-BLM Smedley v. Reid et al, No. 3:2008cv01602 - Document 16 (S.D. Cal. 2009)

Court Description: REPORT AND RECOMMENDATIONS for Order Granting Defendants' 11 Motion to Dismiss. Objections to R&R due by 10/20/2009; Replies due by 11/10/2009. Signed by Magistrate Judge Barbara Lynn Major on 9/29/09. (All non-registered users served via U.S. Mail Service).(vet) (jrl).

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-BLM Smedley v. Reid et al Doc. 16 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CHARLES SMEDLEY, III, 12 Plaintiff, v. 13 G. REID, et al., 14 Defendants. 15 ) ) ) ) ) ) ) ) ) Case No. 08cv1602-BTM (BLM) REPORT AND RECOMMENDATION FOR ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS [Doc. No. 11] 16 This Report and Recommendation is submitted to United States 17 District Judge Barry Ted Moskowitz pursuant to 28 U.S.C. § 636(b) and 18 Civil Local Rules 72.1(c) and 72.3(f) of the United States District 19 Court for the Southern District of California. 20 Plaintiff Charles Smedley, III, proceeding pro se and in forma pauperis, 21 filed this civil rights suit under 42 U.S.C. § 1983. 22 (“Compl.”). 23 Plaintiff’s Complaint. 24 opposition to Defendants’ motion. 25 25, 2009, and took the matter under submission. 26 Complaint and Defendants’ Motion to Dismiss, and for the reasons stated 27 below, this Court RECOMMENDS that Defendants’ Motion to Dismiss be 28 GRANTED as follows. On August 29, 2008, Doc. No. 1 On April 7, 2009, Defendants filed a motion to dismiss Doc. No. 11. Plaintiff did not file an The Court set a hearing date of May After considering the 08cv1602-BTM (BLM) Dockets.Justia.com 1 BACKGROUND 2 Plaintiff’s claims arise from actions allegedly committed by 3 Correctional Officer G. Reid and Medical Technical Assistant Williams1 4 while Plaintiff was an inmate at R.J. Donovan State Prison. 5 According to the Complaint, Plaintiff and Defendant Reid were conversing 6 on December 22, 2006 when, without warning, Defendant Reid closed a cell 7 door on Plaintiff’s head, causing Plaintiff significant pain. 8 Despite Plaintiff’s protestations and those of another correctional 9 officer, Defendant Reid refused to open the door, and Plaintiff’s head 10 remained stuck until another inmate freed him. Compl. Id. Id. 11 Later that evening, Plaintiff was taken to the prison medical 12 center, where Medical Technical Assistant Williams examined Plaintiff’s 13 head. 14 closed a door on his head, Defendant Williams allegedly stated he did 15 not believe Plaintiff. 16 swelling around Plaintiff’s head and jaw, Defendant Williams did not 17 note this, and instead filed a “false” medical report that merely 18 described Plaintiff as being in pain. 19 Id. at 4. Plaintiff When Plaintiff explained that a correctional officer alleges Further, although Defendant Williams felt the above Id. actions rise to the level of 20 constitutional violations. 21 conduct constitutes a denial of “adequate medical care” and “freedom 22 from cruel and unusual punishment,” in violation of the Eighth and 23 Fourteenth Amendments of the U.S. Constitution.2 Specifically, Plaintiff argues Defendants’ Id. at 3-4. 24 25 1 26 2 27 28 Plaintiff does not supply Defendants’ first names. Plaintiff fails to specify which Defendant committed which violations. Compl. at 3-4. Because Defendant Reid allegedly committed the door-closing act, but was not involved in providing medical care, and because Defendant Williams provided allegedly deficient medical care, but was not implicated in the door closing, the Court interprets Plaintiff’s Complaint as ascribing “cruel and unusual punishment” to 2 08cv1602-BTM (BLM) 1 After the events described above, Plaintiff was transferred to 2 Pleasant Valley State Prison in February 2007 and housed there until he 3 was paroled on April 27, 2007. 4 Declaration 5 incarcerated at R.J. Donovan, and filed the instant Complaint. 6 at 1 (cover page showing Complaint filed from R.J. Donovan). 7 apparently was released again in November 2008. 8 9 of Plaintiff C. Huckaby seeks $200,000 Id. at 7. wrongdoing. at Declaration of E. Franklin at 3; 3. Plaintiff in damages subsequently was re- Compl. Plaintiff Doc. No. 6. for Defendants’ alleged He does not seek injunctive relief. Id. 10 Plaintiff does not specify whether he is suing Defendants in their 11 individual or official capacities, nor does he specify in what manner 12 Defendants may have acted under the color of law. 13 Id. at 2. DISCUSSION 14 Defendants argue that Plaintiff’s claims should be dismissed for 15 the 16 administrative remedies, (2) Plaintiff fails to state a claim under 17 Federal 18 Fourteenth Amendment claim is improper, as the allegations must be 19 presented under the Eighth Amendment, (4) insofar as Plaintiff sues 20 Defendants 21 immunizes them from liability, and (5) insofar as Plaintiff sues 22 Defendants 23 qualified immunity. 24 /// 25 /// following Rule in in reasons: of Civil their their (1) Plaintiff Procedure official individual (Rule) failed to 12(b)(6), capacities, capacities, the they exhaust (3) Plaintiff’s Eleventh are his Amendment protected by Doc. No. 11-1 (“Def. Mem.”). 26 27 28 Defendant Reid, and denial of “adequate medical care” to Defendant Williams. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002) (requiring court to liberally construe pro se plaintiff’s complaint). 3 08cv1602-BTM (BLM) 1 A. 2 Failure to Exhaust Administrative Remedies. Defendants contend that Plaintiff failed to exhaust his 3 administrative remedies before filing the instant action, and that 4 Plaintiff’s Complaint therefore must be dismissed. 5 Although provided an opportunity to do so, Plaintiff did not file a 6 reply to Defendant’s Motion to Dismiss, and therefore did not directly 7 address this argument. Doc. No. 12 (order noting that Plaintiff had not 8 yet responded to Defendant’s motion to dismiss, as provided for by CivLR 9 7.1(d)(1)).3 Def. Mem. at 4-7. However, in the Complaint, Plaintiff states that he 10 “complied with mandates of PLRA with respect of attempting to exhaust 11 available 12 transferred to ‘Pleasant Valley’ state prison. 13 track appeals and also wrote to director of corrections in making a good 14 faith effort to comply to no avail.” admistrated [sic] remedies. However, Plaintiff was Plaintiff sought to Compl. at 6. 15 The Prison Litigation Reform Act (“PLRA”) provides that “[n]o 16 action shall be brought with respect to prison conditions under section 17 1983 of this title, or any other Federal law, by a prisoner confined in 18 any 19 administrative remedies as are available are exhausted.” 20 § 1997e(a). 