1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOSEPH LOPES, Case No. 1:22-cv-00162-DAD-BAM (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS

REGARDING DISMISSAL OF CERTAIN

13 v. CLAIMS AND DEFENDANTS

14 CALIFORNIA DEPARTMENT OF (ECF Nos. 1, 9, 10) CORRECTIONS, et al., 15 FOURTEEN (14) DAY DEADLINE Defendants. 16 17 I. Background 18 Plaintiff Joseph Lopes (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights 19 action pursuant to 42 U.S.C. § 1983. 20 On April 14, 2022, the Court screened Plaintiff’s complaint and found that Plaintiff stated 21 cognizable claims against Defendant Lima for failure to protect and failure to intervene in 22 violation of the Eighth Amendment, but failed to state any other cognizable claims against any 23 other defendants. (ECF No. 9.) The Court ordered Plaintiff to either file a first amended 24 complaint or notify the Court of his willingness to proceed only on the cognizable claims 25 identified by the Court. (Id.) On May 4, 2022, Plaintiff notified the Court of his willingness to 26 proceed on the cognizable claims identified by the Court. (ECF No. 10.) 27 /// 28 /// 1 II. Screening Requirement and Standard 2 The Court is required to screen complaints brought by prisoners seeking relief against a 3 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. 4 § 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous 5 or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary 6 relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 7 A complaint must contain “a short and plain statement of the claim showing that the 8 pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 9 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 10 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 11 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as 12 true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 13 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 14 To survive screening, Plaintiff’s claims must be facially plausible, which requires 15 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable 16 for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret 17 Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully 18 is not sufficient, and mere consistency with liability falls short of satisfying the plausibility 19 standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969. 20 A. Allegations in Complaint 21 Plaintiff is currently housed at California State Prison – Corcoran (“CSP – Corcoran”) in 22 Corcoran, California, where the events in the complaint are alleged to have occurred. Plaintiff 23 names the following defendants: (1) California Department of Corrections (“CDC”); and (2) 24 Correctional Officer Lima. Plaintiff alleges as follows: 25 On September 15, 2021, at approximately 7:15 p.m., while Plaintiff was performing his 26 duties as an assigned porter, Defendant Officer Lima, while performing his duties as the 4B4L 27 tower/control officer at CSP – Corcoran, intentionally opened the cell doors of two unclassified 28 inmates. Defendant Lima was fully aware of the potential risk of serious injury due to assaults as 1 there had been several prior assaults as a result of CDC policy of “integrating” General 2 Population and Protective Custody inmates. This policy, which is designed to save money, is 3 unconstitutional as it places violent inmates with nonviolent inmates, resulting in assaults and 4 serious injuries. 5 On the above date, Plaintiff was punched, kicked, and thrown down stairs, which rendered 6 Plaintiff unconscious. As a result, Plaintiff re-injured his surgically replaced hip, suffered 7 physical pain in the form of headaches and confusion, as well as emotional distress. Plaintiff 8 suffers from severe anxiety due to being unaware of when the next assault will take place as every 9 week, despite being fully aware, CDC continues to implement its integration policy resulting in 10 attacks and they deliberately take no actions to keep inmates reasonably safe. Plaintiff continues 11 to live in constant fear of assault each and every day. 12 Plaintiff alleges that the two unclassified inmates posed an obvious risk to the safety and 13 security of the inmates within the institution. The actions of Defendant Lima were deliberate, as 14 he only opened the two doors of the inmates that he was fully aware posed a risk of danger of 15 assault and also exposure to COVID. Both inmates had a bright pink sign on their door indicating 16 “Orientation” informing prison staff that they posed a danger to the population. Nevertheless, 17 Defendant Lima opened both of their doors allowing them unpermitted access to the population 18 and Plaintiff. As a result of Defendant Lima’s intentional misconduct, Plaintiff was assaulted by 19 both inmates who punched, kicked, and threw Plaintiff down a staircase. Defendant Lima, after 20 opening the doors turned his back as Plaintiff was attacked. Plaintiff was then chased from Sec. 21 B through the rotunda and attacked in Sec. C of another dayroom where the two inmates 22 proceeded to attack another inmate all while Defendant Lima continued to intentionally turn 23 away. At which point inmates started banging on their doors, causing Defendant Lima to alert his 24 panic button. 25 Plaintiff requests a declaratory judgment, compensatory and punitive damages, costs and 26 reasonable attorney’s fees, and other further relief as the Court deems just and proper. 27 /// 28 /// 1 B. Discussion 2 1. Linkage 3 The Civil Rights Act under which this action was filed provides:

4 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, 5 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 6 redress. 7 42 U.S.C. § 1983. The statute plainly requires that there be an actual connection or link between 8 the actions of the defendants and the deprivation alleged to have been suffered by Plaintiff. See 9 Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). The 10 Ninth Circuit has held that “[a] person ‘subjects’ another to the deprivation of a constitutional 11 right, within the meaning of section 1983, if he does an affirmative act, participates in another’s 12 affirmative acts or omits to perform an act which he is legally required to do that causes the 13 deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 14 Here, Plaintiff does not adequately link Defendant California Department of Corrections 15 (“CDC”) to any claims. While Plaintiff alleges that CDC’s policy of integrating general 16 population and protective custody inmates resulted in assaults and serious injuries, these 17 allegations do not state a cognizable claim, as discussed below. Plaintiff does not otherwise link 18 Defendant CDC to a specific act or omission that violated Plaintiff’s rights. 19 2. Eleventh Amendment Immunity 20 Plaintiff is attempting to sue Defendant CDC for monetary damages. Plaintiff may not 21 pursue his claims for monetary damages against Defendant CDC in its official capacity. “The 22 Eleventh Amendment bars suits for money damages in federal court against a state, its agencies, 23 and state officials in their official capacities.” Aholelei v. Dep’t. of Pub. Safety, 488 F.3d 1144, 24 1147 (9th Cir. 2007) (citations omitted). However, the Eleventh Amendment does not bar suits 25 seeking damages against state officials in their personal capacities, Hafer v. Melo, 502 U.S. 21, 30 26 (1991); Porter v. Jones, 319 F.3d 483, 491 (9th Cir. 2003), or suits for injunctive relief brought 27 against state officials in their official capacities, Austin v. State Indus. Ins. Sys., 939 F.2d 676, 680 28 n.2 (9th Cir. 1991). Thus, Plaintiff may only proceed in this action for monetary damages against 1 Defendant Lima in his individual capacity. 2 3. Challenge to CDC’s Integration Policy 3 Plaintiff may be attempting to challenge CDC’s policy of integrating general population 4 and protective custody inmates. Plaintiff alleges that there had been several prior assaults as a 5 result of this policy, and the policy is unconstitutional because it places violent inmates with 6 nonviolent inmates, resulting in assaults and serious injuries. 7 a. Facial Challenge 8 A constitutional challenge to a policy is “‘facial’ [if] it is not limited to plaintiff[’s] 9 particular case, but challenges application of the law more broadly. . . .” John Doe No. 1 v. Reed, 10 561 U.S. 186, 194 (2010) (facial challenges “reach beyond the particular circumstances of these 11 plaintiffs.”) Facial challenges are disfavored. Wash. State Grange v. Wash. State Republican 12 Party, 552 U.S. 442, 450 (2008). “A facial challenge to a [policy] is, of course, the most difficult 13 challenge to mount successfully, since the challenger must establish that no set of circumstances 14 exists under which the [policy] would be valid. The fact that the [policy] might operate 15 unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly 16 invalid[.]” United States v. Salerno, 481 U.S. 739, 745 (1987). 17 Here, Plaintiff has not alleged any facts demonstrating that implementation of CDC’s 18 integration policy would always violate the Eighth Amendment, no matter which inmates or 19 which facilities the policy was applied to. Plaintiff’s allegations that the policy is unconstitutional 20 and results in assaults and serious injuries are conclusory and speculative. As Plaintiff has not 21 included allegations that the policy would be unconstitutional as applied in all situations, Plaintiff 22 has not pled a cognizable claim against Defendants that the policy is facially invalid under the 23 Eighth Amendment. 24 b. As Applied Challenge 25 “‘[A] [policy] . . . may be held constitutionally invalid as applied when it operates to 26 deprive an individual of a protected right although its general validity as a measure enacted in the 27 legitimate exercise of state power is beyond question.’” Little v. Streater, 452 U.S. 1, 16 (1981) 28 (quoting Boddie v. Connecticut, 401 U.S. 371, 379 (1971)). Thus, to support an “as applied” 1 challenge, Plaintiff must show that his individual circumstances make the general application of 2 the policy unconstitutional. See Doe v. United States, 419 F.3d 1056, 1063 (9th Cir. 2005). 3 Plaintiff has not alleged any facts to support a claim that CDC’s integration policy, as 4 applied to him, would violate his constitutional rights. There are no allegations in the complaint 5 that the two inmates who attacked Plaintiff, or Plaintiff himself, are subject to the policy, or that 6 implementation of the policy resulted in the inmates’ placement in the same section or facility as 7 Plaintiff. Plaintiff alleges that the policy causes him to live in constant fear of assault each and 8 every day, but there are no allegations that the implementation of the policy itself has led to, or 9 might lead to, an assault on Plaintiff. Therefore, Plaintiff has not sufficiently pled that he has 10 been incarcerated under conditions posing a substantial risk of serious harm because “speculative 11 and generalized fears of harm at the hands of other prisoners do not rise to a sufficiently 12 substantial risk of serious harm to his future health.” Williams v. Wood, 223 F. App’x 670, 671 13 (9th Cir. 2007). 