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Calihan v. Cate

United States District Court, E.D. California

February 25, 2015

KENNETH CALIHAN, Plaintiff,
v.
MATTHEW CATE, et al., Defendants.

ORDER AND FINDINGS AND RECOMMENDATIONS

EDMUND F. BRENNAN, Magistrate Judge.

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Defendant Knipp moves to dismiss and to declare plaintiff a vexatious litigant.[1] ECF No. 30. For the reasons that follow, it is recommended that the motion to dismiss be granted and the motion to declare plaintiff vexatious be denied.

I. Background

Plaintiff's second amended complaint alleges the following facts: On December 9, 2011, plaintiff (an inmate at Mule Creek State Prison, hereinafter "MCSP") was attacked by fellow inmate Tab Bennett and suffered "major injuries."[2] ECF No. 17 at 2. Bennett was a "level four" inmate, while plaintiff was "level two." Id. According to prison policies, inmates with such disparate classification numbers must not be placed on the same yard. Id. In addition, defendant Knipp, the warden at MCSP, knew that plaintiff had good reason to fear for his safety, having testified against Mexican Mafia members in another trial. Id. at 1, 3. According to the complaint, another witness in the same trial was killed for having testified. Id. at 3. Nevertheless, Knipp allegedly did not tell his staff about plaintiff's safety concerns. Id. at 1.

II. Defendant's Motion to Dismiss

A. Failure to State a Claim

Defendant argues that plaintiff has failed to state a claim upon which relief may be granted and thus dismissal is warranted under Federal Rule of Civil Procedure 12(b)(6). In order to survive a motion to dismiss under that rule, a complaint must contain "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 554-55, 562-63, 570 (2007) (stating that the 12(b)(6) standard that dismissal is warranted if plaintiff can prove no set of facts in support of his claims that would entitle him to relief "has been questioned, criticized, and explained away long enough, " and that having "earned its retirement, " it "is best forgotten as an incomplete, negative gloss on an accepted pleading standard"). Thus, the grounds must amount to "more than labels and conclusions" or a "formulaic recitation of the elements of a cause of action. Id. at 1965. Instead, the "[f]actual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. (internal citation omitted). Dismissal may be based either on the lack of cognizable legal theories or the lack of pleading sufficient facts to support cognizable legal theories. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

The complaint's factual allegations are accepted as true. Church of Scientology of Cal. v. Flynn, 744 F.2d 694, 696 (9th Cir. 1984). The court construes the pleading in the light most favorable to plaintiff and resolves all doubts in plaintiff's favor. Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). General allegations are presumed to include specific facts necessary to support the claim. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).

The court may disregard allegations contradicted by the complaint's attached exhibits. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987); Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295-96 (9th Cir.1998). Furthermore, the court is not required to accept as true allegations contradicted by judicially noticed facts. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001) (citing Mullis v. U.S. Bankr. Ct., 828 F.2d 1385, 1388 (9th Cir. 1987)). The court may consider matters of public record, including pleadings, orders, and other papers filed with the court. Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986) (abrogated on other grounds by Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104 (1991)). "[T]he court is not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged." Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994). Neither need the court accept unreasonable inferences, or unwarranted deductions of fact. Sprewell, 266 F.3d at 988.

Pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Unless it is clear that no amendment can cure its defects, a pro se litigant is entitled to notice and an opportunity to amend the complaint before dismissal. Lopez v. Smith, 203 F.3d 1122, 1127-28 (9th Cir. 2000) (en banc); Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).

Plaintiff's claim against defendant arises under the Eighth Amendment to the U.S. Constitution. "Prison officials have a duty... to protect prisoners from violence at the hands of other prisoners.'" Farmer v. Brennan, 511 U.S. 825, 833 (1994) (quoting Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556, 558 (1st Cir. 1988)). The failure of prison officials to protect inmates from attacks by other inmates may rise to the level of an Eighth Amendment violation when: (1) the deprivation alleged is "objectively, sufficiently serious" and (2) the prison officials had a "sufficiently culpable state of mind, " acting with deliberate indifference. Farmer, 511 U.S. at 834 (internal quotations omitted). "Deliberate indifference entails something more than mere negligence... [but] is satisfied by something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result." Id. at 835. To show deliberate indifference, "an inmate must prove that the official was both aware of facts from which the inference could be drawn that a substantial risk of serious harm existed, and he must also have drawn the inference." Wallis v. Baldwin, 70 F.3d 1074, 1077 (9th Cir. 1995) (internal quotation marks omitted).

Defendant argues that plaintiff's claim should be dismissed because plaintiff has not alleged that defendant knew that Bennett, in particular, posed a risk of harm to plaintiff. Defendant argues that, because there is nothing in the complaint suggesting that Bennett attacked plaintiff because of his testimony, or that would have indicated to defendant that Bennett posed a risk specifically to plaintiff, plaintiff's claim fails.

No case authority is cited holding that the defendant must be aware that another inmate poses a risk of harm specific to the plaintiff to state a claim for deliberate indifference. The absence of such authority is not surprising - such a rule would permit prison officials to deliberately place inmates they know to be uncontrollably violent in the general prison population, so long as the violent inmate did not have a specific target in mind. Here, plaintiff has alleged that it was indifferent of defendant to place Bennett and himself in the same yard due to their disparate custody levels, which in turn are based at least in part on an assessed risk of the inmate's propensity for violence. These general allegations are sufficient for the parties and the court to infer that defendant knew it would be risky to place Bennett on the lower-custody yard, but did so anyway. See also Cal. Code Regs. tit. 15, § 3375 (providing the classification process, and noting, "A lower placement score indicates lesser security control needs and a higher placement score indicates greater security control needs.").[3] Plaintiff alleges that defendant was aware of Bennett's higher custody level, as well as plaintiff's specific fears of retribution, but nevertheless placed Bennett on the yard with plaintiff. These allegations sufficiently claim that defendant was aware of facts from which a substantial risk of serious harm could be inferred.

Defendant also argues that the complaint lacks any allegation that defendant actually drew the inference of risk. Plaintiff does allege, however, that "defendant[] clearly knew of the substantial risk of serious harm and disregarded that risk[.]" ECF No. 17 at 3. Combined with plaintiff's allegations that defendant knew of facts showing that Bennett posed a risk of harm to inmates on plaintiff's yard, ...


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