21 suit. 22 prisoner seeks relief not available in grievance proceedings, notably 23 money damages, exhaustion is a prerequisite to suit”); Booth v. Churner, 24 532 U.S. 731, 739 (2001). jail, prison, or other correctional facility until such 42 U.S.C. The exhaustion requirement is a mandatory prerequisite to See Porter v. Nussle, 534 U.S. 516, 524 (2002) (“[e]ven when the The PLRA requires “proper exhaustion,” i.e., 25 26 3 27 28 Plaintiff failed to file an opposition to Defendants’ motion to dismiss. It therefore is within the Court’s discretion to grant Defendants’ motion as unopposed under Local Rule 7.1(f)(3)(c) of the Southern District of California. Nonetheless, the Court reviews motion on its merits. 4 08cv1602-BTM (BLM) 1 compliance with the state’s “critical procedural rules” governing its 2 administrative grievance or appeals procedure. See Woodford v. Ngo, 548 3 U.S. 81, 93-95 (2006). 4 process must be completed before a civil rights action is filed, and 5 exhaustion during the pendency of the litigation will not save a claim 6 or an action from dismissal. 7 (9th Cir. 2002). 8 9 All available steps in the administrative See McKinney v. Carey, 311 F.3d 1198, 1200 The PLRA does not impose a pleading requirement. Rather, failure to exhaust is an affirmative defense that defendants have the burden of 10 raising and proving. 11 Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). 12 exhaust administrative remedies “is subject to an unenumerated Rule 13 12(b) motion rather than a motion for summary judgment.” 14 F.3d at 1119 (citing Ritza v. Int’l Longshoremen’s & Warehousemen’s 15 Union, 837 F.2d 365, 368 (9th Cir. 1988)). 16 dismiss for failure to exhaust administrative remedies, the court may 17 look beyond the pleadings and decide disputed issues of fact, but it 18 must assure that the plaintiff has fair notice of his opportunity to 19 develop the record. 20 concludes 21 administrative 22 prejudice. 23 The that the See Jones v. Bock, 549 U.S. 199, 215-18 (2007); remedies, the has failed proper Wyatt, 315 When deciding a motion to Wyatt, 315 F.3d at 1119-20 n.14. prisoner The failure to to remedy exhaust is If the court all available dismissal without Id. California Department of Corrections and Rehabilitation 24 (“CDCR”) utilizes a four-step grievance process for prisoners seeking 25 review of an administrative decision or perceived mistreatment. 26 v. Summerhill, 449 F.3d 1047, 1048-49 (9th Cir. 2006); Cal. Code Regs. 27 tit. 15, §§ 3084.1-3084.6. 28 requires the inmate to informally attempt to resolve his grievance with Vaden In most cases, the first step in the process 5 08cv1602-BTM (BLM) 1 the prison staff member. 2 § 3084.5(a)(3)(G) (waiving informal resolution requirement for cases 3 involving “[a]lleged misconduct by a departmental peace officer”). If 4 unsuccessful, the inmate can complete an inmate appeal “602" form. Id. 5 § 3084.5(b). If denied at that level, the inmate can appeal to the 6 second of 7 designee. 8 Director’s level, is conducted by the CDCR’s Director or her designee. 9 Id. § 3084.5(d). 10 level 1. 11 review Cal. Code Regs. tit. 15, § 3084.5(a); id. at conducted Id. § 3084.5(c). by the institution head or his The third and final level of review, the Whether Plaintiff Was Required to Exhaust his Administrative Remedies. 12 As an initial matter, the Court must decide whether, under the 13 unusual circumstances of this case, the exhaustion requirement applies. 14 Although the exhaustion requirement pertains to plaintiffs who file 15 their complaints while in custody, plaintiffs who file complaints after 16 being released are not required to exhaust administrative remedies, even 17 when the suit concerns events that occurred while the plaintiff was 18 incarcerated. 19 2009). Here, the events underlying Plaintiff’s complaint occurred while 20 he was in custody, and he partly exhausted his administrative remedies 21 at that time. 22 (describing Plaintiff’s partial progress through the administrative 23 appeals 24 incomplete exhaustion of remedies). Plaintiff was released from custody 25 in April 2007. 26 reflect when Plaintiff returned to prison, but it is clear that in 27 August 2008, he was back in custody because he listed an R.J. Donovan 28 address when he filed his Complaint. Talamantes v. Leyva, 575 F.3d 1021, 1023-24 (9th Cir. Declaration of N. Grannis at 3; Decl. Franklin at 3 process); see also infra at 8-11 (discussing Decl. Franklin at 3; Compl. at 1. 6 Compl. at 1. Plaintiff’s The record does not In November 2008, 08cv1602-BTM (BLM) 1 Plaintiff again was released from custody. 2 evidence to the contrary, and in light of Plaintiff’s duty to notify the 3 Court of address changes, the Court assumes that Plaintiff has not 4 returned to custody. 5 failed to exhaust his administrative remedies while in prison, or to 6 file a complaint upon his release, still is subject to the exhaustion 7 requirement 8 subsequently is re-released. 9 issue. when he Doc. No. 6. Absent any The question therefore is whether a plaintiff who files a complaint upon re-incarceration, and Neither party raises or discusses this 10 The PLRA states that “[n]o action shall be brought with respect to 11 prison conditions under [42 U.S.C. § 1983], or any other Federal law, by 12 a prisoner confined in any jail, prison, or other correctional facility 13 until such administrative remedies as are available are exhausted.” 14 U.S.C. § 1997e(a) (emphasis added). 15 the PLRA, the Ninth Circuit recently emphasized a court’s duty to adhere 16 to the plain language of the statute: “It is well settled that, in a 17 statutory construction case, analysis must begin with the language of 18 the statute itself; when the statute is clear, ‘judicial inquiry into 19 [its] meaning, in all but the most extraordinary circumstance, is 20 finished.’” 21 Carter, 421 F.3d 909, 911 (9th Cir. 2005)). 22 was released, he was a prisoner at the time he filed the Complaint, and, 23 under the plain language of the statute, therefore was required to have 24 exhausted all available administrative remedies.4 42 U.S.C. § 1997e(a); 42 When construing this provision of Talamantes, 575 F.3d at 1023 (quoting United States v. Although Plaintiff later 25 26 27 28 4 Plaintiff does not allege that his release from prison prevented him from exhausting his administrative remedies, and the Court therefore need not address this question. In fact, after his April 27, 2007 parole (Decl. Franklin at 3), Plaintiff continued with the administrative appellate process, albeit improperly. Decl. Grannis at 3 (stating that the final-level appellate division rejected a July 25, 2007 appeal 7 08cv1602-BTM (BLM) 1 Page v. Torrey, 201 F.3d 1136, 1139-40 (9th Cir. 2000) (construing PLRA 2 literally and holding that all prisoners are subject to the exhaustion 3 requirement). 4 Plaintiff’s situation does not alter the Court’s interpretation of the 5 statute. 6 which it may seem wise to have specifically provided for, justifies any 7 judicial addition to the language of the statute”)(citing Jones v. Bock, 8 549 U.S. 199, 216-217 (2007)). 