Opinion
No. 2:14-cv-2711 JAM CKD P
03-31-2016
DAVID REYES, Plaintiff, v. A. YOUNG, et al., Defendants.
FINDINGS AND RECOMMENDATIONS
This pro se prisoner civil rights action proceeds on the Second Amended Complaint ("SAC") filed January 25, 2016. (ECF No. 27.) The SAC is before the court for screening. See 28 U.S.C. § 1915A(a). Having reviewed the pleading and attached documents, the undersigned concludes that the SAC does not cure the defects of the First Amended Complaint as discussed in the November 23, 2015 screening order. (See ECF No. 23.)
Plaintiff alleges that Mule Creek State Prison officials failed to protect him after a gang-affiliated inmate hit him in the eye with a rock in August 2012, requiring surgery. When plaintiff returned from the hospital, he was rehoused in the same yard as his assailant. Plaintiff alleges that, after his return, his assailant "was pressuring other inmates to take plaintiff off the yard" and "incited" plaintiff's cellmate to attack him. (ECF No. 27 at 15.) Plaintiff claims defendants were deliberately indifferent to his safety, as they "failed to segregate" plaintiff from his attacker and other gang members. (Id.)
In December 2012, plaintiff and his cellmate, Vasquez, were issued a Rules Violation Report for fighting: "Both inmates exchanged punches with closed hands (fists) at each other's facial area, but it did not appear that either inmate made contact. Inmate Reyes then pushed Vasquez onto the ground." (Id. at 25.) An attached medical report indicates that plaintiff sustained no injuries. (Id. at 30.) Plaintiff was convicted of fighting, a term explained in the disciplinary hearing report as: "[B]oth participants were committing battery on the other." (Id. at 26.) Plaintiff refused to sign a "Peaceful Coexistence Agreement Chrono" with Vasquez and was assessed ninety days' credit loss for the disciplinary conviction. (Id. at 28.). See Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) ("[A] state prisoner's [section] 1983 action is barred (absent prior invalidation) . . . if success in that action would necessarily demonstrate the invalidity of confinement or its duration."), citing Heck v. Humphrey, 512 U.S. 477 (1994).
On the facts alleged, plaintiff has not shown that any defendant was deliberately indifferent to his safety under the legal standard set forth in the November 23, 2015 screening order. He has alleged neither the subjective frame of mind required for deliberate indifference nor any harm stemming from defendants' alleged indifference. The SAC does not state a failure-to-protect claim against any defendant, nor any other cognizable claim. As it appears another round of amendment would be futile, the court will recommend dismissal of this action.
In accordance with the above, IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice.
These findings and recommendations will be submitted to the United States District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, plaintiff may file written objections with the court. Such a document should be captioned "Objections to Findings and ///// ///// ///// ///// ///// Recommendations." Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). Dated: March 31, 2016
/s/_________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE 2 / reye2711.sac