United States District Court, S.D. California
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 ...