9 comports with the purposes of the PLRA: to “afford corrections officials 10 time and opportunity to address complaints internally before allowing 11 the initiation of a federal case,” and to “reduce the quantity and 12 improve the quality of prisoner suits.” 13 (citations omitted); see also Jones, 549 U.S. at 223 (purpose of PLRA is 14 to “reduce the quantity of inmate suits”). The fact that the PLRA does not specifically address Talamantes, 575 F.3d at 1024 (“no mere statutory omission ... This reading of the statute also Woodford, 548 U.S. 81, 93-94 15 The Court therefore finds that the PLRA required Plaintiff to 16 exhaust his administrative remedies prior to filing suit. So, the Court 17 now turns to the issue of whether Plaintiff properly exhausted his 18 administrative remedies. 19 2. 20 In order to have properly exhausted his claims, Plaintiff was 21 required to exhaust all available administrative remedies, either by 22 presenting his claims to all three levels of formal administrative 23 review, or by receiving a response at an earlier level of review that 24 rendered further presentation futile. 25 936 26 regarding each Defendant’s alleged behavior, but failed to exhaust (9th Plaintiff Failed to Exhaust his Administrative Remedies. Cir. 2005). Plaintiff Brown v. Valoff, 422 F.3d 926, filed two relevant appeals, one 27 28 from Plaintiff, for failure to first file at the intermediate step). 8 08cv1602-BTM (BLM) 1 either. 2 administrative appeals and responses). Decl. Franklin at 3-4; id. Exs. A-C (copies of Plaintiff’s 3 Plaintiff’s first-level appeal against Defendant Reid requested “a 4 verbal apology for the pain he caused me, and whatever disciplinary 5 action that can be placed on him.” 6 appeal was “partially granted,” in that an inquiry was conducted into 7 Plaintiff’s allegations. 8 review, Plaintiff appealed the partial grant directly to the third 9 level, where his appeal Decl. Franklin Ex. A at 1. Id. at 3. was This Bypassing the second level of denied for failing to complete the 10 intermediate step. Decl. Grannis at 3 (describing third-level rejection 11 of Plaintiff’s complaint, log number RJD-07-00016); Decl. Franklin Ex. 12 A at 3 (showing this log number describes complaint against Defendant 13 Reid). 14 In some circumstances, a partial grant of a prisoner’s first-level 15 administrative appeal may without further presentation exhaust the 16 prisoner’s administrative remedies. 17 judging whether a partial grant constitutes exhaustion, a court looks 18 at, inter alia, the remedies requested by the prisoner. 19 (administrative process need only consider remedies requested). 20 partial grant fully addresses the requested remedies, and forecloses any 21 further possibility of relief, then further administrative appeals would 22 be futile, and the claims are exhausted. 23 other 24 requires the prisoner to pursue his claims through the administrative 25 appeals process. 26 the fit between [his] prayer for relief and the administrative remedies 27 possible.” 28 (2001)); Porter, 534 U.S. at 524 . hand, remedies Id. remain Brown, 422 F.2d at 937-39. available Id. at 939-40 Id. at 936-40. or When unaddressed, If the If, on the exhaustion A prisoner is required to exhaust “regardless of Id. at 935 (citing Booth v. Churner, 532 U.S. 731, 739 9 08cv1602-BTM (BLM) 1 In his administrative appeal, Plaintiff requested an inquiry into 2 Defendant Reid’s conduct and an apology (Decl. Franklin Ex. A at 1), but 3 only received a statement from the prison that an inquiry had been 4 conducted into Plaintiff’s allegations (id. at 3). 5 relief, the apology, thus remained that may have been made available had 6 Plaintiff exhausted the appeals process.5 Brown, 422 F.2d at 939-40; id. 7 at 945 (Reinhardt, J., concurring in part and dissenting in part) 8 (citing apology as example of possible remedy for prisoner complaint). 9 “The obligation to exhaust ‘available’ remedies persists as long as some 10 remedy remains ‘available.’” Id. at 935 (emphasis in original). Because 11 Plaintiff failed to present his claim against Defendant Reid at all 12 three levels of review, or to receive a decision that rendered further 13 presentation futile, this claim therefore is unexhausted. See Tsehai v. 14 Schwartz, 2006 WL 3050819, at *3 (E.D. Cal. Oct. 25, 2006) (because 15 plaintiff requested apology from correctional officer who allegedly used 16 excessive force, and failed to receive apology or appeal request at all 17 levels, excessive force claim was not exhausted); Johnson v. Gregoire, 18 2008 19 administrative grievance form requested that prison employee have “more 20 positive attitude toward prisoners,” but plaintiff offered no proof that 21 this 22 administrative appeal; plaintiff’s administrative remedies therefore WL 5156428, occurred, and at *10 failed (W.D. to Wash. pursue Dec. request 9, at Some requested 2008)(prisoner’s all levels of 23 24 25 26 27 28 5 Plaintiff also requested that Defendant Reid be disciplined by the prison. Decl. Franklin Ex. A at 1. The warden’s statement that an inquiry had been conducted into Plaintiff’s complaint, and that confidentiality prevented the prison from informing Plaintiff of the results of the inquiry exhausted this aspect of Plaintiff’s request. Brown, 422 F.2d at 937-40 (under similar circumstances, request for discipline exhausted at second-level appeal because plaintiff would never know the results of investigation, and thus would not know whether to appeal). However, because the issue of the apology remained un-addressed, Plaintiff’s claim against Defendant Reid is not exhausted. Brown, 422 F.2d at 936-40. 10 08cv1602-BTM (BLM) 1 were not exhausted). 2 Plaintiff’s claim against Defendant Williams also is unexhausted. 3 In his first-level appeal, Plaintiff requested that Defendant Williams 4 “write the facts as they happened and not be rude to me. 5 background checked and if possible his resignition [sic].” 6 Franklin Ex. B at 1. 7 request partially was granted6, but that “[i]f you feel you were wronged 8 by custody you will need to complete a citizens [sic] complaint on the 9 officer for the alleged assault you are reporting. I want his Decl. In response, CDCR informed Plaintiff that his Please complete a 10 CDC 7363 [form] so you can discuss your medical issues with a provider. 11 The 602 [form Plaintiff filed] is not the format for reporting or 12 requesting background checks or resignation.” 13 Ex. C. 14 form, and Plaintiff did not appeal the first-level decision. 15 Franklin at 4; id. Ex. B at 3 & Ex. C. 16 exhaust his administrative remedies with regards to his claim against 17 Defendant Williams. Id. at 3; Decl. Franklin There is no evidence that Plaintiff filed the required CDC 7363 Decl. Plaintiff therefore failed to Woodford, 548 U.S. at 93-95. 18 Further, Plaintiff essentially concedes that he failed to properly 19 exhaust his claims, stating that he “sought to track appeals ... in [] 20 a good faith effort to comply, to no avail.” 