Andre Jones v. California Department of Corrections and Rehabilitation et al, No. 3:2011cv00296 - Document 49 (S.D. Cal. 2011)
Court Description: ORDER granting Defendants' 43 Motion to Dismiss Plaintiff's First Amended Complaint. Defendants California Dept of Corrections and Rehabilitation, Richard J. Donovan Correctional Facility, California State Prison-Los Angeles, and Morrero are dismissed. Court grants Dfts' motion to dismiss Pla's claims for money damages against them in their official capacities w/ prejudice. Court grants Dfts' motion to dismiss Pla's First Amended Complaint pursuant FRCP 12(b)(6). Pla is granted 45 days leave from the date of this Order is filed to file a Second Amended Complaint which cures the deficiencies of pleading. Dfts not named and all claims not re-alleged in the Amended Complaint will be deemed to have been waived. Signed by Judge Irma E. Gonzalez on 10/19/2011. (All non-registered users served via U.S. Mail Service) (jah)
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Andre Jones v. California Department of Corrections and Rehabilitation et al Doc. 49 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 ANDRE JONES CDCR #D-23917, Civil No. 13 Plaintiff, ORDER: 14 15 (1) SUA SPONTE DISMISSING DEFENDANTS PURSUANT TO 28 U.S.C. § 1915(e)(2); AND vs. 16 (2) GRANTING DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT PURSUANT TO FED.R.CIV.P. 12(b)(6) 17 18 19 20 11cv0296 IEG (BLM) K. BRADFORD, B. CASH; M. CAVAZOS; P. CORTEZ; K. CRUZ; M. DAVIS BUECHTER; R. DOTTAVIANO; T. GOFF; J. HOMER; M. RIDGEWAY; R WATSON, [ECF No. 43] Defendants. 21 22 23 I. 24 PROCEDURAL BACKGROUND 25 On March 26, 2010, Andre Jones (“Plaintiff”) initially filed his original Complaint [ECF 26 No. 1] in the Central District of California. At the time Plaintiff initially filed his Complaint he 27 was represented by counsel. On September 10, 2011, Plaintiff’s counsel, Leon P. Gilbert, was 28 relieved as counsel of record [ECF No. 12]. On February 8, 2011, United States District Judge 1 11cv0296 IEG (BLM) Dockets.Justia.com 1 Jacqueline H. Nguyen determined that venue was proper in the Southern District of California 2 and transferred the matter to this Court [ECF No. 16]. 3 On March 7, 2011, this Court issued an Order to Show Cause why the case should not be 4 dismissed for failing to effect service on any of the Defendants pursuant to FED.R.CIV.P. 4(m) 5 [ECF No. 19]. Plaintiff then filed a Motion to file an amended complaint, as well as a Motion 6 for U.S. Marshal Service [ECF Nos. 21, 25]. On April 26, 2011, Plaintiff filed his First 7 Amended Complaint (“FAC”) [ECF No. 29]. This Court then issued an Order directing the U.S. 8 Marshal Service to effect service of summons and Plaintiff’s First Amended Complaint [ECF 9 No. 30]. 10 Defendants Bradford, Cash, Cavazos, Cortez, Cruz, David Buechter, Dottaviano, Goff, 11 Homer, Ridgeway and Watson1 have filed a Motion to Dismiss Plaintiff’s First Amended 12 Complaint pursuant to FED.R.CIV.P. 12(b)(6) [ECF No. 43]. Plaintiff has filed his Opposition 13 to which Defendants have filed a Reply [ECF Nos. 44, 45]. The Court permitted Plaintiff to file 14 a sur Reply [ECF No. 48]. 15 The Court has determined that Defendants’ Motion is suitable for disposition upon the 16 papers without oral argument and that no Report and Recommendation from Magistrate Judge 17 Barbara Lynn Major is necessary. See S.D. CAL. CIVLR 7.1(d)(1), 72.3(e). 18 II. 19 SUA SPONTE DISMISSAL 20 As an initial matter, the Court notes that Plaintiff has failed to rename Defendants 21 California Department of Corrections and Rehabilitation, Richard J. Donovan Correctional 22 Facility, California State Prison - Los Angeles, and Morrero in his First Amended Complaint. 23 Thus, the claims against these Defendants have been waived and these Defendants are 24 DISMISSED from this action. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). 25 /// 26 /// 27 28 1 Counsel for Defendants have noted that the names of Defendants Cavazos and Davis Buechtner were erroneously spelled in Plaintiff’s First Amended Complaint. Accordingly, the Court will use the spelling of the names as provided by Defendants in their moving papers. 2 11cv0296 IEG (BLM) 1 III. 2 PLAINTIFF’S FACTUAL ALLEGATIONS 3 Plaintiff was initially housed at California State Prison, Lancaster on January 25, 2007. 