14 4. Eighth Amendment 15 a. Failure to Protect 16 Prison officials have a duty under the Eighth Amendment to protect prisoners from 17 violence at the hands of other prisoners or others because being violently assaulted in prison is 18 simply not part of the penalty that criminal offenders pay for their offenses against society. 19 Farmer, 511 U.S. at 833; Clem v. Lomeli, 566 F.3d 1177, 1181 (9th Cir.2009); Hearns v. 20 Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005). However, prison officials are liable under the 21 Eighth Amendment only if they demonstrate deliberate indifference to conditions posing a 22 substantial risk of serious harm to an inmate; and it is well settled that deliberate indifference 23 occurs when an official acted or failed to act despite his knowledge of a substantial risk of serious 24 harm. Farmer, 511 U.S. at 834, 841; Clem, 566 F.3d at 1181; Hearns, 413 F.3d at 1040. 25 At the pleading stage, the Court finds that Plaintiff’s complaint states a cognizable claim 26 for failure to protect against Defendant Lima. Plaintiff alleges that there were bright pink signs 27 indicating “Orientation” on the doors of the two unclassified inmates, informing prison staff that 28 the inmates inside posed a danger of assault and exposure to COVID. Nevertheless, Defendant 1 Lima opened both of their doors and allowed them unpermitted access to the prison population 2 and Plaintiff, and Plaintiff was then assaulted by the two inmates. 3 b. Failure to Intervene 4 Prison officials have a duty to take reasonable steps to protect inmates from physical 5 abuse. Farmer, 511 U.S. at 832–33; Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005). 6 “[A] prison official can violate a prisoner’s Eighth Amendment rights by failing to intervene.” 7 Robins v. Meecham, 60 F.3d 1436, 1442 (9th Cir. 1995). 8 The Court also finds that, at the pleading stage, Plaintiff’s complaint states a cognizable 9 claim for failure to intervene against Defendant Lima. Plaintiff alleges that after Defendant Lima 10 opened the two cell doors, he turned his back as Plaintiff was attacked by the two inmates whose 11 doors had been opened. Defendant Lima continued to intentionally turn away while Plaintiff was 12 chased by the two inmates to another dayroom and attacked in the other dayroom, and while 13 another inmate was attacked, and Defendant Lima did not alert his panic button until other 14 inmates started banging on their doors. 15 5. Declaratory Relief 16 To the extent Plaintiff's complaint seeks a declaratory judgment, it is unnecessary. “A 17 declaratory judgment, like other forms of equitable relief, should be granted only as a matter of 18 judicial discretion, exercised in the public interest.” Eccles v. Peoples Bank of Lakewood Village, 19 333 U.S. 426, 431 (1948). “Declaratory relief should be denied when it will neither serve a useful 20 purpose in clarifying and settling the legal relations in issue nor terminate the proceedings and 21 afford relief from the uncertainty and controversy faced by the parties.” United States v. 22 Washington, 759 F.2d 1353, 1357 (9th Cir. 1985). If this action reaches trial and the jury returns 23 a verdict in favor of Plaintiff, then that verdict will be a finding that Plaintiff's constitutional 24 rights were violated. Accordingly, a declaration that any defendant violated Plaintiff’s rights is 25 unnecessary. 26 III. Conclusion and Recommendation 27 Based on the above, the Court finds that Plaintiff’s complaint states cognizable claims 28 against Defendant Lima for failure to protect in violation of the Eighth Amendment and failure to 1 intervene in violation of the Eighth Amendment. However, Plaintiff’s complaint fails to state any 2 other cognizable claims for relief against any other defendants. 3 Accordingly, it is HEREBY RECOMMENDED that: 4 1. This action proceed on Plaintiff’s complaint, filed February 7, 2022, (ECF No. 1), against 5 Defendant Lima for failure to protect and failure to intervene in violation of the Eighth 6 Amendment; and 7 2. All other claims and defendants be dismissed based on Plaintiff’s failure to state claims 8 upon which relief may be granted. 9 * * * 10 These Findings and Recommendations will be submitted to the United States District 11 Judge assigned to the case, as required by 28 U.S.C. § 636(b)(l). Within fourteen (14) days after 12 being served with these Findings and Recommendations, Plaintiff may file written objections 13 with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings 14 and Recommendations.” Plaintiff is advised that the failure to file objections within the specified 15 time may result in the waiver of the “right to challenge the magistrate’s factual findings” on 16 appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 17 F.2d 1391, 1394 (9th Cir. 1991)). 18

IT IS SO ORDERED.

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20 Dated: May 5, 2022 /s/ Barbara A. McAuliffe _

UNITED STATES MAGISTRATE JUDGE

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