1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 FORREST GRAY, No. 2:23-cv-02526-DC-EFB (PC) 12 Plaintiff, 13 v. ORDER AND FINDINGS AND

RECOMMENDATIONS

14 KONRAD, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 18 U.S.C. § 1983. Plaintiff initiated this action on June 16, 2023 and filed his first amended 19 complaint (FAC) on February 15, 2023. ECF Nos. 1 and 17. After screening the FAC, this court 20 found that plaintiff had stated potentially cognizable Eighth Amendment claims against 21 defendants Konrad and Lujan.1 ECF No. 21. Defendant Konrad now moves to dismiss the FAC 22 on the ground that plaintiff has failed to state a claim. ECF No. 31. Plaintiff has also filed a 23 motion for a protective order, which defendant Konrad has opposed. ECF Nos. 33 and 36. For 24 the following reasons, it is recommended that defendant’s motion to dismiss be GRANTED with 25 leave to amend and plaintiff’s motion for a protective order be DENIED. 26 1 At the time defendant Konrad’s motion to dismiss was filed, defendant Lujan, who had 27 not been identified or served, was referred to as Zlujman,. ECF No. 25. Defendant Lujan has now been served and has filed an answer indicating the correct name of Lujan. ECF No. 46. 28 Henceforth, the court will refer to any references to “defendant Zlujman” as “defendant Lujan.” 1 I. Plaintiff’s Allegations2 2 Plaintiff is currently incarcerated at the California State Prison in Sacramento (CSP-SAC) 3 where the events in his FAC took place. ECF No. 17 at 1. According to plaintiff, on June 21, 4 2022, defendant Lujan, a correctional officer, came to retrieve plaintiff from “R&R” and escort 5 him to “B-Yard.” Id. Plaintiff alleges that he told defendant Lujan that the yard would be 6 dangerous for him because he had previously fought with an inmate called “Sally” who was a 7 member of the Crips gang, and another member had threatened to retaliate against plaintiff. Id. 8 Despite this, Lujan forced plaintiff to go to B-yard. Id. at 1-2. 9 Plaintiff also alleges that on or around June 26, 2022, defendant Konrad, a captain at CSP- 10 SAC, walked through the section of the prison where plaintiff was residing, and plaintiff tried to 11 get Konrad’s attention. Id. at 2. According to plaintiff, Konrad talked to inmate Taylor in front 12 of plaintiff’s cell. Id. Taylor asked Konrad what “they” were going to do to plaintiff, and Konrad 13 stated “kill him.” Id. On June 28, 2022, Taylor tried to “extort” plaintiff to go to the store or 14 outside to fight “Sally’s home boy Psycho.” Id. 15 Plaintiff later attended a “committee” presided by Konrad on June 29, 2022. According to 16 the TAC, plaintiff maintained that he was in danger from Crips members because of his fight with 17 Sally, and Konrad allegedly responded that “with all of the violence you have, no way am I going 18 to save you.” Id. at 2-3. 19 On July 1, 2022, inmates Davis and Taylor came to plaintiff’s cell. Id. Davis then 20 attacked plaintiff before the door to his cell could be closed. Id. On July 2, 2022, inmate Davis 21 attacked and stabbed plaintiff with a weapon on the yard. Id. Defendant Lujan was responsible 22 for screening prisoners that day before they entered the yard, and Lujan allegedly permitted Davis 23 to walk past him. Id. at 4. According to plaintiff, defendants Konrad and Lujan were deliberately 24 indifferent to his safety, allowing him to be attacked. Id. Plaintiff requests, inter alia, declaratory 25 relief, and compensatory and punitive damages. Id. at 5.3

26 2 These allegations are from the FAC and are accepted as true for the purposes of this motion. 27 3 Plaintiff has also attached two exhibits to his FAC “to show deliberately indifferen[ce]”. 28 1 II. Legal Standards 2 A. Motion to Dismiss 3 A complaint may be dismissed for “failure to state a claim upon which relief may be 4 granted.” Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss for failure to state a claim, a 5 plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell 6 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has “facial plausibility when the 7 plaintiff pleads factual content that allows the court to draw the reasonable inference that the 8 defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 9 (citing Twombly, 550 U.S. at 556). The plausibility standard is not akin to a “probability 10 requirement,” but it requires more than a sheer possibility that a defendant has acted unlawfully. 11 Iqbal, 556 U.S. at 678. 