1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ROBERT EARL SAMUELS, Case No.: 3:20-cv-01051-CAB-MDD

CDCR #F-61946,

12

ORDER:

Plaintiff, 13 vs. 1) SCREENING COMPLAINT 14

PURSUANT TO 28 U.S.C. SECTION

M. LIZARRAGA, Correctional Officer,

15 1915A; Defendant. 16

AND

17 2) DIRECTING CLERK OF COURT 18

TO ISSUE A SUMMONS PURSUANT

19 TO Fed. R. Civ. P. 4(b) 20 21 22 23 Robert Earl Samuels (“Plaintiff”), an inmate at Richard J. Donovan State Prison 24 (“RJD”) in San Diego, California, filed this civil rights action pursuant to 42 U.S.C. 25 Section 1983. (See Compl., ECF No. 1.) Plaintiff alleges that members of a prison gang 26 assaulted him based on rumors started by a correctional officer, Defendant M. Lizarraga. 27 (See id. at 8-9.) Plaintiff contends that Defendant’s conduct violated his Eighth 28 Amendment right to be free from cruel and unusual punishment. (See id. at 3.) 1 Plaintiff prepaid the $400 filing fee required by 28 U.S.C. Section 1914(a). (See 2 ECF No. 1-2, at 1, Receipt No. 121932.) Therefore, and unlike most pro se litigants, 3 Plaintiff has not filed a motion to proceed in forma pauperis (“IFP”) pursuant to 28 4 U.S.C. Section 1915(a). Plaintiff has not yet requested the Clerk issue a summons 5 pursuant to Federal Rule of Civil Procedure 4(b) and has not yet served his Complaint on 6 Defendant. See Fed. R. Civ. P. 4(b) (“On or after filing the complaint, the plaintiff may 7 present a summons to the clerk for signature and seal.”); Boudette v. Barnette, 923 F.2d 8 754, 757 (9th Cir. 1991) (absent a request and court order that the U.S. Marshals’ Service 9 effect service on someone’s behalf pursuant to Federal Rule of Civil Procedure 4(c)(3), 10 individuals who prepay civil filing fees “remain[] responsible for timely service”). 11 I. Screening pursuant to 28 U.S.C. Section 1915A 12 A. Standard of Review 13 The Court must conduct an initial review of the Complaint pursuant to 28 U.S.C. 14 Section 1915A because Plaintiff is a prisoner and seeks “redress from a governmental 15 entity or officer or employee of a governmental entity.” See 28 U.S.C. § 1915A(a). 16 Section 1915A “mandates early review—‘before docketing [] or [] as soon as 17 practicable after docketing’—for all complaints ‘in which a prisoner seeks redress from a 18 governmental entity or officer or employee of a governmental entity.’” Chavez v. 19 Robinson, 817 F.3d 1162, 1168 (9th Cir. 2016). The mandatory screening provisions of 20 Section 1915A apply to all prisoners, no matter their fee status, who bring suit against a 21 governmental entity, officer, or employee. See, e.g., Resnick v. Hayes, 213 F.3d 443, 22 446-47 (9th Cir. 2000). “On review, the court shall . . . dismiss the complaint, or any 23 portion of the complaint,” if it “(1) is frivolous, malicious, or fails to state a claim upon 24 which relief may be granted; or (2) seeks monetary relief from a defendant who is 25 immune from such relief.” Olivas v. Nevada ex rel. Dep’t of Corrs., 856 F.3d 1281, 1283 26 (9th Cir. 2017) (quoting 28 U.S.C. § 1915A(b)). 27 B. Factual Allegations 28 Plaintiff alleges that on June 30, 2018, Defendant told him that an unnamed inmate 1 was being assigned to be housed in Plaintiff’s cell. (See Compl. at 8.) A third inmate, 2 Robinson, was present for the conversation, and “[a]fter the defendant finished speaking 3 [Robinson] informed plaintiff in defendant’s presence that the unnamed inmate was a 4 CRIP that multiple other crips had refused to be housed with.” (Id. (emphasis in 5 original).) “CRIPs are a street gang and prison gang with a history of violence and rape 6 in prison.” (Id. at 9 (emphasis in original).) Robinson explained “that the reason no one 7 would be housed with the other inmate was he was ‘not compatible with anyone and 8 would be a problem.’” (See id. at 8.) A declaration from Robinson is attached to 