21 as this statement is an argument that it was futile for him to proceed 22 further with the administrative appeals process, that argument fails: 23 courts “will not read futility or other exceptions into statutory 24 exhaustion requirements where Congress has provided otherwise.” Compl. at 6. And, insofar Booth 25 26 6 27 28 Although the record does not specify in what way Plaintiff’s request was “partially granted,” it may have been a CDCR employee’s follow-up contact with Plaintiff and communication with a lawyer. Decl. Franklin Ex. B at 3 (notes on form responding to first-level appeal). 11 08cv1602-BTM (BLM) 1 v. Churner, 532 U.S. 731, 741 n.6 (2001). Therefore, the Court 2 RECOMMENDS be 3 PREJUDICE for failure to exhaust. 4 district court concludes that the prisoner has not exhausted nonjudicial 5 remedies, 6 prejudice”). 7 B. 8 that the both proper of Plaintiff’s remedy claims DISMISSED WITHOUT Wyatt, 315 F.3d at 1120 (“If the is dismissal of the claim without Failure to State a Claim Under Rule 12(b)(6) of the Federal Rules of Civil Procedure. 9 Pursuant to Federal Rule of Civil Procedure 12(b)(6), Defendants 10 seek dismissal of Plaintiff’s complaint on the grounds that Plaintiff 11 fails to state a claim upon which relief can be granted. 12 7-10. 13 plaintiff’s claims. 14 of any Rule 12(b)(6) dismissal . . . is the complaint.” 15 California Dep’t of Corrs., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998). 16 When reviewing a Rule 12(b)(6) motion, the court may consider the facts 17 alleged in the complaint and documents properly attached to it. See Hal 18 Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 19 (9th Cir. 1989). 20 complaint 21 questions, but which are not physically attached to the [plaintiff’s] 22 pleading.” 23 City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). 24 court “may not look beyond the complaint to a plaintiff’s moving papers, 25 such as a memorandum in opposition to a defendant’s motion to dismiss.” 26 Schneider, 151 F.3d at 1197 n.1 (emphasis in original). Def. Mem. at A Rule 12(b)(6) motion tests the legal sufficiency of a Fed. R. Civ. P. 12(b)(6). Accordingly, the “focus Schneider v. The court also may consider documents the plaintiff’s necessarily relies on and “whose authenticity no party Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005); Lee v. However, the 27 For purposes of a Rule 12(b)(6) motion, the court must accept as 28 true all material factual allegations in the complaint, as well as 12 08cv1602-BTM (BLM) 1 reasonable inferences to be drawn from them, and must construe the 2 complaint in the light most favorable to the plaintiff. 3 Ready Mix, Inc. v. Civish, 382 F.3d 969, 973 (9th Cir. 2004). 4 plaintiff appears pro se, the court must be careful to construe the 5 pleadings liberally and to afford the plaintiff any benefit of the 6 doubt. 7 of liberal construction is “particularly important” in civil rights 8 cases. 9 However, the court is not permitted to “supply essential elements of the Erickson, 551 U.S. at 94; Thompson, 295 F.3d at 895. See Cholla When a This rule Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). 10 claim that were not initially pled.” 11 Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 12 conclusory 13 violations are not sufficient to withstand a motion to dismiss.” allegations of official Ivey v. Bd. of Regents of the participation in “Vague and civil rights Id. 14 In 2007, the United States Supreme Court departed from the more- 15 liberal pleading rule established in 1957 and held that a claim may be 16 dismissed pursuant to Rule 12(b)(6) if the plaintiff fails to articulate 17 “enough facts to state a claim to relief that is plausible on its face.” 18 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (emphasis 19 added) (abrogating pleading standard established by Conley v. Gibson, 20 355 U.S. 41, 78 (1957)). 21 plead a set of facts “plausibly suggesting (not merely consistent with)” 22 the defendant’s alleged violations. 23 U.S. Secret Service, 572 F.3d 962, 968 (9th Cir. 2009) (citing Twombly). 24 However, 25 pleadings are not necessarily deficient merely because “recovery is very 26 remote and unlikely.” 27 see also Erickson v. Pardus, 551 U.S. 89, 93 (2007) (“[s]pecific facts 28 are not necessary” to satisfy pleading requirements of FRCP Rule in announcing This new standard requires a plaintiff to this rule, Twombley, 550 U.S. at 557; Moss v. the Court also indicated that Twombley, 550 U.S. at 556; Moss, 572 F.3d at 968; 13 08cv1602-BTM (BLM) 1 8(a)(2)). 2 Recently, the Supreme Court clarified the parameters of the new 3 plausibility standard in evaluating the factual sufficiency of a civil 4 rights complaint. 5 (2009). 6 September 7 “principal architect” of a policy that subjected plaintiff and other 8 Arab Muslims to “harsh conditions of confinement on account of his race, 9 religion, or national origin” in violation of the U.S. Constitution, and 10 that the Director of the FBI was “‘instrumental’ in adopting and 11 executing” the policy. 12 the complaint failed “to plead sufficient facts to state a claim for 13 purposeful and unlawful discrimination against [the Attorney General and 14 Director of the FBI].” 15 the Court initially held that “bare assertions” which “amount to nothing 16 more than a ‘formulaic recitation of the elements’ of a constitutional 17 discrimination claim” are to be disregarded. 18 that ‘[i]t is the conclusory nature of the ... allegations, rather than 19 their extravagantly fanciful nature, that disentitles them to the 20 presumption of truth.” 21 Ashcroft v. Iqbal, --- U.S. ---, 129 S.Ct. 1937 In Iqbal, the plaintiff alleged that in the aftermath of 11, 2001, the United States Id. at 1951. Id. at 1954. Attorney General was the The Supreme Court determined that In reaching this determination, Id. The Court explained Id. After disregarding the conclusory allegations, the Court examined 22 the remaining facts. 23 Plaintiff’s factual allegations and found that they could establish a 24 discriminatory intent on behalf of the two defendants. 25 However, the Court continued that the asserted facts also could support 26 a non-discriminatory scenario in which a legitimate policy had a 27 “disparate, incidental impact on Arab Muslims.” 28 compared the two possibilities and concluded that “[a]s between that Id. at 1951-52. 14 The Court accepted as true Id. Id. at 1951. The Court then 08cv1602-BTM (BLM) 1 ‘obvious 2 purposeful, invidious discrimination respondent asks [the Court] to 3 infer, discrimination is not a plausible conclusion.” 4 (citing Twombly, 550 U.S. at 567). 5 also was deficient because it did not “contain any factual allegation 6 sufficient to plausibly suggest [Defendants’] discriminatory state of 7 mind.” alternative explanation’ for the arrests ... and the Id. at 1951-52 The Court added that the complaint Id. at 1952. 