-POR Sherman v. Small et al, No. 3:2010cv00290 - Document 26 (S.D. Cal. 2011)
Court Description: ORDER granting in part and denying in part Defendants' Motion for More Definite Statement and 20 Motion to Dismiss. Court denies Dfts' Motion for More Definite Statement, grants Dfts' Motion to Dismiss on 11th Amendment grounds only to extent Pla seeks damages against them in their official capacities, and denies Dfts' Motion to Dismiss Pla's 1st Amendment retaliation claims pursuant FRCP 12(b)(6). Dfts Aguilar, Delgado and Gonzales shall file their Answer to the retal iation claims that remain in Pla's Third Amended Complaint w/in 14 days of the date this Order is filed pursuant to FRCP 12(a)(4)(A). Signed by Judge Irma E. Gonzalez on 3/3/2011. (All non-registered users served via U.S. Mail Service)(jah). Modified on 3/3/2011 - Edited text (jah).
Download PDF
<![CDATA[
-POR Sherman v. Small et al Doc. 26 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 JOSEPH HOWARD SHERMAN, CDCR #H-41665, Civil No. Plaintiff, 13 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR MORE DEFINITE STATEMENT AND MOTION TO DISMISS PLAINTIFF’S THIRD AMENDED COMPLAINT PURSUANT TO FED.R.CIV.P. 12(b)(6) 14 vs. 15 16 17 10cv0290 IEG (POR) J. AGUILAR; E. DELGADO; D.R. GONZALES, 18 [Doc. No. 20] Defendants. 19 20 21 I. PROCEDURAL BACKGROUND 22 Joseph Howard Sherman (“Plaintiff”), a prisoner currently incarcerated at Calipatria State 23 Prison located in Calipatria, proceeding pro se and in forma pauperis, has filed a civil rights 24 action pursuant to 42 U.S.C. § 1983. The Court conducted a sua sponte screening of Plaintiff’s 25 original Complaint, along with all his subsequent amended Complaints pursuant to 28 U.S.C. 26 § 1915(e)(2) and § 1915A. On October 15, 2010, the Court conducted its required sua sponte 27 screening of Plaintiff’s Third Amended Complaint and issued an extensive Order dismissing a 28 number of the claims and Defendants. (See Oct. 15, 2010 Order at 1-9.) The Court found that C:\Documents and Settings\Lc2gon\Desktop\10cv0290-grt & dny MTD.wpd 1 10cv290 IEG (POR) Dockets.Justia.com 1 Plaintiff had sufficiently alleged retaliation claims against Defendants Aguilar, D.R. Gonzales 2 and E. Delgado. Id. at 2-3. Those are the only remaining claims in Plaintiff’s Third Amended 3 Complaint (“TAC”). 4 Defendants Aguilar, Delgado and Gonzales (“Defendants”) have now filed a Motion for 5 More Definite Statement and Motion to Dismiss Plaintiff’s Third Amended Complaint pursuant 6 to FED.R.CIV.P. 12(b)(6) [Doc. No. 20]. Plaintiff filed his Opposition on February 2, 2011 [Doc. 7 No. 21] to which Defendants have filed their Reply [Doc. No. 22]. The Court permitted Plaintiff 8 to file a sur Reply on February 22, 2011. 9 The Court has determined that Defendants’ Motion is suitable for disposition upon the 10 papers without oral argument and that no Report and Recommendation from Magistrate Judge 11 Louisa S. Porter is necessary. See S.D. CAL. CIVLR 7.1(d)(1), 72.3(e). 12 II. DEFENDANTS’ MOTION TO DISMISS 13 A. Defendants’ Arguments 14 Defendants seek dismissal of Plaintiff’s Third Amended Complaint on the following 15 grounds: (1) Plaintiff has failed to comply with Rule 8; (2) Plaintiff has failed to state a 16 retaliation claim against Defendants; and (3) Defendants are entitled to Eleventh Amendment 17 immunity to the extent Plaintiff seeks money damages against them in their official capacities. Motion for a More Definite Statement per FED.R.CIV.P. 12(e) 18 B. 19 Defendants have brought a motion for a more definite statement of Plaintiff’s claims 20 pursuant to FED.R.CIV.P. 12(e).1 Defendants claim that Plaintiff’s “TAC intermingles all of the 21 allegations with all of the twenty-one defendants, and all counts, making the TAC very 22 confusing.” (Defs.’ Memo. of Ps & As at 4.) 1. 