12 Dismissal under Rule 12(b)(6) may be based on either: (1) lack of a cognizable legal 13 theory, or (2) insufficient facts under a cognizable legal theory. Chubb Custom Ins. Co., 710 F.3d 14 at 956. Dismissal also is appropriate if the complaint alleges a fact that necessarily defeats the 15 claim. Franklin v. Murphy, 745 F.2d 1221, 1228-1229 (9th Cir. 1984). In resolving a Rule 16 12(b)(6) motion to dismiss, the court must construe the complaint in the light most favorable to 17 the plaintiff and accept all well-pleaded factual allegations as true (and any reasonable inference 18 supported by the facts). Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003). 19 For purposes of dismissal under Rule 12(b)(6), the court generally considers only 20 allegations contained in the pleadings, exhibits attached to the complaint, and matters properly 21 subject to judicial notice, and construes all well-pleaded material factual allegations in the light 22 most favorable to the nonmoving party. Chubb Custom Ins. Co. v. Space Sys./Loral, Inc., 710 23 F.3d 946, 956 (9th Cir. 2013); Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012). 24 B. Deliberate Indifference to Safety Conditions/Failure to Protect 25 To prevail on a clam under section 1983, a plaintiff must demonstrate: (1) the violation of 26 a federal constitutional or statutory right; and (2) that the violation was committed by a person 27 acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). An individual defendant 28 is not liable on a civil rights claim unless the facts establish the defendant’s personal involvement 1 in the constitutional deprivation or a causal connection between the defendant’s wrongful conduct 2 and the alleged constitutional deprivation. Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989). 3 “Prison officials have a duty . . . to protect prisoners from violence at the hands of other 4 prisoners.” Farmer v. Brennan, 511 U.S. 825, 833 (1994) (citations omitted). The failure of 5 prison officials to protect inmates from attacks by other inmates may rise to the level of an Eighth 6 Amendment violation when: (1) the deprivation alleged is “objectively, subjectively serious” and 7 (2) the prison officials had a “sufficiently culpable state of mind,” acting with deliberate 8 indifference. Farmer, 511 U.S. at 834 (internal quotations omitted). “Deliberate indifference 9 entails something more that mere negligence . . . [but] is satisfied by something less than acts or 10 omissions for the very purpose of causing harm or with knowledge that harm will result.” Id. at 11 835. To show deliberate indifference, “an inmate must prove that the official was both aware of 12 facts from which the inference could be drawn that substantial risk of serious harm existed, and 13 he must also have drawn the inference.” Wallis v. Baldwin, 70 F.3d 1074, 1077 (9th Cir. 1995) 14 (internal quotation marks omitted). Defendants violate the Eighth Amendment only if they were 15 deliberately indifferent to the risk of harm in question, meaning they knew of it yet failed to take 16 reasonable measures to ensure prisoners’ safety. Farmer, 511 U.S. at 837; Wilson v. Seiter, 501 17 U.S. 294; 302-02 (1991); Hearns v. Terhune, 413 F.3d 1036 (9th Cir. 2005). 18 Furthermore, to state a claim under section 1983, the plaintiff must allege an actual 19 connection or link between the actions of the named defendants and the alleged deprivations. See 20 Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). “A person ‘subjects’ another to the 21 deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative act, 22 participates in another’s affirmative act, or omits to perform an act which he is legally required to 23 do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 24 (9th Cir. 1978). Vague and conclusory allegations concerning the involvement of official 25 personnel in civil rights violations are not sufficient. Ivey v. Bd. Of Regents, 673 F.2d 266, 268 26 (9th Cir. 1982). Rather, the plaintiff must set forth specific facts as to each individual defendant’s 27 causal role in the alleged constitutional deprivation. Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 28 1988). 1 Supervisory personnel are generally not liable under section 1983 for the actions of their 2 employees. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (“There is no respondeat 3 superior liability under § 1983.”). A supervisor is only liable for the constitutional violations of 4 subordinates if the supervisor participated in or directed the violations, or had actual knowledge 5 of the violations and failed to act to prevent them. Id. When a defendant holds a supervisory 6 position, the causal link between him and the claims of constitutional violation must be 7 specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 8 589 F.2d 438, 441 (9th Cir 1978). 