8 In July 2009, the Ninth Circuit applied the standard articulated in 9 Twombly and Iqbal, again in the context of a civil rights claim against 10 the government. 11 protesting against then-President George W. Bush, outside a restaurant 12 in which he was eating. 13 Secret 14 demonstrators but left a similarly-situated pro-President demonstration 15 in place, as well as diners inside the restaurant. 16 protestors sued the Secret Service, alleging the agency pursued an 17 unspoken policy of moving anti-President protestors only, in violation 18 of the First Amendment’s prohibition on viewpoint discrimination. 19 After discussing Twombley and Iqbal, The Ninth Circuit held that the 20 plaintiffs failed to state a claim. In reaching this holding, the Ninth 21 Circuit summarized the new pleading standard as follows: 22 23 24 25 26 27 Service Moss, 572 F.3d at 967-972. and Id. 970-971. local police Moss concerned a group Citing safety concerns, the relocated the anti-President Id. The relocated Id. “A claim has facial plausibility, the [Supreme] Court explained, ‘when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’ 129 S.Ct. at 1949. ‘The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.’ Id. (quoting Twombly, 550 U.S. at 556). ‘Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to relief.’ Id. (quoting Twombly 550 U.S. at 557). 28 15 08cv1602-BTM (BLM) 1 In sum, for a complaint to survive a motion to dismiss, the non-conclusory ‘factual content,’ and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” 2 3 Moss, 572 F.3d at 969 (some internal citation and punctuation omitted). 4 Applying this standard to the claims before it, the Moss court held 5 that although the facts did not “rule out the possibility of viewpoint 6 discrimination, and thus at some level [] are consistent with a viable 7 First Amendment claim ... mere possibility is not enough” to survive a 8 motion to dismiss. Id. at 971-72; but see Al-Kidd v. Ashcroft, --- 9 F.3d ---, 2009 WL 2836448, at *21-*24 (9th Cir. Sept. 4, 2009) (civil 10 rights case distinguishing Iqbal and finding plaintiff pled sufficient 11 facts to articulate plausible claim). With this new standard in mind, 12 the Court assesses Plaintiff’s claims. 13 1. 14 Plaintiff’s Eighth Amendment Claim Punishment Against Defendant Reid. of Cruel and Unusual 15 Plaintiff alleges that as he and Defendant Reid were talking, 16 Defendant Reid, who was in sole control of Plaintiff’s cell door, 17 intentionally and without warning closed Plaintiff’s head in the door. 18 Compl. at 3. Plaintiff states that although his head remained trapped, 19 causing him to scream from “excruciating pain,” and another correctional 20 officer to “scream[]” as well, Defendant Reid did not open the door. 21 Ultimately, Id. another inmate forced the door open to release 22 Plaintiff’s head. Id. As a result of this incident, Plaintiff alleges 23 “irreparable harm, from constant pain to needing a mood stabilizer 24 especially for anxieties with authorities.” Id.7 Defendants argue that 25 26 7 27 28 These events are further elaborated upon in a declaration attached to Defendants’ memorandum in support of the motion to dismiss, and exhibits accompanying the declaration. Decl. Franklin at 3-4; id. Exs. A & B (copies of Plaintiff’s prison complaints, specifying, inter alia, that Plaintiff originally stated that Defendant 16 08cv1602-BTM (BLM) 1 because Plaintiff fails to provide enough detail regarding the incident, 2 the claim should be dismissed under Rule 12(b)(6). 3 Specifically, Defendants contend that Plaintiff fails to show Defendant 4 Reid’s use of force was malicious rather than a permissible good-faith 5 effort to maintain or restore discipline, or that the use of force was 6 not required by the circumstances. 7 Def. Mem. at 8-9. Id. “[T]he unnecessary and wanton infliction of pain constitutes cruel 8 and unusual punishment forbidden by the Eighth Amendment.” 9 McMillian, 503 U.S. 1, 5 (1992) (internal punctuation omitted) (citing 10 Whitley v. Albers, 475 U.S. 312, 319 (1986)); see also Gregg v. Georgia, 11 428 U.S. 153, 173 (1976) (Eighth Amendment violation when state inflicts 12 punishment “so totally without penological justification that it results 13 in the gratuitous infliction of suffering”). 14 determining whether prison officials used excessive force in violation 15 of the Eighth Amendment is “whether force was applied in a good-faith 16 effort 17 sadistically to cause harm.” 18 whether an official acted maliciously, a court must ascertain whether he 19 or she acted with “deliberate indifference” to an inmate’s health or 20 safety. 21 prisoner does not determine a claim’s success. to maintain Id. at 8. or restore discipline, Hudson v. The core inquiry in or maliciously Hudson, 503 U.S. at 6-7. and In determining While relevant, the degree of injury suffered by the Id. 22 23 24 25 26 27 28 Reid shut Plaintiff’s head in the tray slot of the cell door, not the cell door itself). However, when evaluating Defendants’ 12(b)(6) motion, the Court may not consider these documents. Williston Basin Insterstate Pipeline Co. v. An Exclusive Gas Storage Leasehold and Easement in the Cloverly Subterranean, Geological Formation, 524 F.3d 1090, 1096 (9th Cir. 2008) (when adjudicating 12(b)(6) motion, court may “consider only allegations contained in the pleadings, exhibits attached to the complaint as true, and matters properly subject to judicial notice”); Schneider, 151 F.3d at 1197 n.1. This additional information is not attached to the complaint or contained in any pleading, and no party has requested the that the Court take judicial notice of it. Additionally, even if the Court incorporates the additional facts contained in the Franklin Declaration, its recommendations remain the same. 17 08cv1602-BTM (BLM) 1 Here, the Court must accept as true that while Plaintiff and 2 Defendant Reid were talking, Defendant Reid suddenly closed the cell 3 door on Plaintiff’s head. 4 must accept non-conclusory factual allegations as true). 5 the screams of Plaintiff and another correctional officer, Defendant 6 Reid left Plaintiff’s head in the cell door until another inmate 7 released it. 8 plausible Eighth Amendment violation.8 9 Compl. at 3; Iqbal, 129 S.Ct. at 1950 (court Compl. at 3. And, despite Under these facts, Plaintiff states a Defendants contend that Plaintiff fails to show Defendant Reid’s 10 actions 11 discipline.” 12 plead the absence of a situation (such as a prison riot or other threat 13 of harm) which, if established, would excuse Defendant Reid’s violent 14 action. Rather, Plaintiff is required to plead facts which, if accepted 15 as true, would plausibly constitute a claim. 16 Cholla Ready Mix, 382 F.3d at 973 (court required to view facts in light 17 most favorable to non-moving party). 