9 Plaintiff’s Complaint and further explains that Plaintiff “asked [Defendant] was the 10 person gang affiliated? [Defendant] told [Plaintiff] yes. [Plaintiff] asked could he be 11 moved with a nonaffiliated inmate in another building. [Defendant] refused and told 12 [Plaintiff] he was getting the cell mate [Defendant] had chosen for him.” (See id. at 11; 13 see also id. at 8 (“Plaintiff then expressed his safety concerns with defendant Lizarraga 14 about being housed with an inmate with such a reputation amongst his peers and asked to 15 be housed with a different inmate. The defendant refused.”).) 16 After their conversation ended, Defendant “call[ed] another CRIP inmate,” Isaac 17 Scott, “who had nothing to do with the situation . . . and [Defendant] informed him of 18 what happened with the plaintiff.” (Id. at 8.) Defendant said that Scott should “‘holler 19 at’” Plaintiff, and explained that “knew plaintiff was a crip while other inmates were 20 close enough to hear what had been said.” (See id.) According to a declaration from 21 Scott, attached to the Complaint, “[t]he word ‘holler’ has many meanings and is used 22 loosely in prison. It can mean anything from formally speaking to a person or battering 23 him. [Defendant] didn’t specify what he meant or his intentions.” (See id. at 16.) In 24 response, “Scott informed [Defendant] that he was not aware plaintiff was a crip,” and 25 later told Plaintiff about the conversation. (See id. at 8.) 26 “For months following this day [P]laintiff was harassed by inmates about being a 27 gang member based on a continuous rumor that [D]efendant started and kept alive.” (See 28 id.) In November 2018, Plaintiff was assaulted by “multiple CRIP inmates . . . ,” and 1 suffered “a broken hand, multiple cuts,[]multiple bruises, two black eyes and a bloody 2 nose.” (See id. at 8-9.) Plaintiff attached to his Complaint a declaration from one of the 3 inmates involved in the assault, Tevan Love, who stated that on November 27, 2018 he 4 “walked up on a group talking about an inmate who was a drop out” gang member. (See 5 id. at 18.) Love had “heard this rumor a few times from different people . . . but never 6 knew who the inmate was.” (See id.) “[A]llegedly some one [sic] had been sharing this 7 information directly from a[] [correctional] officer in 5 block.” (See id.) “[W]hen 8 Samuels #F61946 walked by he was identified right then as the drop out, and [Love] 9 jumped him.” (See id.) After the assault, “[P]laintiff was placed in the hole,[]while the 10 inmates who assaulted him were left in general population.” (Id. at 8.) 11 Plaintiff contends that Defendant’s actions violated Plaintiff’s Eighth Amendment 12 right to be free from cruel and unusual punishment. (See id. at 3.) Plaintiff seeks 13 $100,000 in damages, and $100,000 in punitive damages. (See id. at 7.) 14 C. Analysis 15 The Court finds that Plaintiff’s Eighth Amendment claim is “sufficient to meet the 16 low threshold for proceeding past the screening stage,” and is not subject to sua sponte 17 dismissal pursuant to 28 U.S.C. Section 1915A(b)(1) or (2). “The Eighth Amendment 18 requires prison officials to take reasonable measure to guarantee the safety of inmates, 19 which has been interpreted to include a duty to protect prisoners.” Labatad v. Corrs. 20 Corp. of Am., 714 F.3d 1155, 1160 (9th Cir. 2013) (citing Farmer v. Brennan, 511 U.S. 21 825, 832-33 (1994); Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005)). To allege 22 an Eighth Amendment violation, a prisoner must show that a prison official acted with 23 deliberate indifference. See id. (citing Farmer, 511 U.S. at 837). “‘Deliberate 24 indifference’ has both subjective and objective components. A prison official must ‘be 25 aware of facts from which the inference could be drawn that a substantial risk of serious 26 harm exists, and . . . must also draw the inference.’” See id. (quoting Farmer, 511 U.S. 27 at 837) (internal citations omitted)). 