1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 KENNETH ALLAN COOPER, 11 Case No. 20-04658 BLF (PR) Plaintiff, 12 ORDER OF DISMISSAL v. 13

14 K. ALLISON, et al., 15 Defendants. 16 17

18 Plaintiff, a state prisoner currently housed at the San Quentin State Prison 19 (“SQSP”), filed the instant pro se civil rights action pursuant to

against 20 SQSP prison officials and CDCR officials. Dkt. No. 1. The Court dismissed the 21 complaint with leave to amend to attempt to state a cognizable failure to protect claim 22 under the Eighth Amendment against Defendants Malikian and Broomfield and found the 23 allegations against Defendants Allison and Diaz insufficient to state a claim. Dkt. No. 16. 24 Plaintiff has filed an amended complaint. Dkt. No. 17. 25 26 DISCUSSION 27 A. Standard of Review 1 prisoner seeks redress from a governmental entity or officer or employee of a 2 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 3 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 4 upon which relief may be granted or seek monetary relief from a defendant who is immune 5 from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally 6 construed. See Balistreri v. Pacifica Police Dep’t,

(9th Cir. 1988). 7 To state a claim under

, a plaintiff must allege two essential 8 elements: (1) that a right secured by the Constitution or laws of the United States was 9 violated, and (2) that the alleged violation was committed by a person acting under the 10 color of state law. See West v. Atkins,

(1988). 11 B. Plaintiff’s Claims 12 The Eighth Amendment requires that prison officials take reasonable measures to 13 guarantee the safety of prisoners. Farmer v. Brennan,

(1994). In 14 particular, prison officials have a duty to protect prisoners from violence at the hands of 15 other prisoners.

; Cortez v. Skol,

(9th Cir. 2015); Hearns v. 16 Terhune,

(9th Cir. 2005). The failure of prison officials to protect 17 inmates from attacks by other inmates or from dangerous conditions at the prison violates 18 the Eighth Amendment when two requirements are met: (1) the deprivation alleged is, 19 objectively, sufficiently serious; and (2) the prison official is, subjectively, deliberately 20 indifferent to inmate health or safety. Farmer,

. A prison official is 21 deliberately indifferent if he knows of and disregards an excessive risk to inmate health or 22 safety by failing to take reasonable steps to abate it.

. Allegations in a pro se 23 complaint sufficient to raise an inference that the named prison officials knew that plaintiff 24 faced a substantial risk of serious harm and disregarded that risk by failing to take 25 reasonable measures to abate it state a failure-to-protect claim. See Hearns,

1041-42 (citing Farmer,

). 1 named Cucok on July 25, 2018, which resulted in a head injury. Dkt. No. 1 at 4-5. 2 Plaintiff was returning to his cell and was waiting on the upper-yard while inmates from 3 another section were being escorted to “chow.”