4 (See FAC at 5.) Plaintiff was placed in “ad-seg” for safety concerns. (Id.). Plaintiff went to the 5 Institution Classification Committee (“ICC”) and informed Defendants Cash, Cruz, Bradford, 6 Dottaviano and Davis Buechter that he had “enemy concerns” and “could not be transferred to 7 Donovan State Prison.” (Id.) Plaintiff claims he was transferred to the Richard J. Donovan 8 Correctional Facility (“Donovan”) after his pleas and grievances were “ignored.” (Id.) 9 Once Plaintiff arrived at Donovan, he informed Defendants Cortez, Homer and Cavazos, 10 members of Donovan’s ICC, of his safety concerns but claims he was lead to believe that his 11 safety was not longer “at risk.” (Id.) As a result, Plaintiff withdrew his administrative 12 grievance. However, at the same time, Plaintiff requested that “Inmate McCloud” be placed on 13 his enemy list. (Id.) Plaintiff alleges that his correctional counselor, Defendant Goff, failed to 14 make this notation in Plaintiff’s file and McCloud was later transferred to Donovan. (Id.) 15 Plaintiff claims he “became the victim of an attempted murder.” (Id.) 16 IV. 17 DEFENDANTS’ MOTION TO DISMISS 18 A. FED.R.CIV.P. 12(b)(6) Standard of Review 19 A Rule 12(b)(6) dismissal may be based on either a “‘lack of a cognizable legal theory’ 20 or ‘the absence of sufficient facts alleged under a cognizable legal theory.’” Johnson v. 21 Riverside Healthcare System, LP, 534 F.3d 1116, 1121-22 (9th Cir. 2008) (quoting Balistreri 22 v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990)). In other words, the plaintiff’s 23 complaint must provide a “short and plain statement of the claim showing that [he] is entitled 24 to relief.” Id. (citing FED.R.CIV.P. 8(a)(2)). “Specific facts are not necessary; the statement 25 need only give the defendant[s] fair notice of what ... the claim is and the grounds upon which 26 it rests.” Erickson v. Pardus, 551 U.S. 89, 127 S. Ct. 2197, 2200 (2007) (internal quotation 27 marks omitted). 28 /// 3 11cv0296 IEG (BLM) 1 A motion to dismiss should be granted if plaintiff fails to proffer “enough facts to state 2 a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 3 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the 4 court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 5 Ashcroft v. Iqbal, 556 U.S. ----, 129 S.Ct. 1937, 1949 (2009). In addition, factual allegations 6 asserted by pro se petitioners, “however inartfully pleaded,” are held “to less stringent standards 7 than formal pleadings drafted by lawyers.” Haines, 404 U.S. at 519-20. Thus, where a plaintiff 8 appears in propria persona in a civil rights case, the Court must construe the pleadings liberally 9 and afford plaintiff any benefit of the doubt. See Karim-Panahi, 839 F.2d at 623. 10 Nevertheless, and in spite of the deference the court is bound to pay to any factual 11 allegations made, it is not proper for the court to assume that “the [plaintiff] can prove facts 12 which [he or she] has not alleged.” Associated General Contractors of California, Inc. v. 13 California State Council of Carpenters, 459 U.S. 519, 526 (1983). Nor must the court “accept 14 as true allegations that contradict matters properly subject to judicial notice or by exhibit” or 15 those which are “merely conclusory,” require “unwarranted deductions” or “unreasonable 16 inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.) (citation omitted), 17 amended on other grounds, 275 F.3d 1187 (9th Cir. 2001); see also Ileto v. Glock Inc., 349 F.3d 18 1191, 1200 (9th Cir. 2003) (court need not accept as true unreasonable inferences or conclusions 19 of law cast in the form of factual allegations). 20 B. Eleventh Amendment 21 All Defendants seek dismissal of Plaintiff’s claims against them in their official 22 capacities. While the Eleventh Amendment bars a prisoner’s section 1983 claims against state 23 actors sued in their official capacities, Will v. Michigan Dep’t of State Police, 4[91] U.S. 58, 66 24 (1989), it does not bar damage actions against state officials sued in their personal or individual 25 capacities. Hafer v. Melo, 502 U.S. 21, 31 (1991); Pena v. Gardner, 976 F.2d 469, 472-73 (9th 26 Cir. 1992). 27 /// 28 /// 4 11cv0296 IEG (BLM) 1 When a state actor is alleged to have violated both federal and state law and is sued for 2 damages under section 1983 in his individual or personal capacity, there is no Eleventh 3 Amendment bar, even if state law provides for indemnification. Ashker v. California Dep’t of 4 Corrections, 112 F.3d 392, 395 (9th Cir. 1997). Plaintiff brings this § 1983 suit against 5 Defendants in both their individual and official capacities. (See FAC at 2-4.) The Supreme 6 Court has made it clear that a plaintiff can establish personal liability in a section 1983 action 7 simply by showing that each official acted under color of state law in deprivation of a federal 8 right. Hafer, 502 U.S. at 25. 9 Consequently, the Court GRANTS Defendants’ Motion to Dismiss on Eleventh 10 Amendment ground–but only to the extent that Plaintiff seeks damages against them in their 11 official capacity. The Eleventh Amendment imposes no bar to Plaintiff’s damages action against 12 any of the named Defendants for acts or omissions alleged to have been taken in their personal 13 capacities. See Stivers v. Pierce, 71 F.3d 732, 749 (9th Cir. 1995). Eighth Amendment claims2 14 C. 15 Defendants move to dismiss Plaintiff’s Eighth Amendment failure to protect claims, 16 which is the only claim brought by Plaintiff, on the grounds that he has failed to allege sufficient 17 facts to state a claim against any of the named Defendants. Under the Eighth Amendment, 18 prison officials must “take reasonable measures to guarantee the safety of the inmates.” Hudson 19 v. Palmer, 468 U.S. 517, 526-27 (1984); DeShaney v. Winnebago County Dep’t of Social 20 Services, 489 U.S. 189, 199-200 (1989) (“[W]hen the State takes a person into its custody and 21 holds him there against his will, the Constitution imposes upon it a corresponding duty to assume 22 some responsibility for his safety and general well-being.”). In fact, the Supreme Court has 23 specifically held that this duty requires prison officials to protect prisoners from violence at the 24 hands of other prisoners. Farmer v. Brennan, 511 U.S. 825, 833 (1994) (citations omitted). 25 26 27 28 2 Plaintiff purports to bring the identical claims against the Defendants under the Eighth and Fourteenth Amendments. (See FAC at 5-6.) However, “[w]here an amendment ‘provides an explicit textual source of constitutional protection against a particular sort of government behavior,’ it is that Amendment, that ‘must be the guide for analyzing the complaint.’” Picray v. Sealock, 138 F.3d 767, 770 (9th Cir. 1998) (citing Albright v. Oliver, 510 U.S. 266, 273 (1994) (plurality opinion)). Accordingly, the Court will analyze Plaintiff’s failure to protect claims as arising pursuant to the Eighth Amendment. 5 11cv0296 IEG (BLM) 1 “Protecting the safety of prisoners and staff involves difficult choices and evades easy 2 solutions.” Berg v. Kincheloe, 794 F.2d at 460. 3 Thus, to show that a prisoner has been subject to cruel and unusual punishment by an 4 officer’s failure to protect him, he must point to evidence in the record which shows that the 5 alleged deprivation was objectively “sufficiently serious,” i.e., that the conditions he faced posed 6 a “substantial risk of serious harm.” Farmer, 511 U.S. at 834. Second, because “only the 7 unnecessary and wanton infliction of pain implicates the Eighth Amendment,” evidence must 8 exist to show the defendant acted with a “sufficiently culpable state of mind.” Wilson, 501 U.S. 9 at 297 (internal quotation marks, emphasis and citations omitted); see also Hudson, 503 U.S. at 10 5, 8. 11 In a failure to protect case, “that state of mind is one of ‘deliberate indifference’ to inmate 12 health or safety.” Farmer, 511 U.S. at 834. Prison officials display a deliberate indifference to 13 an inmate’s well-being when they know of and consciously disregard an excessive risk of harm 14 to that inmate’s health or safety. Farmer, 511 U.S. at 837. “[T]he official must both be aware 15 of facts from which the inference could be drawn that a substantial risk of serious harm exists, 16 and he must also draw the inference.” Id. Thus, “deliberate indifference” entails something 17 more than mere negligence, but may be satisfied with proof of something less than acts or 18 omissions “for the very purpose of causing harm,” or that a particular official “acted or failed 19 to act believing that harm actually would befall an inmate; it is enough that the official acted or 20 failed to act despite his knowledge of a substantial risk of serious harm.” Farmer, 511 U.S. at 21 842. “Whether a prison official had the requisite knowledge of a substantial risk” may be 22 inferred if the prisoner produces evidence sufficient to show that the risk was “obvious.” Id. 23 In this matter, it is clear that Plaintiff has failed to provide factual allegations to 24 sufficiently allege an Eighth Amendment claim. For example, Plaintiff claims that he informed 25 the ICC committee that he had “enemy concerns” at Donovan. (See FAC at 5.) He fails to 26 identify with any specificity what those “concerns” were. Plaintiff is transferred to Donovan but 27 he alleges that he was attacked by another