9 III. Analysis 10 Plaintiff alleges that defendant Konrad was deliberately indifferent to his safety in prison, 11 specifically to the risks plaintiff allegedly faced from members of the Crips gang. Defendant 12 Konrad maintains that plaintiff has not properly stated a claim for relief against him, and that he 13 should be dismissed from the FAC. 14 A. Incorporation By Reference 15 Defendant first maintains that the classification committee report for the June 29, 2022 16 hearing, which the complaint refers to as the “Classification Report”4 (hereafter “CR”), should be 17 incorporated by reference into plaintiff’s FAC. Plaintiff states in his complaint that he is 18 attaching the CR “to show deliberately [sic] indifferen[ce]”, and it is attached as Exhibit 1. ECF 19 No. 17 at 4, 7-12. Defendant does not dispute that the pages attached are a portion of the CR and 20 part of plaintiff’s central file. ECF No. 31-1. 21 Consideration of documents incorporated by reference in a complaint can be appropriate 22 in certain circumstances. See, e.g., Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994), overruled 23 on other grounds, Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002). Here, the 24 CR is referenced in the complaint; plaintiff explicitly states he is relying on it for support of his 25 claim of deliberate indifference; and neither party has raised any dispute as to its authenticity.5 26 4 ECF No. 17 at 4, 16-21. 27 5 Plaintiff’s opposition (ECF No. 36) argues that the CR is incomplete, and does not 28 reflect all that happened in the hearing, but he does not contend that what he attached to his FAC 1 Thus, the court finds the CR appropriate for consideration in the analysis of defendant’s motion to 2 dismiss. See Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010) (stating “[w]e 3 have extended the doctrine of incorporation by reference to consider documents in situations 4 where the complaint necessarily relies upon a document or the contents of the document are 5 alleged in a complaint, the document’s authenticity is not in question and there are no disputed 6 issues as to the document’s relevance.”). 7 Certain aspects of the CR contradict plaintiff’s assertions as pled in his FAC. See infra. 8 The court, however, may disregard allegations contradicted by a complaint’s attached exhibits. 9 Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987); Steckman v. Hart Brewing, 10 Inc., 143 F.3d 1292, 1295-96 (9th Cir. 1998). 11 B. Objective Component 12 Defendant argues that plaintiff has not sufficiently pled that defendant’s acts or omissions 13 were “objectively, subjectively serious” such that plaintiff was deprived of the “minimal civilized 14 measure of life’s necessities.” Farmer, 511 U.S. at 834. To be liable, a defendant must know 15 that a plaintiff faces “a substantial risk of serious harm and disregards that risk by failing to take 16 reasonable measure to abate it.” Id. at 847. Specifically, defendant maintains that plaintiff has 17 not adequately pled that someone in defendant’s position would have perceived an obvious risk to 18 plaintiff’s safety from: 1) an attack on plaintiff by inmates David and/or Taylor in front of 19 plaintiff’s cell, which occurred on July 1; or 2) placing plaintiff in-B yard, where he was stabbed 20 on July 2. ECF No. 17 at 3-4. 21 “Prison officials have a duty . . . to protect prisoners from violence at the hands of other 22 prisoners.” Farmer, 511 U.S. at 833. Here, however, plaintiff has not pled facts demonstrating 23 that defendant knew of an obvious or excessive risk to plaintiff from inmates Davis and/or 24 Taylor, or if plaintiff went to B-yard. Defendant Konrad was the chairperson of plaintiff’s 25 classification committee hearing on June 29, 2022. ECF No. 17 at 8. According to the TAC, 26 plaintiff maintained at the hearing that he was in danger from Crips members because of his fight 27 with Sally, and Konrad allegedly responded: “with all of the violence you have, no way am I

