(PC) Wheaton v. McComber

7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA GENE PAUL WHEATON, Case No. 2:22-cv-01434-JDP (PC) 11 Plaintiff, ORDER 12 v. J. MCCOMBER, et al., 14 Defendants.

20 Plaintiff, a state prisoner, has filed a third amended complaint alleging that defendants violated his Eighth Amendment rights by assigning him an “R-Suffix” prisoner classification, thereby causing him to be attacked by unknown assailants. ECF No. 18 at 3. This allegation fails to state a cognizable claim; I will give plaintiff one final opportunity to amend before recommending that this action be dismissed.

2 Screening Order 3 I. Screening and Pleading Requirements 4 A federal court must screen a prisoner’s complaint that seeks relief against a governmental entity, officer, or employee. See 28 U.S.C. § 1915A(a). The court must identify any cognizable claims and dismiss any portion of the complaint that is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. See 28 U.S.C. §§ 1915A(b)(1), (2).

9 A complaint must contain a short and plain statement that plaintiff is entitled to relief, Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S. 13 662, 678 (2009). If the allegations “do not permit the court to infer more than the mere possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 1038 (9th Cir. 2016). Instead, what plaintiff must state is a “claim”—a set of “allegations that give rise to an enforceable right to relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264 n.2 (9th Cir. 2006) (en banc) (citations omitted).

19 The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404 20 U.S. 519, 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint “if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017).

23 However, “‘a liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).

2 II. Analysis 3 Plaintiff alleges that sometime in 2018 he was assigned an “R-Suffix” by the “ICC/UCC committee” at California State Prison-Sacramento. ECF No. 18 at 3. He claims that he suffered an unprovoked attack by other inmates because of this designation. Id. at 8. These allegations do not state a viable Eighth Amendment claim. To state a viable Eighth Amendment failure to protect claim, plaintiff must allege facts demonstrating that (1) he faced a “substantial risk of serious harm” to his health or safety, and (2) that defendants were deliberately indifferent to those risks. Farmer v. Brennan, 511 U.S. 825, 837 (1994). To establish deliberate indifference plaintiff must show that the defendants knew of and disregarded a substantial risk of serious harm to his health and safety. Id. Here, plaintiff has not alleged any specifics about the attack or what knowledge any defendant had about it. Instead, he alleges legal conclusions like “[defendants] personally knew of those risk[s], but failed to prevent them.” ECF No. 18 at 8. Such bare allegations are insufficient to meet pleading standards. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”).

17 Indeed, plaintiff alleges that his assailants were “unknown” and “unprovoked,” thus it is uncertain how he knows that defendants knew of and were positioned to prevent the attack or even whether the attack was premised on his new classification. ECF No. 18 at 11. Such omissions are fatal to his failure to protect claim. See Adams v. Cal. Men’s Colony State Prison, NO. CV 19-8857-SB (AGR), 2020 U.S. Dist. LEXIS 248100, *11 (C.D. Cal. Dec. 2020) (collecting cases and noting that “[n]umerous courts have found that an inmate does not state an Eighth Amendment failure- to-protect claim based on his R suffix classification absent facts showing that other inmates were aware of his R suffix and that the defendants were aware of specific threats to him”).

25 I note that plaintiff does not appear to raise a due process claim related to the affixation of the “R-Suffix.” Even if such a claim could be inferred, however, it would not be cognizable based on the allegations here. Assuming that the designation with the suffix invokes a protected liberty interest, plaintiff has not alleged that he was denied the procedural protections required | under the Due Process clause. Those protections are: (1) written notice of the charges at least 24 | hours prior to the hearing; (2) a written statement by the fact-finder of the evidence relied on and | reasons for the classification decision; (3) the right to call witnesses and present documentary | evidence if doing so will not jeopardize institutional safety or correctional goals; (4) the right to || appear before an impartial body; and (5) assistance from fellow inmates or prison staff in | complex cases. Wolff v. McDonnell, 418 U.S. 539, 563-72 (1974). Plaintiff has not alleged any | deprivation of the foregoing procedures with particularity.

8 Given that plaintiffs first and second amended complaints were filed together, I will | grant him one additional and final opportunity to amend before recommending this action be || dismissed.

11 Accordingly, it is ORDERED that: 12 1. Within thirty days from the service of this order, plaintiff may file an amended | complaint. If he does not, I will issue findings and recommendations that the complaint be | dismissed for failure to state a cognizable claim.

15 2. The Clerk of Court is directed to send plaintiff a complaint form.

7 IT IS SO ORDERED.

18 ( q oy — Dated: _ May 17, 2023 Q——— 19 JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE