(PC) Dicey v. Harrison, W. R., et al., No. 2:2008cv02608 - Document 42 (E.D. Cal. 2010)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John F. Moulds on 5/18/10 recommending that 18 Motion to Dismiss be denied; and Defendants be directed to answer the amended complaint within ten days fromthe date of any order by the district court adopting these findings and recommendations. Referred to Judge John A. Mendez; Objections to F&R due within 14 days.(Dillon, M)
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(PC) Dicey v. Harrison, W. R., et al. Doc. 42 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 BERLAN LYNELL DICEY, 11 12 13 14 15 16 Plaintiff, No. 2:08-cv-2608-WBS-JFM (PC) vs. W. R. HARRISON, et al., Defendants. FINDINGS & RECOMMENDATIONS / Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 17 42 U.S.C. § 1983. This action is proceeding on plaintiff’s amended complaint, filed April 9, 18 2009, and is before the court on defendants’ motion to dismiss pursuant to Fed. R. Civ. P. 19 12(b)(6) for failure to state a claim upon which relief may be granted. 20 21 STANDARDS FOR A MOTION TO DISMISS Rule 12(b)(6) of the Federal Rules of Civil Procedures provides for motions to 22 dismiss for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). 23 In considering a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the court must accept as 24 true the allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197 25 (2007), and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 26 416 U.S. 232, 236 (1974). In order to survive dismissal for failure to state a claim a complaint 1 Dockets.Justia.com 1 must contain more than “a formulaic recitation of the elements of a cause of action;” it must 2 contain factual allegations sufficient “to raise a right to relief above the speculative level.” Bell 3 Atlantic Corp. v. Twombly, 550 U.S. 544, 554 (2007). However, “[s]pecific facts are not 4 necessary; the statement [of facts] need only ‘“give the defendant fair notice of what the . . . 5 claim is and the grounds upon which it rests.”’” Erickson, 551 U.S. 89, 127 S.Ct. at 2200 6 (quoting Bell Atlantic at 554, in turn quoting Conley v. Gibson, 355 U.S. 41, 47 (1957). 7 ALLEGATIONS OF THE AMENDED COMPLAINT 8 9 Plaintiff’s amended complaint contains the following allegations. On March 29, 2007, plaintiff was the victim of an assault by another inmate. After correctional officers used 10 pepper spray and batons to remove the assailant from plaintiff, plaintiff was ordered to turn over 11 and “prone out.” Amended Complaint, filed April 9, 2009, at 5. Plaintiff complied with the 12 order. Immediately thereafter, defendant Harrison “stated ‘Oh this is Dicey’” and then sprayed 13 pepper spray directly into plaintiff’s face and head area. Plaintiff yelled to defendant Harrison as 14 loud as he could to please stop because plaintiff has asthma and couldn’t breathe. Defendant 15 Harrison told plaintiff to shut up. Plaintiff became nauseated. Defendant Harrison told plaintiff 16 that if he spit again, defendant Harrison would spray him again. Plaintiff explained that if he spit 17 or threw up it would be an accident because he couldn’t breathe. Defendant Harrison responded 18 that if plaintiff spit again it would be an accident that defendant Harrison sprayed him. 19 Plaintiff was then escorted to the medical clinic. Defendant Harrison continued to 20 taunt him. Plaintiff was complaining to a correctional sergeant and defendant Pfadt that he 21 couldn’t see and felt like he was on fire, and he asked to be decontaminated. Defendant Harrison 22 told plaintiff to stop complaining. About twenty minutes after plaintiff was placed in a holding 23 cell he was inadequately decontaminated, even though he informed defendants that he suffers 24 from asthma. 25 26 Plaintiff has been subjected to “reprisals, harrassments [sic] and intimidation” by defendant Harrison and other correctional officers for using the administrative grievance process. 2 1 Amended Complaint at 7. Plaintiff suffered serious eye and skin injuries as a result of the spray 2 and now has to wear glasses. 3 4 DEFENDANTS’ MOTION TO DISMISS Defendants Harrison and Pfadt seek dismissal of this action on the ground that 5 plaintiff has not alleged facts which support a claim for violation of the Eighth Amendment 6 through use of excessive force. 7 “When prison officials use excessive force against prisoners, they violate the 8 inmates’ Eighth Amendment right to be free from cruel and unusual punishment.” Clement v. 9 Gomez, 298 F.3d 898, 903 (9th Cir.2002). “Force does not amount to a constitutional violation 10 in this respect if it is applied in a good faith effort to restore discipline and order and not 11 ‘maliciously and sadistically for the very purpose of causing harm.’ ” Id. (quoting Whitley v. 12 Albers, 475 U.S. 312, 320-21, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986)). Defendants contend that 13 plaintiff has not alleged any facts to support a claim of excessive force and that the allegations of 14 the amended complaint and the documents appended thereto “fully support the conclusion that 15 any alleged use of force was entirely appropriate under the circumstances and was applied in a 16 good faith effort to restore discipline.” Motion to Dismiss, filed September 1, 2009, at 7. 17 Defendants’ contention is without merit. 18 Plaintiff alleges that defendant Harrison sprayed him in the face with pepper spray 19 after the altercation was over and plaintiff was lying prone on the ground. Plaintiff also alleges 20 that defendant Harrison recognized plaintiff and identified him by name before he sprayed 21 plaintiff in the head and face with pepper spray. These allegations are sufficient to state a 22 cognizable claim of excessive force against defendant Harrison, and the court will recommend 23 that the motion to dismiss be denied as to defendant Harrison. 24 Plaintiff does not raise an excessive force claim against defendant Pfadt. Plaintiff 25 claims that defendant Pfadt violated plaintiff’s rights under the Eighth Amendment by acting 26 with deliberate indifference to plaintiff’s serious medical need for adequate and timely 3 1 decontamination after he was pepper sprayed by defendant Harrison. Defendant Pfadt has not 2 sought dismissal of this claim, and, in any event, the amended complaint states a cognizable 3 claim for deliberate indifference to plaintiff’s serious medical needs against both defendant 4 Harrison and defendant Pfadt. 5 For the foregoing reasons, IT IS HEREBY RECOMMENDED that: 6 1. Defendants’ September 1, 2009 motion to dismiss be denied; and 7 2. Defendants be directed to answer the amended complaint within ten days from 8 the date of any order by the district court adopting these findings and recommendations. 9 These findings and recommendations are submitted to the United States District 10 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 11 days after being served with these findings and recommendations, any party may file written 12 objections with the court and serve a copy on all parties. Such a document should be captioned 13 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 14 objections shall be filed and served within fourteen days after service of the objections. The 15 parties are advised that failure to file objections within the specified time may waive the right to 16 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 17 DATED: May 18, 2010. 18 19 20 21 22 12 dice2608.mtd 23 24 25 26 4
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