inmate who was transferred to Donovan after Plaintiff 28 was transferred to Donovan. (Id.) 6 11cv0296 IEG (BLM) 1 Therefore, there are no facts from which anyone could infer that the ICC should have 2 known that an inmate who was not housed at Donovan at the time they made the determination 3 to transfer Plaintiff to Donovan would subject Plaintiff to a “substantial risk of serious harm.” 4 Farmer, 511 U.S. at 842. As for the Defendants whom Plaintiff claims he told about his safety 5 concern when he arrived at Donovan, he does not allege any specific facts as to what these 6 concerns were. Moreover, while Plaintiff claims that Defendant Goff failed to put “inmate 7 McCloud” on his enemy list, the facts in Plaintiff’s First Amended Complaint are not clear 8 whether he was actually attacked by inmate McCloud or a different inmate. 9 It appears that Plaintiff is attempting to remedy the deficiencies in his First Amended 10 Complaint by providing a number of expanded factual allegations and exhibits in his Opposition. 11 However, the Court may not consider materials outside of the pleadings. See Schneider v. Cal. 12 Dep’t of Corrections, 151 F.3d 1194, 1197, n. 1 (9th Cir. 1998). “The focus of any Rule 13 12(b)(6) dismissal . . . is the complaint.” Id. Thus, the Court cannot consider these new factual 14 allegations or exhibits that are not incorporated in the First Amended Complaint. Id. There are 15 simply no factual allegations in Plaintiff’s First Amended Complaint sufficiently alleging that 16 any of the named Defendants displayed deliberate indifference to Plaintiff’s well being by 17 consciously disregarding an excessive risk of harm to Plaintiff’s safety. Farmer, 511 U.S. at 18 837. Thus, Defendants’ Motion to Dismiss Plaintiff’s Eighth Amendment claims pursuant to 19 FED.R.CIV.P. 12(b)(6) is GRANTED. 20 D. Causation 21 Defendants Ridgeway and Watson argue for dismissal on the grounds that there are no 22 factual allegations against them at all in Plaintiff’s First Amended Complaint. A person deprives 23 another “of a constitutional right, within the meaning of section 1983, if he does an affirmative 24 act, participates in another’s affirmative acts, or omits to perform an act which he is legally 25 required to do that causes the deprivation of which [the plaintiff complains].” Johnson v. Duffy, 26 588 F.2d 740, 743 (9th Cir. 1978). “Causation is, of course, a required element of a § 1983 27 claim.” Estate of Brooks v. United States, 197 F.3d 1245, 1248 (9th Cir. 1999). “The inquiry 28 into causation must be individualized and focus on the duties and responsibilities of each 7 11cv0296 IEG (BLM) 1 individual defendant whose acts or omissions are alleged to have caused a constitutional 2 deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (citing Rizzo v. Goode, 423 3 U.S. 362, 370-71 (1976)); Berg v. Kincheloe, 794 F.2d 457, 460 (9th Cir. 1986). Here, the Court 4 finds that Plaintiff has failed to state sufficient facts that would hold Defendants Ridgeway and 5 Watson liable for the alleged deprivation of his constitutional rights. 6 Therefore, Defendants Ridgeway and Watson’s Motion to Dismiss Plaintiff’s First 7 Amended Complaint for failing to state a claim pursuant to FED.R.CIV.P. 12(b)(6) is 8 GRANTED. 9 V. 10 CONCLUSION AND ORDER 11 Based on the foregoing, the Court hereby: 12 1) DISMISSES Defendants California Department of Corrections and Rehabilitation, 13 Richard J. Donovan Correctional Facility, California State Prison - Los Angeles, and Morrero. 14 See King, 814 F.2d at 567. 15 16 17 18 2) GRANTS Defendants’ Motion to Dismiss Plaintiff’s claims for money damages against them in their official capacities with prejudice. 3) GRANTS Defendants’ Motion to Dismiss Plaintiff’s First Amended Complaint pursuant to FED.R.CIV.P. 12(b)(6). 19 IT IS FURTHER ORDERED that: 20 4) Plaintiff is GRANTED forty five (45) days leave from the date this Order is 21 “Filed” in which to file a Second Amended Complaint which cures all the deficiencies of 22 pleading noted above. Plaintiff’s Amended Complaint must be complete in itself without 23 reference to the superseded pleading. See S.D. Cal. Civ. L. R. 15.1. Defendants not named and 24 all claims not re-alleged in the Amended Complaint will be deemed to have been waived. See 25 King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) 26 27 IT IS SO ORDERED. DATED: October 19, 2011 ___________________________________ HON. IRMA E. GONZALEZ, Chief Judge United States District Court 28 8 11cv0296 IEG (BLM)
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