23 Standard of Review 24 A Rule 12(e) motion for a more definite statement is proper when the pleading at issue 25 “is so vague or ambiguous that a party cannot reasonably be required to frame a responsive 26 pleading.” FED.R.CIV.P. 12(e). However, a motion for a more definite statement must be 27 1 28 Defendants fail to actually cite to Federal Rule of Civil Procedure 12(e) but in their request to dismiss all of Plaintiff’s claims as failing to comply with Federal Rule of Civil Procedure 8(a) they request that the Court “order the Plaintiff to provide the Defendants a more definite statement of facts.” (See Defs.’ Memo. of Ps & As at 5.) 2 C:\Documents and Settings\Lc2gon\Desktop\10cv0290-grt & dny MTD.wpd 10cv290 IEG (POR) 1 considered in light of the liberal pleading standards of Rule 8(a) (a complaint need only be a 2 “short and plain statement of the claim showing that the pleader is entitled to relief[.]”). See 3 Sagan v. Apple Computer, Inc., 874 F. Supp. 1072, 1077 (C.D. Cal. 1994) (“Motions for a more 4 definite statement are viewed with disfavor and are rarely granted because of the minimal 5 pleading requirements of the Federal Rules.”); see also Bureerong v. Uvawas, 922 F. Supp. 6 1450, 1461 (C.D. Cal. 1996) (“A motion for a more definite statement attacks unintelligibility 7 in a pleading, not simply mere lack of detail.”) (citation omitted). Thus, a motion for a more 8 definite statement should not be granted unless the defendant literally cannot frame a responsive 9 pleading. Boxall v. Sequoia Union High School Dist., 464 F. Supp. 1104, 1114 (N.D. Cal. 10 11 1979). 2. Analysis 12 It is a well established rule that allegations asserted by pro se petitioners, “however 13 inartfully pleaded,” are held “to less stringent standards than formal pleadings drafted by 14 lawyers.” Haines v. Kerner, 404 U.S. 519-20 (1972). Thus, where a plaintiff appears in propria 15 persona in a civil rights case, the Court must construe the pleadings liberally and afford plaintiff 16 any benefit of the doubt. See Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th 17 Cir. 1988). The Court was mindful of this obligation when it thoroughly screened Plaintiff’s 18 Complaint, First Amended Complaint, Second Amended Complaint and Third Amended 19 Complaint pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). (See March 19, 2010 Order, June 20 4, 2010 Order, July 27, 2010 Order and October 15, 2010 Order.) 21 Defendants first claim that Plaintiff’s Third Amended Complaint is “incredibly 22 confusing” and is “hand written using extremely small letters, making it indecipherable in many 23 places.” (See Defs. Memo. of Ps & As at 2.) The Court disagrees. The Court has a very lengthy 24 history of handling litigation involving prisoners and finds that most of the pleadings filed by 25 prisoners are handwritten due to their lack of access to typewriters and printers unlike counsel 26 for Defendants. In addition, having reviewed a number of pleadings filed by the Plaintiff in this 27 case, the Court finds Plaintiff’s handwriting to be far more legible than many of the handwriting 28 submissions the Court reviews in other matters. C:\Documents and Settings\Lc2gon\Desktop\10cv0290-grt & dny MTD.wpd 3 10cv290 IEG (POR) 1 Defendants also indicate that Plaintiff’s Third Amended Complaint is “very confusing.” 2 (See Defs. Memo. of Ps & As at 4.) Again, the Court disagrees. The Court thoroughly combed 3 through Plaintiff’s Third Amended Complaint, in addition to all the previous filings, and 4 provided Defendants with an extensive screening Order that informed them of the one remaining 5 claim against only three of the remaining Defendants. The Court was not at all confused by 6 Plaintiff’s Third Amended Complaint which had numbered paragraphs and clearly identified the 7 causes of action being brought against Defendants. Thus, Defendants’ Motion for More Definite 8 Statement is DENIED. 9 C. FED.R.CIV.P. 12(b)(6) Standard of Review 10 A Rule 12(b)(6) dismissal may be based on either a “‘lack of a cognizable legal theory’ 11 or ‘the absence of sufficient facts alleged under a cognizable legal theory.’” Johnson v. 12 Riverside Healthcare System, LP, 534 F.3d 1116, 1121-22 (9th Cir. 2008) (quoting Balistreri 13 v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990)). In other words, the plaintiff’s 14 complaint must provide a “short and plain statement of the claim showing that [he] is entitled 15 to relief.” Id. (citing FED.R.CIV.P. 8(a)(2)). “Specific facts are not necessary; the statement need 16 only give the defendant[s] fair notice of what ... the claim is and the grounds upon which it 17 rests.” Erickson v. Pardus, 551 U.S. 89, 127 S. Ct. 2197, 2200 (2007) (internal quotation marks 18 omitted). 19 A motion to dismiss should be granted if plaintiff fails to proffer “enough facts to state 20 a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 21 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the 22 court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 23 Ashcroft v. Iqbal, 556 U.S. ----, 129 S.Ct. 1937, 1949 (2009) . 24 In addition, factual allegations asserted by pro se petitioners, “however inartfully 25 pleaded,” are held “to less stringent standards than formal pleadings drafted by lawyers.” 26 Haines, 404 U.S. at 519-20. Thus, where a plaintiff appears in propria persona in a civil rights 27 case, the Court must construe the pleadings liberally and afford plaintiff any benefit of the doubt. 28 See Karim-Panahi, 839 F.2d at 623. C:\Documents and Settings\Lc2gon\Desktop\10cv0290-grt & dny MTD.wpd 4 10cv290 IEG (POR) 1 Nevertheless, and in spite of the deference the court is bound to pay to any factual 2 allegations made, it is not proper for the court to assume that “the [plaintiff] can prove facts 3 which [he or she] has not alleged.” Associated General Contractors of California, Inc. v. 4 California State Council of Carpenters, 459 U.S. 519, 526 (1983). Nor must the court “accept 5 as true allegations that contradict matters properly subject to judicial notice or by exhibit” or 6 those which are “merely conclusory,” require “unwarranted deductions” or “unreasonable 7 inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.) (citation omitted), 8 amended on other grounds, 275 F.3d 1187 (9th Cir. 2001); see also Ileto v. Glock Inc., 349 F.3d 9 1191, 1200 (9th Cir. 2003) (court need not accept as true unreasonable inferences or conclusions 10 of law cast in the form of factual allegations). 1. 11 Eleventh Amendment Immunity 12 Defendants seek dismissal of Plaintiff’s Third Amended Complaint to the extent he seeks 13 money damages against them based on actions taken in their “official” capacity. While the 14 Eleventh Amendment bars a prisoner’s section 1983 claims against state actors sued in their 15 official capacities, Will, 491 U.S. at 66, it does not bar damage actions against state officials sued 16 in their personal or individual capacities. Hafer v. Melo, 502 U.S. 21, 31 (1991); Pena v. 17 Gardner, 976 F.2d 469, 472-73 (9th Cir. 1992). When a state actor is alleged to have violated 18 both federal and state law and is sued for damages under section 1983 in his individual or 19 personal capacity, there is no Eleventh Amendment bar, even if state law provides for 20 indemnification. Ashker v. California Dep’t of Corrections, 112 F.3d 392, 395 (9th Cir. 1997). 21 The Supreme Court has made it clear that a plaintiff can establish personal liability in a 22 section 1983 action simply by showing that each official acted under color of state law in 23 deprivation of a federal right. Hafer, 502 U.S. at 25. Consequently, the Court GRANTS 24 Defendants’ Motion to Dismiss on Eleventh Amendment grounds only to the extent that Plaintiff 25 seeks damages against them in their official capacity. The Eleventh Amendment imposes no bar 26 to Plaintiff’s damages action against Defendants in their personal capacities, however. See 27 Stivers v. Pierce, 71 F.3d 732, 749 (9th Cir. 1995). 28 /// C:\Documents and Settings\Lc2gon\Desktop\10cv0290-grt & dny MTD.wpd 5 10cv290 IEG (POR) 1 2. Retaliation claims 2 Defendants seek dismissal of Plaintiff’s Third Amended Complaint, in part, on the 3 grounds that he has failed to plead facts sufficient to state a First Amendment retaliation claim. 4 (See Defs.’ P&A’s at 8–9.) 5 To the extent Plaintiff claims Defendants have retaliated against him, he must allege facts 6 to support the following five factors: “(1) an assertion that a state actor took some adverse action 7 against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) 8 chilled the inmate’s exercise of his First Amendment right, and (5) the action did not reasonably 9 advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 566 (9th Cir. 2005); 10 see also Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994) (per curiam), Resnick v. Hayes, 11 213 F.3d 443, 449 (9th Cir. 2000); Hines v. Gomez, 108 F.3d 265, 269 (9th Cir. 1997). 12 Defendants argue that Plaintiff does not “allege any facts which demonstrate that the 13 actions of Defendants did not reasonably advance a legitimate correctional goal.” (Defs. Memo. 14 of Ps & As at 6.) Plaintiff alleges actions that were taken in violation of the regulations by 15 which Defendants were to abide by. (See TAC at 1-21.) Thus, the Court finds that Plaintiff has 16 alleged facts that show that Defendants acted in the absence of a “legitimate correctional goal.” 17 Rhodes, 408 F.3d at 566. 18 Defendants also argue that Plaintiff does not “allege any facts which demonstrate that his 19 First Amendment rights were ‘chilled.’” (Defs. Memo. of Ps and As at 6.) The Ninth Circuit 20 has reaffirmed the holding in Rhodes that “an objective standard governs the chilling inquiry” 21 of a retaliation claim. See Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir. 2009) (citing Rhodes, 22 408 F.3d at 568-69)). This means that a “plaintiff does not have to show that ‘his speech was 23 actually inhibited or suppressed,’ but rather that the adverse action at issue ‘would chill or 24 silence a person of ordinary firmness from future First Amendment activities.’” Id. Defendants 25 apply the wrong standard in their moving papers. Regardless, based on the objective standard, 26 the Court finds that Plaintiff’s allegations of threats following the filing of administrative 27 grievances satisfies the “chilling” inquiry. (See TAC at 19.) Accordingly, Defendants’ Motion 28 to Dismiss Plaintiff’s retaliation claims pursuant to FED.R.CIV.P. 12(b)(6) is DENIED. C:\Documents and Settings\Lc2gon\Desktop\10cv0290-grt & dny MTD.wpd 6 10cv290 IEG (POR) 1 III. CONCLUSION AND ORDER 2 Based on the foregoing, the Court hereby: 3 1) DENIES Defendants’ Motion for More Definite Statement. 4 2) GRANTS Defendants’ Motion to Dismiss on Eleventh Amendment grounds only 5 6 7 to the extent that Plaintiff seeks damages against them in their official capacities; and 3) DENIES Defendants’ Motion to Dismiss Plaintiff’s First Amendment retaliation claims pursuant to FED.R.CIV.P. 12(b)(6); 8 IT IS FURTHER ORDERED THAT: 9 Defendants Aguilar, Delgado and Gonzales shall file and serve their Answer to the 10 retaliation claims that remain in Plaintiff’s Third Amended Complaint within fourteen (14) days 11 of the date this Order is “Filed” pursuant to FED.R.CIV.P. 12(a)(4)(A). 12 IT IS SO ORDERED. 13 14 3/3/11 DATED: _____________________ 15 ___________________________________ HON. IRMA E. GONZALEZ, Chief Judge United States District Court 16 17 18 19 20 21 22 23 24 25 26 27 28 C:\Documents and Settings\Lc2gon\Desktop\10cv0290-grt & dny MTD.wpd 7 10cv290 IEG (POR)
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
