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Ware v. Bitter

United States District Court, E.D. California

May 17, 2017

MARTIN WARE, Plaintiff,
v.
M. BITTER, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSING COMPLAINT WITHOUT LEAVE TO AMEND FOR FAILURE TO STATE A CLAIM (ECF NO. 26) OBJECTIONS DUE WITHIN THIRTY DAYS

         Plaintiff Martin Ware is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed a complaint in this action which was dismissed with leave to amend on January 11, 2017. (ECF No. 19.) On March 22, 2017, Plaintiff's first amended complaint was dismissed for failure to state a claim. (ECF No. 24.) Plaintiff was granted one final opportunity to file an amended complaint. Currently before the Court is Plaintiff's second amended complaint, filed May 11, 2017. (ECF No. 26.)

         I. SCREENING REQUIREMENT

         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 on which relief may be granted, ” or that “seek[] monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

         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, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate that each defendant personally participated in the deprivation of Plaintiff's rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).

         Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). To survive screening, Plaintiff's claims must be facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and “facts that are ‘merely consistent with' a defendant's liability” falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.

         II. ALLEGATIONS IN AMENDED COMPLAINT

         The incidents in the second amended complaint occurred after Plaintiff was transferred to Kern Valley State Prison. While somewhat unclear, Plaintiff's second amended complaint appears to allege deliberate indifference to his safety based his requests to have inmates placed on his enemies list and a request to have him placed on temporary single cell status or restricted status because he cannot be housed with African-Americans, Mexicans, Hispanics, or white supremists. (Sec. Am. Compl. (“SAC”) 5, 18, [1] ECF No. 26.)

         On February 6, 2015, Plaintiff appeared for an open-line interview with Defendant J. Usher. (SAC at 23.) Plaintiff informed Defendant Usher that he had received a memorandum from G. Jaime. (SAC at 23.) Plaintiff said he was given specific instructions to follow up on his potential race based issues and ongoing enemy concerns with his assigned counselor before his upcoming annual unit classification committee review. (SAC at 23.) Defendant Usher asked Plaintiff if this was about inmate Stanley and Plaintiff told him that it was. (SAC at 23.) On January 31, 2015, Plaintiff had seen inmate Stanley on the Facility C upper yard during p.m. recreation. (SAC at 23.) Plaintiff complained that Correctional Sergeant V. Sica had completed a safety concerns assessment with Plaintiff, but his concerns had been reduced to an incompatibility issue. (SAC at 23.) Plaintiff stated that he wanted to sign off on a compatible chrono with inmate Stanley so he could remain housed safely on the Facility C upper yard and provided Defendant Usher with a copy of a compatible chrono from High Dessert State Prison. (SAC at 23.) Defendant Usher asked Plaintiff if he had security concerns and when Plaintiff stated that he did, he was placed in restraints and escorted to the program office for administrative review. (SAC at 23-24.)

         Plaintiff was transferred to the sensitive needs yard around February 6, 2015, due to enemy concerns with inmate Stanley. (SAC at 8.) Plaintiff was initially housed in D-6 cell 224, but Correctional Officer Wise arranged for Plaintiff to be transferred to another housing unit, D-1 cell 122U due to the probability that an altercation would occur if Plaintiff was housed with a member of the 25er prison gang. (SAC at 8, 10.)

         On February 26, 2015, Plaintiff asked Defendant Kaufman if he could retrieve his legal documents from another counselor. (SAC at 10.) Plaintiff needed a counselor to review a letter received from Associate Warden Jaime, dated January 2, 2015, and asked Defendant Kaufman to follow up on all of Plaintiff's potential racial issues and on-going enemy concerns regarding sensitive needs yard African American inmates before an upcoming annual classification committee review scheduled for May 21, 2015. (SAC at 10.) Defendant Kaufman asked Plaintiff when he had got to the yard. (SAC at 10.) Plaintiff responded that he was rehoused from C-5 cell 114U to D-6 cell 229U and later moved to D-1 cell 122U. (SAC at 10.) Defendant Kaufman stated that Plaintiff had been moved due to safety concerns. (SAC at 10.) Plaintiff asked to place inmate Stanley on his CDCR 812-A and asked Defendant Kaufman to call counselor Castillo to receive several documents that he needed for an upcoming unit classification committee review. (SAC at 10.) Defendant Kaufman responded that she was not able to make the call and that Plaintiff needed to submit a CDCR 22 inmate request for interview. (SAC at 10-11.)

         On August 14, 2015, Plaintiff spoke with Defendant Maria Faulkner in a private close office interview and Correctional Officer A Robles from Investigative Services was present. (SAC at 11.) Plaintiff contends that Defendant Faulkner was responding to an earlier request from Warden Bitter regarding 41 individual legal documents that were sent to Chief Deputy Warden Davey were in the possession of Facility C program administrators. (SAC at 11.) Defendant Faulkner told Plaintiff that she had not called him to her office to discuss that issue, and refused to discuss the issues Plaintiff wanted addressed. (SAC at 11.) Defendant Faulkner told Plaintiff that there was a problem with his report that he had been attacked by inmate Martinez while housed at Corcoran in 1996. (SAC at 11.) Defendant Faulkner informed Plaintiff that inmate Martinez could not be located or listed in Plaintiff's central file and that Plaintiff had not provided any real detailed information to identity the inmate. (SAC at 11.)

         Plaintiff asked if he could summarize a victim statement in the presence of Officer Robles that Officer Burtton witnessed an attack and Plaintiff was slashed on the left side of the neck. (SAC at 11.) Officer Childs gathered evidence and asked Plaintiff to testify against inmate Martinez, but Plaintiff had declined because inmate Martinez was a known prison gang associate of the Mexican Mafia. (SAC at 12.) Plaintiff explained that inmate Martinez was an active southern from a Hispanic street gang from “San Diego National SUR Southern United Race 13 trecez” and that Martinez had been convicted of an execution style murder and was known by the aka “Sleepy. (SAC at 12.) Inmate Martinez had been assigned to Plaintiff's cell in security housing unit at Corcoran. (SAC at 12.) Plaintiff stated he had been stabbed by inmate Martinez on September 4, 1996. (SAC at 12.)

         Defendant Faulkner asked why inmate Martinez had stabbed Plaintiff. (SAC at 12.) Plaintiff responded that he had been identified as having been in protective custody while incarcerated at the West Valley Detention Center County Jail in Rancho Cucamonga, San Bernardino. (SAC at 12.) Defendant Faulkner asked Plaintiff if he was sure of the date because she was unable to find inmate Martinez in the system and asked if Plaintiff knew inmate Martinez' prison number. (SAC at 12.) Plaintiff responded that he did not remember inmate Martinez' prison number but there was a medical report of his injury in his medical file. (SAC at 12.) Defendant Faulkner told Plaintiff that his medical files were private and did not conduct a further inquiry stating that she could not review his medical records. (SAC at 12.) Plaintiff continued to insist that the warden at Corcoran had authorized a CDC 128-G classification chrono. (SAC at 12.)

         In 1996, Plaintiff was a victim of several incidents with Mexican Mafia gang members. (SAC at 13.) Corcoran did not take adequate measures to address Plaintiff's security concerns. (SAC at 13.) Plaintiff informed Defendant Faulkner that while the warden at Corcoran authorized an investigation, Plaintiff was transferred to another institution. (SAC at 13.) Defendant Faulkner told Plaintiff that there were so many inmates with the last ...


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