18 closed the door on Plaintiff’s head as they “spoke to each other.” 19 Compl. at 3. 20 or potentially violent situation. Further, the fact that Defendant Reid 21 permitted another prisoner to release Plaintiff’s head from the door 22 strongly indicates the absence of a dangerous situation requiring 23 Plaintiff’s incapacitation. 24 here do not suggest a “more likely,” non-constitutionally-violative were not a “good-faith Def. Mem. at 8-9. effort to maintain or restore However, Plaintiff is not required to Twombly, 550 U.S. at 570; Additionally, Defendant Reid Although a bare statement, this does not suggest a violent Unlike Iqbal or Moss, the circumstances 25 26 27 28 8 In making this statement, the Court does not comment on the plausibility of the scenario described in the Complaint. When adjudicating a motion to dismiss, a court is required to accept as true even “unrealistic or nonsensical” allegations. Iqbal, 129 S.Ct. at 1951. At this stage, the question is whether the facts as plead plausibly suggest a claim, rather than whether the facts themselves are plausible. Id. 18 08cv1602-BTM (BLM) 1 explanation. 2 Iqbal, 129 U.S. at 1951-522; Moss, 572 F.3d 971-72. Defendants also argue that Plaintiff fails to show that Defendant 3 Reid acted with malice. 4 to a defendant when the risk of harm is obvious. 5 U.S. 730, 738 (2002) (citation omitted). 6 would be harmed when a cell door is closed on his head is obvious, and 7 if that were not sufficient, Plaintiff “screamed” while trapped in the 8 door. 9 must provide more than an “unadorned, the-defendant-unlawfully-harmed-me 10 accusation,” plaintiff is not required to plead “detailed factual 11 allegations”); see also Buckley v. Gomez, 36 F.Supp. 2d 1216, 1226 (S.D. 12 Cal. 1997) (denying defendants’ motion for summary judgment because 13 material issue of fact existed as to whether prison guard maliciously 14 permitted plaintiff’s head to remain in closed cell door); Al-Kidd, 2009 15 WL 2836448, at * 22 (civil rights plaintiff plead sufficient facts to 16 withstand motion to dismiss). 17 Defendants’ motion to dismiss Plaintiff’s Eighth Amendment claim against 18 Defendant Reid for failure to state a claim be DENIED. 19 20 21 Compl. at 3. 2. Def. Mem. at 9. However, malice can be imputed Hope v. Pelzer, 536 The chance that an individual See Iqbal, 129 S.Ct. at 1949 (although plaintiff The Court therefore RECOMMENDS that Plaintiff’s Eighth Amendment Claim that Defendant Williams Was Deliberately Indifferent to a Serious Medical Need. Plaintiff argues that Defendant Williams denied him “adequate 22 medical care” in violation of the Eighth Amendment. 23 Specifically, Plaintiff contends that in the aftermath of the door- 24 closing incident, Defendant Williams conducted a medical inspection of 25 Plaintiff’s head and jaw, and “although [Defendant Williams] felt where 26 the swelling was on my head and jaw, he only circled the two areas on 27 the report marked ‘pain.’ 28 therefore his [medical report] was false.” Compl. at 4. Plaintiff also Compl. at 3-4. He refused to take the exam any further 19 08cv1602-BTM (BLM) 1 contends that Defendant Williams told Plaintiff he “could see no 2 physical damage.” 3 an allegation that Defendant Williams was deliberately indifferent to a 4 serious medical need. 5 construe pro se civil rights plaintiff’s claims). Defendants argue that 6 Plaintiff fails to show a sufficiently serious injury or plead enough 7 facts to constitute an Eighth Amendment violation, and that Plaintiff’s 8 claim therefore must be dismissed under Rule 12(b)(6). 9 11. 10 A public Compl. at 3. Liberally construed, this constitutes Erickson, 551 U.S. at 94 (court must liberally official’s “deliberate indifference Def. Mem. at 9- to a prisoner’s 11 serious illness or injury” violates the Eighth Amendment’s proscription 12 against cruel and unusual punishment. 13 105 (1976). 14 Eighth Amendment violation. 15 (9th Cir. 2002). The objective component generally is satisfied so long 16 as 17 sufficiently “serious” such that the “failure to treat [the] condition 18 could result in further significant injury or the unnecessary and wanton 19 infliction of pain.” 20 Cir. 2000) (en banc); see also Doty v. County of Lassen, 37 F.3d 540, 21 546 n.3 (9th Cir. 1994) (“serious” medical conditions are those a 22 reasonable doctor would think worthy of comment or treatment, those 23 which significantly affect the prisoner’s daily activities, and those 24 which are chronic and accompanied by substantial pain). the Estelle v. Gamble, 429 U.S. 97, There is both an objective and a subjective component to an prisoner alleges See Clement v. Gomez, 298 F.3d 898, 904 facts to show that his medical need is Id.; Lopez v. Smith, 203 F.3d 1122, 1131-32 (9th 25 The subjective component requires the prisoner to allege facts 26 showing a culpable mental state, specifically, “deliberate indifference 27 to a substantial risk of serious harm.” 28 825, 836 (1994). Farmer v. Brennan, 511 U.S. “Deliberate indifference” is evidenced only when “the 20 08cv1602-BTM (BLM) 1 official knows of and disregards an excessive risk to inmate health or 2 safety; the official must both be aware of the facts from which the 3 inference could be drawn that a substantial risk of serious harm exists, 4 and he must also draw the inference.” Id. at 837. 5 Plaintiff meets neither the objective nor the subjective components 6 of this test. Regarding the former, Plaintiff does not allege a serious 7 injury that Defendant Williams failed to treat. 8 merely alleges that Defendant Williams failed to note on the medical 9 report the swelling on Plaintiff’s head and Rather, Plaintiff jaw. Compl. at 4. 10 Plaintiff does not allege, or present any facts to support such an 11 allegation, that the swelling was substantial such that “the failure to 12 treat [it] could result in further significant injury or the unnecessary 13 and wanton infliction of pain.” 14 Plaintiff admits that Defendant Williams stated that he did not observe 15 any physical damage. 16 factual support, that Defendant Williams could feel swelling (id. at 4), 17 the facts, rather than bare assertions, establish that Plaintiff has not 18 alleged a serious medical condition that a “reasonable doctor would 19 think worthy of comment.” 20 Clement, 298 F.3d at 904. Compl. at 3. Moreover, While Plaintiff asserts, without Doty, 37 F.3d at 546 n.3. Plaintiff also fails to allege any facts indicating that Defendant 21 Williams’ conduct caused or exacerbated his injury. 22 states that the door-closing incident caused “irreparable harm, from 23 constant pain to needing a mood stabilizer especially for anxieties with 24 authorities” (Compl. at 3), he does not connect this harm to Defendant 25 Williams. 26 complaint must directly connect defendants’ actions with alleged harm); 27 Preschooler II v. Clark County School Bd. of Trustees, 479 F.3d 1175, 28 1183 (requiring a “causal connection” between official’s act and harm Although Plaintiff See Moss, 557 F.3d at 971 (to survive Rule 12(b)(6) motion, 21 08cv1602-BTM (BLM) 1 suffered). 2 less, or received better treatment, had Defendant Williams’ medical 3 report noted “swelling” as well as “pain.” 4 claim is deficient because it fails to adequately allege an objectively 5 serious medical need. Plaintiff also fails to explain how he would have suffered Accordingly, Plaintiff’s 6 Plaintiff also fails under the subjective component of the test. 7 “In order to show deliberate indifference, an inmate must allege 8 sufficient facts to indicate that prison officials acted with a culpable 9 state of mind.” Wilson v. Seiter, 501 U.S. 294, 302 (1991). The 10 indifference must be substantial, and inadequate treatment due to 11 malpractice, or even gross negligence, does not rise to the level of a 12 constitutional violation. 13 is based on allegations that while Defendant Williams examined his head 14 and jaw, he stated that he did not believe Plaintiff’s explanation for 15 the injury, stated he “could see no physical damage,” refused to “take 16 the exam any further,” and then filed a false medical report by failing 17 to include the swelling on Plaintiff’s face. Compl. at 2-4. 18 these do 19 “unquestioned and serious deprivations of basic human needs,” or denials 20 “of the minimal civilized measure of life’s necessities” necessary for 21 an Eighth Amendment claim. 22 allegations are Estelle, 429 U.S. at 106. true, they still Plaintiff’s claim not Assuming constitute the Rhodes, 452 U.S. at 347. First, Plaintiff does not allege what further medical examination 23 Defendant Williams was required to conduct. 24 his head and jaw, and Defendant Williams inspected those. 25 (Defendant Williams “felt where there was swelling on my head & jaw”). 26 Although 27 examination, a difference of opinion regarding the preferred course of 28 medical treatment does not constitute an Eighth Amendment violation. Plaintiff believes that 22 he Plaintiff’s injury was to required a Compl. at 3 more thorough 08cv1602-BTM (BLM) 1 Gillen v. D’Amico, 237 Fed.Appx. 173, 174 (9th Cir. 2007); Sanchez v. 2 Vild, 891 F.2d 240, 242 (9th Cir. 1989). Similarly, Defendant Williams’ 3 decision to omit “swelling” from the medical report may well reflect his 4 medical opinion that Plaintiff’s swelling was not sufficient to merit 5 notation. 6 Second, even when combined with Defendant Williams’ statement that 7 he thought Plaintiff lied about the source of his injuries (Compl. at 8 3), the alleged actions do not plausibly indicate a “wanton” infliction 9 of suffering betraying a culpable state of mind. Wilson, 501 U.S. at 10 302 (in context of Eighth Amendment “the offending conduct must be 11 wanton”) (emphasis in original). Rather, the more likely explanation is 12 that in performing a limited exam and not indicating “swelling,” 13 Defendant Reid followed his judgment as a medical technician. 14 Iqbal, 129 S.Ct. at 1952 (granting motion to dismiss when complaint did 15 not contain “any factual allegation sufficient to plausibly suggest” 16 government actors’ culpable mental state); Moss, 572 F.3d at 971-72 17 (same). See 18 For the above reasons, this Court RECOMMENDS that Plaintiff’s 19 Eighth Amendment claim against Defendant Williams be DISMISSED WITHOUT 20 PREJUDICE. 21 plaintiff leave to amend complaint “unless the pleading could not 22 possibly be cured by the allegation of other facts”). 23 C. 24 See Ramirez, 334 F.3d at 861 (court should grant a pro se Plaintiff’s Fourteenth Amendment Claim. Plaintiff asserts that Defendants’ conduct also violated his 25 Fourteenth Amendment rights to “adequate medical care” and “freedom from 26 cruel and unusual punishment.” 27 Amendment’s substantive due process protections only are implicated when 28 the detainee has not been convicted of a crime. Compl. at 3. 23 However, the Fourteenth Ingraham v. Wright, 430 08cv1602-BTM (BLM) 1 U.S. 651, 671 n.40, 673-74 (1977); Jones v. Blanas, 393 F.3d 918, 931 2 (9th Cir. 2004). Because Plaintiff was a convicted prisoner at the time 3 of the allegedly unconstitutional actions, his claims arise solely under 4 the Eighth Amendment. 5 County of Sacramento v. Lewis, 523 U.S. 833, 843 (1998) (quoting United 6 States 7 substantive due process analysis is inappropriate when the claim already 8 is “‘covered by a specific constitutional provision, such as the Fourth 9 or Eighth Amendment ...’”). v. Lanier, See Ingraham, 430 U.S. at 671 n.40; see also 520 U.S. 259, 272 n.7 (1997)) (finding that 10 As discussed above, Plaintiff’s claims are covered by Eighth 11 Amendment’s prohibitions against cruel and unusual punishment and denial 12 of medical care. 13 Fourteenth Amendment claims be DISMISSED WITH PREJUDICE. 14 E. 15 This Court therefore RECOMMENDS that Plaintiff’s Eleventh Amendment Immunity. Plaintiff fails to state whether he is suing Defendants in their 16 individual or official capacities. 17 whether Defendants sued in official or individual capacities left 18 blank). 19 capacities, 20 liability for damages under the Eleventh Amendment. Compl. at 2 (check boxes indicating To the extent Plaintiff sues Defendants in their official Defendants correctly argue that they are immune from Def. Mem. at 2. 21 “The Eleventh Amendment bars actions for damages against state 22 officials who are sued in their official capacities in federal court.” 23 Dittman v. California, 191 F.3d 1020, 1025-26 (9th Cir. 1999); see also 24 Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989) (a suit 25 for damages against a state official in his or her official capacity is 26 a really a suit against the state itself, which is prohibited by the 27 Eleventh Amendment). 28 plaintiff sues official actors for prospective injunctive relief. Flint The only exception to this rule lies when a 24 08cv1602-BTM (BLM) 1 v. Dennison, 488 F.3d 816, 825 (9th Cir. 2007). 2 Here, Plaintiff requests only monetary damages, not injunctive 3 relief. 4 claims against Defendants in their official capacities be DISMISSED WITH 5 PREJUDICE. 6 F. 7 Compl. at 7. Therefore, the Court RECOMMENDS that Plaintiff’s Qualified Immunity. Defendants9 contend that, insofar as Plaintiff sues them in their 8 individual capacities10, they are protected by qualified immunity. 9 Mem. at 12-14. Def. Specifically, Defendants argue that because Plaintiff 10 has not articulated a constitutional violation, they are immune from 11 prosecution. 12 Plaintiff does not address the issue. Qualified immunity shields government officials performing 13 discretionary functions from liability for civil damages unless their 14 conduct violates clearly established statutory or constitutional rights 15 of which a reasonable person would have known. 16 483 U.S. 635, 638-40 (1987). “Qualified immunity is ‘an entitlement not 17 to stand trial or face the other burdens of litigation.’” 18 Katz, 533 U.S. 194, 200 (2001) (quoting Mitchell v. Forsyth, 472 U.S. 19 511, 526 (1985)). 20 a mere defense to liability; and like an absolute immunity, it is 21 effectively lost if a case is erroneously permitted to go to trial.” 22 Id. at 200-01 (quoting Mitchell, 472 U.S. at 526). Anderson v. Creighton, Saucier v. This privilege is “an immunity from suit rather than Thus, the Supreme 23 24 25 9 While Defendants’ moving papers reference a “Defendant Peterson” and a “First Amended Complaint” (Def. Mem. at 13), the Court will evaluate the claim to qualified immunity as if asserted by Defendants Reid and Williams in relation to the claims alleged in Plaintiff’s complaint. 26 10 27 28 Although Plaintiff does not indicate the capacity in which he sues Defendants, the Ninth Circuit repeatedly has held that “a section 1983 suit against state actors necessarily implies a suit against the defendants in their personal capacities.” Cerrato v. San Francisco Cmty. Coll. Dist., 26 F.3d 968, 973 n.16 (9th Cir. 1994). 25 08cv1602-BTM (BLM) 1 Court “repeatedly [has] stressed the importance of resolving immunity 2 questions at the earliest possible stage in litigation.” 3 (quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam)). 4 Assessing qualified immunity is a two-step process. Id. at 201 Saucier, 533 5 U.S. at 201. 6 most favorable to the party asserting the injury, [] the facts alleged 7 show the officer’s conduct violated a constitutional right.” 8 533 U.S. at 201. 9 established such that “it would be clear to a reasonable officer that First, a court must consider whether “[t]aken in the light Saucier, Second, the allegedly-violated right must be clearly 10 his conduct was unlawful in the situation he confronted.” 11 02. 12 requires — i.e. the right is not clearly established — the officer is 13 entitled to immunity. 14 discretion in deciding which of the two prongs of the qualified immunity 15 analysis should be addressed first in light of the circumstances in the 16 particular case at hand.” 17 808, 818 (2009). Id. at 201- If an officer makes a reasonable mistake as to what the law Id. at 202-03. Courts may “exercise their sound Pearson v. Callahan, --- U.S. ---, 129 S. Ct. 18 1. 19 Interpreting the facts in the light most sympathetic to Plaintiff, 20 Defendant Reid closed a cell door on Plaintiff’s head without warning, 21 and permitted it to remain there for an extended period of time despite 22 the loud protestations of Plaintiff and another prison guard. Compl. at 23 3. 24 this manner, they allege that Defendant Reid violated Plaintiff’s 25 constitutional right to be free from cruel and unusual punishment. 26 Hudson, 503 U.S. at 6-7 (violation of Eighth Amendment when prison guard 27 uses force “maliciously and sadistically to cause harm”). As Defendants 28 apparently concede since they do not address it, this right is clearly Plaintiff’s Eighth Amendment Claim Against Defendant Reid. As discussed above (supra at 16-19), when the facts are construed in 26 08cv1602-BTM (BLM) 1 established. 2 (correctional officer should know that banging prisoner’s head into wall 3 violated “clearly established” Eighth Amendment prohibition against 4 malicious and sadistic use of force); see also Buckley, 36 F.Supp. 2d at 5 1227 (denying motion for qualified immunity because factual question 6 existed 7 constitutional 8 Defendants’ motion to dismiss Plaintiff’s claim against Defendant Reid 9 on qualified immunity grounds be DENIED WITHOUT PREJUDICE. as See Watts v. McKinney, 394 F.3d 710, 711 (9th Cir. 2005) to whether defendants’ violation). The conduct Court rose therefore to level RECOMMENDS of that 10 2. 11 As set forth above, the Court has recommended that the Eighth 12 Amendment claim asserted against Defendant Williams be dismissed without 13 prejudice for failure to state a claim. 14 there is no viable claim alleged against Defendant Williams, the Court 15 is unable to evaluate whether he is entitled to qualified immunity for 16 the 17 constitutional violation, there can be no determination regarding the 18 applicability of qualified immunity. As stated by the Supreme Court, if 19 plaintiff fails to plead a constitutional violation, “there is no 20 necessity 21 Saucier, 533 U.S. at 201. 22 Defendants’ 23 Williams on qualified immunity grounds be DENIED WITHOUT PREJUDICE. 24 G. Plaintiff’s Eighth Amendment Claim Against Defendant Williams. alleged conduct. for Unless further motion to and inquiries See, supra at 19-23. until concerning Plaintiff qualified Accordingly, the Court dismiss Plaintiff’s claim Because alleges a immunity.” RECOMMENDS that against Defendant Summary of Recommendations. 25 To summarize the foregoing, the Court recommends that: 26 (1) All of Plaintiff’s claims be dismissed without prejudice for 27 28 failure to exhaust administrative remedies; (2) Defendants’ motion to dismiss 27 Plaintiff’s claim against 08cv1602-BTM (BLM) 1 Defendant Reid for failure to state a claim be denied without prejudice; 2 (3) Defendants’ motion to dismiss Plaintiff’s claim against 3 Defendant Williams for failure to state a claim be granted, and that 4 claim be dismissed with leave to amend; 5 6 (4) Plaintiff’s Fourteenth Amendment claims be dismissed with prejudice; 7 (5) Insofar as Plaintiff sues Defendants in their official 8 capacities, those claims be dismissed with prejudice under the doctrine 9 of Eleventh Amendment immunity; 10 11 (6) Defendants’ motion to dismiss due to qualified immunity for Defendant Reid be denied without prejudice, and; 12 13 (7) Defendants’ motion to dismiss due to qualified immunity for Defendant Williams be denied without prejudice. 14 CONCLUSION 15 For the foregoing reasons, IT IS HEREBY RECOMMENDED that the 16 District Court issue an Order: (1) approving and adopting this Report 17 and Recommendation, (2) granting Defendants’ Motion to Dismiss. 18 IT IS HEREBY ORDERED that any written objections to this Report 19 must be filed with the Court and served on all parties no later than 20 October 20, 2009. 21 Report and Recommendation.” 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// The document should be captioned “Objections to 28 08cv1602-BTM (BLM) 1 IT IS FURTHER ORDERED that any reply to the objections shall be 2 filed with the Court and served on all parties no later than November 3 10, 2009. 4 within the specified time may waive the right to raise those objections 5 on appeal of the Court’s order. 6 (9th Cir. 1998). The parties are advised that failure to file objections See Turner v. Duncan, 158 F.3d 449, 455 7 DATED: September 29, 2009 8 9 10 BARBARA L. MAJOR United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 08cv1602-BTM (BLM)

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