28 is not an authentic copy of the CR. 1 going to save you.” Id. at 2-3. The CR, however, incorporated by reference into the TAC, does 2 not reflect that plaintiff notified defendant of any safety concerns with Crips members, or with 3 inmates Davis or Taylor. ECF No. 17 at 7-13. 4 As discussed, supra, the court may disregard allegations contradicted by a complaint’s 5 attached exhibits. Durning, 815 F.2d at1267; Steckman, 143 F.3d at 1295-96. Here, the TAC’s 6 allegations that plaintiff informed defendant Konrad that plaintiff was in danger from the Crips is 7 contradicted by the CR that plaintiff attached as an exhibit. Even construing the FAC in the light 8 most favorable to the plaintiff, Broam, 320 F.3d at 1028, and assuming plaintiff did inform 9 defendant that plaintiff was in danger from the Crips, plaintiff does not assert anywhere that 10 defendant was specifically informed that plaintiff faced an obvious and significant risk from 11 inmate Davis and/or Taylor (who are not alleged to be Crips members) or from being in B-yard. 12 ECF No. 17. Plaintiff does allege that he informed defendant Lujan that he would be in danger in 13 the yard because he had had a fight with “Sally”, a member of the Crips gang on March 18, 2022, 14 and another Crips-affiliated inmate had then threatened to retaliate against plaintiff. ECF No. 17 15 at 1-2. He does not allege, however, that he informed defendant Konrad of this fight, and even if 16 he had, a fight with “Sally” in March 2022 does not give rise to an obvious and excessive risk of 17 harm to plaintiff from different inmates several months later. 18 Plaintiff alleges that he tried to get defendant Konrad’s attention on June 26, 2022, shortly 19 before he was attacked on July 1 and July 2. According to plaintiff, defendant Konrad spoke to 20 inmate Taylor, who asked what “they” were going to do with plaintiff, and Konrad responded 21 “Kill him.” ECF No. 17 at 2. Even construed in the light most favorable to plaintiff, this vague 22 exchange that does not identify who “they” are, is not sufficient to demonstrate that defendant 23 Konrad was alerted to a substantial risk of serious harm from inmates Davis and/or Taylor or 24 from other inmates in B-yard. Nor does it indicate that defendant was aware of plaintiff’s fight 25 with “Sally” and potential retaliation from Crips members. Accordingly, plaintiff has not 26 adequately pled that defendant Konrad knew that plaintiff faced “a substantial risk of serious 27 harm and disregard[ed] that risk by failing to take reasonable measure to abate it.” Farmer, 511 28 U.S. at 847. 1 C. Subjective Component 2 Defendant also maintains that plaintiff has not adequately pled the subjective component 3 of an Eighth Amendment claim, i.e. that defendant Konrad demonstrated a “deliberate 4 indifference to a substantial risk of serious harm.” Farmer, 511 U.S. at 836. Although the court 5 has already determined that plaintiff has not adequately pled the objective component of an 6 Eighth Amendment claim, it will address the subjective component in the event that plaintiff 7 chooses to amend his complaint. 8 For the subjective component, “a prison official must have a ‘sufficiently culpable state of 9 mind.’” Farmer, 511 U.S. at 834 (quoting Wilson, 501 U.S. at 302-03; and collecting cases). 10 Mere negligence is not sufficient. Id. at 835. Rather, “a prison official cannot be found 11 liable . . . unless the official knows of and disregards an excessive risk to inmate health or safety; 12 the official must both be aware of facts from which the inference could be drawn that a 13 substantial risk of serious harm exists, and he must also draw the inference.” Id. at 837. 14 As discussed supra, and according to plaintiff’s complaint, plaintiff did not speak to 15 defendant during their encounter on June 26, 2022. In addition, the CR specifically relied upon 16 by plaintiff to show deliberate indifference (ECF No. 17 at 4) does not demonstrate that plaintiff 17 disclosed to defendant and others on the committee that he had a specific fear of the members of 18 the Crips gang, of inmates Taylor or Davis, of “Sally” who had previously attacked plaintiff, or of 19 B yard. Id. at 7-13. In fact, the CR reflects that when plaintiff is informed that he will be 20 programmed “in B EOP”, plaintiff agrees with the placement decision. Id. at 8. 21 Defendant Konrad did not fail to protect plaintiff from serious harm because plaintiff has 22 not adequately alleged that defendant was even aware that plaintiff was at serious risk of harm 23 from Crips members, or from inmates Davis or Taylor. Plaintiff does not posit that Defendant 24 Konrad was aware of his alleged fight with “Sally” on March 18, 2022 and how inmate Taylor 25 and Davis are associated with that encounter. ECF No. 17. To the extent plaintiff is alleging that 26 defendant “knew or should have known” of a serious risk to plaintiff, such an allegation “is not 27 sufficient to establish deliberate indifference. [Rather], [p]laintiff must demonstrate that 28 [defendant] had actual knowledge” of a risk of serious harm. Hollis v. York, 2009 WL 3255375, 1 *8 (E.D. Cal. Oct 8, 2009).6 This he does not do. As such, the FAC fails to state an Eighth 2 Amendment claim against defendant Konrad. 