, Plaintiff filed a third amended complaint, naming only Doe Defendants. Doc. 25. On February 15, 2011, the Court dismissed certain claims and directed the action to proceed against Doe Defendants for Eighth Amendment failure to protect. Doc. 28. On May 3, 2011, the Court granted Plaintiff's motion to conduct limited discovery, for the sole purpose of identifying Doe Defendants, and ordered Plaintiff to identify Doe Defendants within 120 days. Doc. 33. On July 26, 2011, the Court directed service of a subpoena to the warden of USP Atwater, for the limited discovery of identifying Doe Defendants. Doc. 45. On August 25, 2011, the Bureau of Prisons ("BOP") submitted a response to Plaintiff's subpoena. Doc. 49. On March 7, 2012, Plaintiff filed his fourth amended complaint, identifying two of the three Doe Defendants. Doc. 56.
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, 556 U.S. 662, __, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)), and courts "are not required to indulge unwarranted inferences," Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 129 S. Ct. at 1949.
While prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, the pleading standard is now higher, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). Under § 1983, Plaintiff must demonstrate that each defendantpersonally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S. Ct. at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 129 S. Ct. at 1949-50; Moss, 572 F.3d at 969.
II. Plaintiff's Fourth Amended Complaint
In Plaintiff's fourth amended complaint, he names the Federal Bureau of Prisons; the United States of America; and J. Zaragoza, M. McNease, and Doe Defendant 3, who were employees of USP Atwater. 4th Am. Compl. at 1, Doc. 56.
On October 26, 2007, Plaintiff arrived with inmate Morton at USP Atwater. Id. at 3. Upon arrival, Plaintiff informed J. Zaragoza, and another unidentified prison official, that due to a prior stabbing incident, Plaintiff would be assaulted if he was placed in the general population. Id. The next day, inmate Morton was mistaken for Plaintiff by a group of inmates who attacked and stabbed inmate Morton. Id. While inmate Morton was at the infirmary, he informed Officer McNease that he was not the intended victim, and that Plaintiff was the intended victim. Id. Officer McNease ignored the information and told inmate Morton responded that his shift was nearly over and that he was going home. Id. at 4. After the assault on inmate Morton, the unit was placed on lockdown. Id. During the lockdown, the unit was not searched; the inmates who assaulted inmate Morton were not identified; and no weapons were confiscated. Id. Approximately one hour after the assault, the unit was reopened by Doe Defendant 3, a duty officer or operation lieutenant. Id. A short while after the unit was reopened, Plaintiff was attacked by the same inmates that attacked inmate Morton. Id. For relief, Plaintiff requests to be moved to a protective institution, or a minimum security institution; $250,000 in compensatory damages; and $250,000 in punitive damages. Id. at 3.
B. Eighth Amendment Failure to Protect
The Eighth Amendment protects prisoners from inhumane methods of punishment and from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). Although prison conditions may be restrictive and harsh, prison officials must provide prisoners with food, clothing, shelter, sanitation, medical care, and personal safety. Farmer v. Brennan, 511 U.S. 825, 832-33 (1994). Prison officials have a duty to take reasonable steps to protect inmates from physical abuse. Farmer, 511 U.S. at 833; Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005). The failure of prison officials to protect inmates from attacks 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.
Regarding the deliberate indifference prong of this analysis, a prison official cannot be held liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the standard for criminal recklessness is met, i.e., the official knows of and disregards an excessive risk to inmate health or safety. See Farmer, 511 U.S. at 837. 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. See id. This requires examination of the subjective intent of the defendant; that the prison official defendant acted with a "sufficiently culpable state of mind" and deliberate indifference to an inmate's health or safety. See Farmer, 511 U.S. at 834. Neither negligence nor gross negligence will constitute deliberate indifference. See id. at 835-36 & n.4; Estelle v. Gamble, 429 U.S. 97, 106 (1976). Allegations in a pro se complaint sufficient to raise an inference that the named prison officials acted with deliberate indifference-i.e, that they knew that plaintiff faced a substantial risk of serious harm and disregarded that risk by failing to take reasonable measures to abate it-states a "failure-to-protect" claim. Hearns, 413 F.3d at 1041--42.
While an inmate does not have to wait until he suffers an attack to demonstrate an Eighth Amendment violation, he does have to show that serious injury is "sure or very likely" and "sufficiently imminent." Baze v. Rees, 553 U.S. 35 (2008) (quoting Helling v. McKinney, 509 U.S. 25, 33-35 (1993)); see also Purvis v. Ponte, 929 F.2d 822, 825 (1st Cir. 1991). Here, Plaintiff has not done so. Although courts have recognized that being labeled a "snitch" can subject a prisoner to the risk of being injured, see, e.g., Benefield v. McDowall, 241 F.3d 1267, 1271 (10th Cir. 2001); Harmon v. Berry, 728 F.2d 1407, 1409 (11th Cir. 1984), Plaintiff has not sufficiently demonstrated that the alleged labeling of him as a snitch has subjected him to a substantial risk of harm in this case.
Plaintiff states that he has been taunted, harassed, and threatened by younger gang-oriented inmates; however, he fails to provide any specifics, such as (i) who threatened him or (ii) the content, type, and severity of the threats. Further, other than his own affidavit and letters with his general claim that he has been threatened, Plaintiff has not shown any support for his claim that he is in danger. Compare Northington v. Marin, 102 F.3d 1564, 1567 (10th Cir. 1996) (finding that being labeled a snitch subjected prisoner to ...