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Kiner v. Yang

United States District Court, E.D. California

December 19, 2019

AARON KINER, Plaintiff,
D. YANG, Defendant.



         Plaintiff is a pre-trial detainee proceeding without counsel in this action brought pursuant to 42 U.S.C. § 1983 who seeks leave to proceed in forma pauperis. ECF No. 2.

         Application to Proceed in Forma Pauperis

         Plaintiff's application and trust fund statement (ECF No. 4) make the showing required by 28 U.S.C. § 1915(a)(1). Accordingly, plaintiff's request to proceed in forma pauperis is granted.


         I. Legal Standards

         Pursuant to § 1915(e)(2), the court must dismiss the case at any time if it determines the allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against an immune defendant.

         Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972), a complaint, or portion thereof, should be dismissed for failure to state a claim if it fails to set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff's obligation to provide the ‘grounds' of his ‘entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of a cause of action's elements will not do. Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the complaint's allegations are true.” Id. (citations omitted). Dismissal is appropriate 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).

         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 Hosp. 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). A pro se plaintiff must satisfy the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include 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.” Twombly, 550 U.S. at 562-563 (2007).

         II. Analysis

         Plaintiff raises two separate claims against defendant Yang. One is cognizable and the other is not. First, plaintiff alleges that, on an unidentified date in 2019, he was elected by the inmate population to the Institutional Men's Advisory Committee at the California Health Care Facility. ECF No. 1 at 3. Plaintiff alleges that, after assuming this position, defendant Yang “enacted a campaign of continued retaliation against him.” Id. He claims that, at some point thereafter, he reported Yang to prison command staff for denying inmates bottled water during a deadly outbreak of Legionnaire's Disease. Id. After plaintiff made these reports, Yang allegedly began to call plaintiff a “snitch” in the presence of other inmates. Id. Yang also began telling other inmates that plaintiff was to blame for any and all misfortunes which befell the unit. Id. The foregoing allegations, taken as true, are sufficient to state a First Amendment retaliation claim against Yang.

         Plaintiff also claims that Yang violated his Eighth Amendment rights by “placing [him] in harm's way.” Id. at 4. He again references Yang's propensity to call him a “snitch” and to tell other inmates that plaintiff was to blame for, inter alia, delays in mail delivery and access to the prison canteen. Id. Plaintiff does not, however, allege that any actual attack or physical injury befell him as a consequence of Yang's actions. Nor does plaintiff allege any specific instances of being threatened by other inmates due to Yang's incitements against him. Rather, the injury he alleges appears to be that he was exposed to an elevated risk of attack. Such speculative and generalized fears of harm are insufficient to sustain an Eighth Amendment claim. See Williams v. Wood, 223 Fed.Appx. 670, 671, 2007 WL 654223, *1 (9th Cir. 2007) (unpublished).

         III. Leave to Amend

         Accordingly, plaintiff may proceed only with the retaliation claim identified by the court as cognizable. Or he may file an amended complaint which ...

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