3 D. Leave to Amend 4 In general, leave to amend is to be freely granted. Fed. R. Civ. P. 15(a). Plaintiff has only 5 amended his complaint once, and although defendant urges this court to deny plaintiff leave to 6 amend, the court will permit plaintiff another opportunity to state a claim. Plaintiff is cautioned 7 that the court will not be inclined to allow further leave to amend if his second amended 8 complaint fails to cure these defects. 9 Plaintiff is also cautioned that any amended complaint must identify as a defendant only 10 persons who personally participated in a substantial way in depriving him of his constitutional 11 rights. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the 12 deprivation of a constitutional right if he does an act, participates in another’s act or omits to 13 perform an act he is legally required to do that causes the alleged deprivation). The amended 14 complaint must also contain a caption including the names of all defendants. Fed. R. Civ. P. 15 10(a). Plaintiff may not change the nature of this suit by alleging new, unrelated claims. See 16 George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Nor may he bring unrelated claims against 17 multiple defendants. Id. 18 Any amended complaint must be written or typed so that it so that it is complete in itself 19 without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended 20 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 21 earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 22 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter 23 being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 24 1967)). 25 //// 26 //// 27 6 It is undisputed that defendant was not present when plaintiff was harmed on July 1 and 28 2, 2022, and thus he was not in a position to physically protect plaintiff 1 E. Motion for Protective Order 2 Plaintiff has filed what he styles as a motion for a protective order. ECF No. 33. This 3 motion, which actually appears to be a motion for an injunction, does not concern any of the 4 allegations in plaintiff’s TAC. ECF No. 17. Rather, it involves allegations by plaintiff that on 5 June 3, 2021, he was molested by a Nurse Cassia after a tele-med visit with a physician. ECF No. 6 33 at 2. Plaintiff alleges he reported Nurse Cassia who then threatened him. Id. Plaintiff 7 requests protection from retaliation and retribution, and seeks to be transferred from CSP-SAC, 8 where defendant Konrad is employed. Other than this brief mention of defendant Konrad – who 9 is not alleged to have participated in or have knowledge of the incident with Nurse Cassia – there 10 is no overlap between the parties in plaintiff’s TAC, and the parties discussed in plaintiff’s 11 motion for a protective order. 12 Plaintiff has not filed a complaint regarding the incidents described in his motion for a 13 protective order, and the incidents are not related to those in the TAC. As such, plaintiff’s request 14 is not properly before this court, and this court cannot grant the requested relief. See, e.g. Powell 15 v. Rios, 241 Fed. Appx. 500, 505, fn. 4 (stating that “[a]bsent a properly-filed complaint, a court 16 lacks power to issue preliminary injunctive relief.”). Plaintiff’s motion for a protective order is 17 therefore denied. 18 IV. Recommendations 19 For the foregoing reasons, it is RECOMMENDED that: 20 1. Defendant Konrad’s motion to dismiss (ECF No. 31) be GRANTED; 21 2. Plaintiff’s motion for a protective order (ECF No. 33) be DENIED; 22 3. Plaintiff be permitted to amend his complaint within thirty days of the date of this 23 Order. 24 These findings and recommendations are submitted to the United States District Judge 25 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 26 after being served with these findings and recommendations, any party may file written 27 objections with the court and serve a copy on all parties. Such a document should be captioned 28 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 1 || within the specified time may waive the right to appeal the District Court’s order. Turner v. 2 || Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 3 on 7 ALE tins 4 || Dated: June 27, 2025 Lal tie T LAE

EDMUND F. BRENNAN

5 UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1]