28 Other courts have found that “prison officials may create a serious risk of 1 irreparable harm, and thus violate the Eighth Amendment, by giving other inmates reason 2 to believe,” for example “that a particular inmate is a jailhouse ‘snitch.’” See Glenn v. 3 Cole, No. CIV S-06-0151 FCD KJM P, 2010 WL 2303028, at *2 (E.D. Cal. June 7, 4 2010) (citation omitted); see also Valandingham v. Bojorquez, 866 F.2d 1135, 1138 (9th 5 Cir. 1989) (allegations that prison officials “labeled [plaintiff] a ‘snitch’ with the intent of 6 having [him] killed by inmates” may state an Eighth Amendment claim). Although the 7 Court is not aware of any cases involving allegations that a correctional officer started 8 rumors that the plaintiff was a dropout gang member, the risks inherent in starting such a 9 rumor and repeating it to known gang members are similar to those posed by labeling an 10 inmate as an informant. See Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986) 11 (deliberate indifference standard “does not require that the guard or official ‘believe to a 12 moral certainty that one inmate intends to attack another at a given place at a time certain 13 before that officer is obligated to take steps to prevent such an assault.’” (quoting State 14 Bank of St. Charles v. Camic, 712 F.2d 1140, 1146 (7th Cir. 1983))). This is particularly 15 true given the allegations that Plaintiff was, in fact, assaulted as a result of these rumors. 16 (See Compl. at 8, 18.) 17 As a result, the Court concludes that Plaintiff has stated an Eighth Amendment 18 claim against Defendant sufficient to survive screening pursuant to 28 U.S.C. Section 19 1915A. Nevertheless, the Court cautions Plaintiff that the sua sponte screening process is 20 “cumulative of, not a substitute for, any subsequent [motion to dismiss] that the 21 defendant may choose to bring.” See Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1119 22 (S.D. Cal. 2007). 23 II. Conclusion and Order 24 For the reasons explained, the Court finds that Plaintiff’s Complaint states an 25 Eighth Amendment claim sufficient to survive sua sponte screening pursuant to 28 26 U.S.C. Section 1915A. 27 The Court DIRECTS the Clerk of the Court to issue a summons upon Defendant 28 pursuant to Federal Rule of Civil Procedure 4(b) so that he may serve the Complaint 1 |/upon him as required by Federal Rule of Civil Procedure 4(c). Plaintiff must effect 2 || personal service upon Defendant within 90 days of this Order and file proof of that 3 || service pursuant to Federal Rule of Civil Procedure 4(1) or file a waiver of service 4 || pursuant to Federal Rule of Civil Procedure 4(d). If Plaintiff fails to file proof of service 5 a waiver of service within that time, the Court may dismiss Plaintiff's Complaint for 6 || failure to prosecute pursuant to Federal Rule of Civil Procedure 4(m).! 7 IT IS SO ORDERED. 8 ||Dated: August 6, 2020 € 9 Hon. Cathy Ann Bencivengo 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 ||' Because Plaintiff is not proceeding in forma pauperis, he is “responsible for having the 54 summons and complaint served” now that his Complaint has survived the sua sponte screening required by 28 U.S.C. Section 1915A. See Fed. R. Civ. P. 4(c)(1). The Court 25 || notes that the 90 day period for service specified by Federal Rule of Civil Procedure 4(m) 5 was tolled during that screening process, and thus runs from the date of this Order. Cf. 6 Butler v. Nat’! Cmty. Renaissance of Cal., 766 F.3d 1191, 1204 n.8 (9th Cir. 2014) 27 (noting that “[o]ther federal circuit courts of appeals have held that the [90]-day service 28 period is tolled until the court screens a plaintiff's in forma pauperis complaint and authorizes services of process.” (citations omitted)).