Defendant Malikian was escorting the 4 inmates when Inmate Cucok ran away from the line and attacked Plaintiff. Dkt. No. 1-2 at 5 13. Plaintiff claimed the assault was a result of the change in custody status of general 6 population (“GP”) to non-designated (“ND”) status on or about January 1, 2018, which 7 integrated special needs (“SNY”) prisoners with the GP in Non-Designated Programming 8 Facilities (“NDPFs”). Id. at 10. Plaintiff claimed that there is an inference that Defendants 9 knew of a substantial risk of harm in integrating SNY and GP inmates because the risk was 10 obvious. Id. at 11. However, the Court found Plaintiff was making conclusory claims 11 based on speculation. Dkt. No. 16 at 3. Nowhere did Plaintiff allege that Inmate Cucok 12 was a GP inmate who intentionally targeted Plaintiff because he knew Plaintiff was 13 [formerly] an SNY inmate. Id. Nor did Plaintiff allege that any named Defendant was 14 aware that Plaintiff was likely to be attacked at that time and yet failed to take steps to 15 protect him. Id. In dismissing the original complaint with leave to amend, the Court 16 specifically granted Plaintiff an opportunity to state sufficient facts to state a failure to 17 protect claim under the Eighth Amendment against Defendants Malikian and Warden 18 Broomfield. Dkt. No. 16 at 5-6. The Court found there were insufficient facts to state a 19 failure to protect claim against Defendant Allison and Diaz who are not directly involved 20 in the operation of specific prisons like SQSP, including the escort of inmates to and from 21 parts of the prison. Id. at 6. 22 Plaintiff has filed an amended complaint which does not remedy the deficiencies 23 from the original complaint. He again names the CDCR Director Kathleen Allison and 24 Secretary Ralph Diaz as defendants, as he did in the original complaint, and also names 25 Warden Ron Davis as a new defendant. Dkt. No. 17 at 2. Plaintiff makes no attempt to 26 state a claim against Defendants Malikian and Broomfield as instructed by the court order. 1 result of the change in his custody designation from “GP” to “ND,” which made him a 2 target throughout the GP population, and that Defendants are therefore liable for his 3 injuries. Id. at 5. Plaintiff attached a copy of the inmate grievance he filed on the incident, 4 Dkt. No. 17 at 34-37, the responses at all three levels of review, id. at 9-13, and the 5 relevant incident reports, id. at 21-33. A review of these papers reveals no indication of 6 what motivated Inmate Cucok to attack Plaintiff on July 25, 2018. There is no indication, 7 for example, that Inmate Cucok knew Plaintiff or that he targeted Plaintiff due to a change 8 in his custody status. Furthermore, Officer Malikian’s incident report states that Inmate 9 Cucok was being escorted “for orientation into the Non-Designated program” at the time 10 of the assault, Dkt. No. 17 at 24, and when Inmate Cucok was interviewed after the assault, 11 he stated that “he [was] unwilling to program in San Quentin Non-Designated Program.” 12 Id. at 21. This information indicates that Inmate Cucok may have acted out because he did 13 not wish to participate in the ND program, perhaps because he himself was a SNY inmate, 14 and his attack on Plaintiff was a random act of violence rather than a targeted attack. 15 Without more specific factual allegations rather than conclusory statements, Plaintiff fails 16 to show that his change in custody designation was causally linked to the assault by Inmate 17 Cucok. 18 Furthermore, Plaintiff fails to state sufficient facts to state a failure to protect claim 19 against Defendants Allison, Diaz, and Davis based on what appears to be no more than a 20 random assault by Inmate Cucok. Plaintiff is attempting to link his injury to the several 21 lawsuits that have been filed against these Defendants for injuries allegedly resulting from 22 the implementation of NDPFs. Dkt. No. 17 at 16-20. However, as Plaintiff has previously 23 been advised, liability may be imposed on an individual defendant under

24 if the plaintiff can show that the defendant’s actions both actually and proximately caused 25 the deprivation of a federally protected right. Lemire v. Cal. Dept. of Corrections & 26 Rehabilitation,

(9th Cir. 2013); Leer v. Murphy,

, 634 1 and responsibilities of each individual defendant whose acts or omissions are alleged to 2 have caused a constitutional deprivation. See Leer,

(citations omitted). 3 An official will not be liable if he has not played a role in the violation of the plaintiff’s 4 rights. Hines v. Youseff,

(9th Cir. 2019). Here, Plaintiff has failed to 5 show that the actions of the named Defendants both actually and proximately caused the 6 assault by Inmate Cucok. Like the original complaint, the amended complaint contains no 7 allegation that these Defendants were individually aware of Plaintiff’s particular 8 circumstances and that they played a role in the violation of his rights. As discussed 9 above, there is no factual allegation that Inmate Cucok attacked Plaintiff because of the 10 change in custody designation or the integration of SNY and GP inmates. See supra at 4. 11 Rather, the lack of evidence with regard to motive indicates that the attack was a random 12 act of violence that occurred not during yard time, but while inmates happened to be 13 passing each other in a common area. Although Plaintiff asserts that he has offered 14 “multifarious material facts that equate to triable issues,” he has merely raised questions 15 without any factual allegations to support his conclusory claims. Dkt. No. 17 at 5. 16 Although given another opportunity to do so, Plaintiff has shown that he cannot allege 17 sufficient facts to show the individual involvement of these Defendants who are not 18 directly involved in the day-to-day operations of specific prisons like SQSP. Accordingly, 19 the Eighth Amendment claim against them must be dismissed for failure to state a claim 20 for relief. 21 The amended complaint is DISMISSED without leave to amend because Plaintiff 22 was already afforded one opportunity to amend and the Court finds no good cause to grant 23 him another opportunity where the deficiencies from the original complaint remain the 24 same. Wagh v. Metris Direct, Inc.,

(9th Cir. 2003) (district court’s 25 discretion to deny leave to amend particularly broad where plaintiff has previously filed an 26 amended complaint); Ferdik v. Bonzelet,

(9th Cir. 1992). 1 CONCLUSION 2 For the foregoing reasons, the amended complaint is DISMISSED for failure to 3 || state a claim for which relief can be granted. 4 IT IS SO ORDERED. 5 || Dated: _ June 4, 2021 Aen Phys home) 6 BETH LABSON FREEMAN United States District Judge 7 8 9 10 1] g

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