United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se and in forma pauperis
with a civil rights action pursuant to 42 U.S.C. § 1983.
Plaintiff claims prison officials have failed to provide him
with safe living conditions in violation of the Eighth
Amendment. Presently before the court is plaintiff's
motion to amend the complaint (ECF No. 49), the proposed
second amended complaint (ECF No. 50), and plaintiff's
motion for preliminary injunction (ECF No. 54). For the
reasons set forth below, the court will grant the motion to
amend, screen plaintiff's second amended complaint, and
recommend that plaintiff's motion for preliminary
injunction be denied.
defendants were served in this action, plaintiff filed a
motion to amend along with a proposed second amended
complaint. (ECF Nos. 49, 50.) Defendants were directed to
file a response to plaintiff's motion. (ECF No. 51.)
Defendants indicated they did not oppose plaintiff's
motion to amend and requested the court screen the second
amended complaint pursuant to 28 U.S.C. § 1915A. (ECF
No. 55.) Accordingly, the court will grant plaintiff's
motion to amend and screen the second amended complaint (SAC)
court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or an officer or
employee of a governmental entity. See 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. See 28 U.S.C. § 1915A(b)(1) & (2).
is legally frivolous when it lacks an arguable basis either
in law or in fact. Neitzke v. Williams, 490 U.S.
319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221,
1227-28 (9th Cir. 1984). The court may, therefore, dismiss a
claim as frivolous where it is based on an indisputably
meritless legal theory or where the factual contentions are
clearly baseless. Neitzke, 490 U.S. at 327. The
critical inquiry is whether a constitutional claim, however
inartfully pleaded, has an arguable legal and factual basis.
See Franklin, 745 F.2d at 1227.
8(a)(2) of the Federal Rules of Civil Procedure
“requires only ‘a short and plain statement of
the claim showing that the pleader is entitled to
relief,' in order to ‘give the defendant fair
notice of what the . . . claim is and the grounds upon which
it rests.'” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v.
Gibson, 355 U.S. 41, 47 (1957)). However, in order to
survive dismissal for failure to state a claim a complaint
must contain more that “a formulaic recitation of the
elements of a cause of action;” it must contain factual
allegations sufficient “to raise a right to relief
above the speculative level.” Bell Atlantic,
550 U.S. at 555. In reviewing a complaint under this
standard, the court must accept as true the allegations of
the complaint in question, Hospital Bldg. Co. v. Rex
Hospital Trustees, 425 U.S. 738, 740 (1976), construe
the pleading in the light most favorable to the plaintiff,
and resolve all doubts in the plaintiff's favor.
Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).
Civil Rights Act under which this action was filed provides
Every person who, under color of [state law] . . . subjects,
or causes to be subjected, any citizen of the United States .
. . to the deprivation of any rights, privileges, or
immunities secured by the Constitution . . . shall be liable
to the party injured in an action at law, suit in equity, or
other proper proceeding for redress.
42 U.S.C. § 1983. The statute requires that there be an
actual connection or link between the actions of the
defendants and the deprivation alleged to have been suffered
by plaintiff. See Monell v. Dept. of Social Servs.,
436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362
(1976). “A person ‘subjects' another to the
deprivation of a constitutional right, within the meaning of
§ 1983, if he does an affirmative act, participates in
another's affirmative acts or omits to perform an act
which he is legally required to do that causes the
deprivation of which complaint is made.” Johnson v.
Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
supervisory personnel are generally not liable under §
1983 for the actions of their employees under a theory of
respondeat superior and, therefore, when a named defendant
holds a supervisorial position, the causal link between him
and the claimed constitutional violation must be specifically
alleged. See Fayle v. Stapley, 607 F.2d 858, 862
(9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438,
441 (9th Cir. 1978). Vague and conclusory allegations
concerning the involvement of official personnel in civil
rights violations are not sufficient. See Ivey v. Board
of Regents, 673 F.2d 266, 268 (9th Cir. 1982).
Allegations in the Second Amended Complaint
names as defendant in this action Secretary of California
Department of Corrections and Rehabilitation (CDCR), Scott
Kernan. (ECF No. 50 at 1.) Plaintiff claims he has been
deprived of safe living conditions in violation of his Eighth
Amendment rights. Plaintiff states he has been housed on a
Sensitive Needs Yard (SNY) since 2009 because of his status
as a convicted sex offender and former gang member.
(Id. at 5-6.) Plaintiff alleges that recently his
safety has become endangered due to an increase in the number
of gang members housed on SNYs. Plaintiff states he has
received rules violation reports (RVRs) when he has refused
housing assignments out of fear that potential cellmates
would assault him when they found out he was a sex offender.
(Id. at 9-10.)
alleges the policy of housing sex offenders, a group he
claims has been targeted for physical assault by other
inmates, with gang members on SNYs violates his rights. He
alleges defendant Kernan was aware of the danger to inmates
such as plaintiff because of a report by the Office of the
Inspector General published in 2015. (Id. at 14-15.)
has added an additional claim in the SAC. He alleges he
entered into an agreement with CDCR when he entered SNY.
(Id. at 18.) Plaintiff alleges that the terms of the
agreement stated that he would leave “gang politics
behind in exchange for SNY placement where he was told he
would be provided with predatory free living conditions and
an environment devoid of gangs and their politics.”
(Id. at 6, 18-19.) Plaintiff claims he has kept up
his end of the bargain by becoming an SNY prisoner, which
carries a stigma in the prison system and by severing his
ties to the Bloods ...