Cathy v. McCain

          ORDER: DISMISSING ACTION PURSUANT TO 28 U.S.C. § 1915A

          HON. DANA M. SABRAW, UNITED STATES DISTRICT JUDGE

         Charles Ray Cathy (“Plaintiff”), a state inmate currently incarcerated at Kern Valley State Prison located in Delano, California, and proceeding pro se, has filed an action brought pursuant to 42 U.S.C. § 1983. In his Complaint, Plaintiff claims his constitutional rights were violated while he was housed at Calipatria State Prison. (See Compl., ECF No. 1, at 1.)

         Plaintiff has prepaid the initial civil filing fee required to commence a civil action pursuant to 28 U.S.C. § 1914(a). In addition, Plaintiff has filed a “Motion for Verification of Plaintiff’s Pending Suit and Recognition of PLU Status, ” along with a “Motion for Service of Summons and Complaint by United States Marshal.” (ECF Nos. 4, 6.)

         I. Initial Screening per 28 U.S.C. § 1915A(b)(1)

         Even though Plaintiff paid the filing fee, the Court can conduct a sua sponte review of Plaintiff’s Complaint because he is “incarcerated or detained in any facility [and] is accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, probation, pretrial release, or diversionary program.” 28 U.S.C. § 1915A(a), (c). Section 1915A, enacted as part of the Prison Litigation Reform Act (“PLRA”), requires sua sponte dismissal of prisoner complaints, or any portions thereof, which are frivolous, malicious, or fail to state a claim upon which relief may be granted. 28 U.S.C. § 1915A(b); Resnick v. Hayes, 213 F.3d 443, 446-47 (9th Cir. 2000). A similar screening provision of the PLRA would apply to Plaintiff’s Complaint even if he successfully moved to proceed in forma pauperis (“IFP”). See 28 U.S.C. § 1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc).

         A. Eighth Amendment violations

         Plaintiff alleges that he is a “validated/documented Crip.” (Compl. at 4.) He further alleges that Defendants McCain and McKenzie were aware of his gang status. (Id. at 4-5.) On November 11, 2015, while Plaintiff was housed at Calipatria State Prison (“CAL”), Defendants McCain and McKenzie came to his cell and informed him that he would be changing cells. (Id. at 1, 4-5.) Other inmates informed Plaintiff that the cell he was being moved to housed an inmate from a rival gang. (Id. at 4-5.) These inmates also informed Plaintiff that the officers were aware of this issue and “were trying to set me up in a gladiator like scenario.” (Id.) However, Plaintiff alleges that Defendants “McKenzie and McCain then came back to my cell and told me that the guy in the other cell” is, in fact, a member of a rival gang and the “Sergeant wants to send you to [administrative segregation] since you refused to move.” (Id. at 5-6.) Plaintiff was then sent to administrative segregation (“ad-seg”) and was not placed with the inmate from the rival gang. (Id. at 6.)

         The Eighth Amendment requires that prison officials take reasonable measures to guarantee the safety and well-being of prisoners. Farmer v. Brennan, 511 U.S. 825, 832- 33 (1994); Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000). To state an Eighth Amendment failure to protect claim, however, Plaintiff must allege facts sufficient to plausibly show that (1) he faced conditions posing a “substantial risk of serious harm” to his health or safety, and (2) the individual prison officials he seeks to hold liable were “deliberately indifferent” to those risks. Farmer, 511 U.S. at 837; Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010). To demonstrate deliberate indifference, Plaintiff must show that the defendant both knew of and disregarded a substantial risk of serious harm to his health and safety. Farmer, 511 U.S. at 837. Thus, Plaintiff must allege “the official [was] both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exist[ed], and [that] he . . . also dr[e]w that inference.” Id.

         Ultimately, Plaintiff’s Complaint contains no facts to plausibly suggest that he faced a “substantial risk of serious harm” at the time he was sent to ad-seg. While Plaintiff was allegedly going to be housed with a member of a rival gang, and even assuming the facts as true that the intent was to set up a “gladiator fight, ” there are no facts to show that he suffered any harm because he was never actually exposed to a risk based on his own allegations. Moreover, when Plaintiff objected to being housed with an inmate from a rival gang, prison officials responded by placing him in ad-seg as opposed to moving him into that cell. “[P]rison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably.” Id. at 844. Plaintiff does not allege any facts to support a finding that the Defendants responded unreasonably to a substantial risk of harm. Therefore, the Court finds that Plaintiff has failed to allege facts sufficient to find “deliberate indifference” on the part of any named Defendant.

         For these reasons, the Court finds Plaintiff’s failure to protect claims must be dismissed for failing to state a claim pursuant to 28 U.S.C. § 1915A(b)(1).

         B. Fourteenth Amendment Due Process claims

         Plaintiff also alleges that he was placed in ad-seg without due process. The Due Process Clause protects prisoners against deprivation or restraint of “a protected liberty interest” and “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)) (internal quotation marks omitted). Although the level of the hardship must be determined in a case-by-case determination, courts look to:

1) whether the challenged condition ‘mirrored those conditions imposed upon inmates in administrative segregation and protective custody, ’ and thus comported with the prison’s discretionary authority; 2) the duration of the condition, and the degree of restraint imposed; and 3) whether the state’s action will invariably affect the duration of the prisoner’s sentence.

Ramirez, 334 F.3d at 861 (quoting Sandin, 515 U.S. at 486-87). Only if an inmate has alleged facts sufficient to show a protected liberty interest does the court next consider “whether the procedures used to deprive that liberty ...