Benn v. Durate et al, No. 3:2011cv01214 - Document 19 (S.D. Cal. 2012)
Court Description: ORDER granting 16 Motion for Partial Dismissal. Defendants Duarte and Garcia shall file a pleading responsive to the Complaint in compliance with Rule 12(a)(4). Signed by Judge Anthony J. Battaglia on 3/7/12. (All non-registered users served via U.S. Mail Service)(cge)
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Benn v. Durate et al Doc. 19 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 10 BRUCE KENDALL BENN, Civil No. 11cv01214-AJB(JMA) 11 Plaintiff, 12 vs. 13 14 15 ORDER GRANTING MOTION FOR PARTIAL DISMISSAL (ECF No. 16) E. DUARTE, et al., Defendants. 16 17 Plaintiff Bruce Kendall Benn ("Benn"), a state prisoner proceeding pro se and in forma pauperis 18 with this 42 U.S.C. § 1983 civil rights action, alleges violations of the Fifth, Eighth, and Fourteenth 19 Amendments arising from an incident on May 19, 2009 at Calipatria State Prison, where he was then 20 confined. Benn alleges correctional officers E. Duarte and E. Garcia used excessive force by spraying 21 oleoresin capsium ("OC") into his cell while investigating a rules infraction report that he and his cell 22 mate possessed a cellular phone. He names as additional defendants five other prison officials who 23 participated in the subsequent administrative review process. He sues each defendant in his individual 24 and official capacities. Benn seeks restoration of credits and points he lost when he was found guilty 25 of the rules infraction, removal of all documents from his file related to the event, a judicial declaration 26 "that the acts and omissions described [in the Complaint] violated Plaintiff's Constitutional and State's 27 rights," a permanent injunction vaguely ordering all the defendants "to desist their transgression of 28 aiding and abet[t]ing any actions known to be a violation of the Department of Corrections governing 1 11cv1214 AJB(JMA) Dockets.Justia.com 1 policy," and monetary damages against each defendant in amounts ranging from $75,000 to $375,000. 2 (ECF No. 1 at 19-20.)1 This matter is before the Court on Defendants' Motion To Dismiss ("Motion") pursuant to 3 4 Federal Rule of Civil Procedure ("Rule") 12(b)(6). (ECF No. 16.) They contend they are immune 5 from suit for money damages in their official capacities, and the complaint fails to state facts sufficient 6 to support a cognizable claim for relief against any of the defendants except Duarte and Garcia. (ECF 7 No. 16-1, 3:18-21.) They argue officers Duarte and Garcia should be required to answer the excessive 8 force claim "under the Eighth Amendment only." (Id., 8:6-8.) They also argue dismissal of all claims 9 against the five defendants other than Duarte and Garcia should be with prejudice because the claims 10 are frivolous and unsupported by law.2 (Id., 8:2-6, citing Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 11 2000) ("Courts are not required to grant leave to amend if a complaint lacks merit entirely").) Benn 12 requested and was granted an extension of time to respond to the Motion. (ECF Nos. 17, 18.) The 13 January 23, 2012 deadline has passed, with no response from Benn before or since. 14 I. COMPLAINT ALLEGATIONS 15 Benn alleges correctional officer Duarte, aided and abetted by officer Garcia, used excessive 16 force in spraying two cans of OC directed at Benn's face and torso through the bars of his secured cell 17 door when they arrived to conduct a search for a cellular phone the inmates were suspected of 18 possessing. 19 Administrative Segregation and lost custody credits after a disciplinary hearing found him guilty of the 20 infraction, and his subsequent administrative grievance appeals were denied. He describes the incident 21 in detail (id. at 14-16), allegations the Court accepts as true for purposes of deciding the Motion. See 22 Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). (ECF No. 1 at 13-15.) No phone was recovered, but Benn was transferred to 23 Benn recites that Officers Duarte and Garcia approached his prison cell on May 19, 2009 to 24 conduct the cell phone search. He contends the officers' reported version of events was "embellished 25 1 26 2 27 28 Page numbers for docketed materials cited herein refer to those electronically imprinted. "Frivolousness" within the meaning of the in forma pauperis standard of 28 U.S.C. § 1915(d) and failure to state a claim under Rule 12(b)(6) are distinct concepts. "[T]he considerable common ground between these standards does not mean that the one invariably encompasses the other." Neitzke v. Williams, 490 U.S. 319, 328, 331 (1989) (holding "that a complaint filed in forma pauperis is not automatically frivolous within the meaning of § 1915(d) because it fails to state a claim"). 2 11cv1214 AJB(JMA) 1 . . . in an effort to justify their Excessive Use of Force." (ECF No. 1 at 14.) The officers reported that 2 after they handcuffed Benn's cell mate, they ordered Benn to come to the cell door to be handcuffed; 3 they reported "Plaintiff places his hand through the food port and then pulled away his hand to retrieve 4 a cell phone from his waistband and threw it inside the toilet and attempted to flush the toilet;" while 5 Benn engaged in that conduct, his cell mate was obstructing the officers' view into the cell; and Duarte 6 discharged one continuous burst of OC spray towards Benn "via the food port." (ECF No. 1 at 14-15.) 7 Benn refutes factual details of the officer's reported version of the incident. Among other things, 8 he represents his cell mate could not have been obstructing the officers' view because Benn was closest 9 to the cell door, as demonstrated by where he received the spray (EFC No. 1 at 15-16), the pipe drains 10 at Calipatria are equipped with baskets to retrieve items inmates attempt to dispose of, and no cell phone 11 was recovered in the cell, yet he and his cell mate were "removed from General population and [were] 12 transferred to Administrative Segregation (Adseg) Housing Unit [even] though there were [sic] no 13 evidence to substantiate the charge of 'Possession of a Cellular Phone' " (id. at 13). He alleges the 14 officers' conduct also violated provisions of the California Code of Regulations, Title 15, forbidding 15 guards from "non-professional" conduct against prisoners and from using "more force than is objectively 16 reasonable." (Id. at 4, 3.) He states that officer Duarte also "[i]n bad faith . . . turn[ed] on the hot water 17 instead of the cold water in the shower to decontaminate Plaintiff from the O.C. spray which was against 18 the institution's governing policy." (Id. at 16). 19 In addition to officers Duarte and Garcia, Benn names five other defendants: J. Kellerman, G. 20 J. Janda, Larry Smalls, R. Manuel, and Matthew Cate. Those individuals were involved in the 21 administrative hearing of the rules violation and Benn's appeals of the result. He alleges each of those 22 defendants, in their official and individual capacities, acting under color of law, violated due process 23 and his right to be free from cruel and unusual punishment guaranteed by the Fifth, Eighth, and 24 Fourteenth Amendments as well as the due process clause of the California Constitution. He accuses 25 each of failing to intervene to rectify Duarte's and Garcia's alleged constitutional violations. In 26 convicting him of the rules violation and denying his grievance at each stage of review, Benn alleges 27 they acted without evidence to substantiate the charge and reached erroneous conclusions on his 28 excessive force claim. (ECF No. 1 at 17-18.) 3 11cv1214 AJB(JMA) 1 In particular, Benn names J. Kellerman, who "in the capacity of supervisor under color of law 2 . . . [,] learn[ed] of the violation of Plaintiff's Due Process rights allotted him by the United States 3 Constitution 5th[,] 8th and 14th Amendment[s]" and the California Constitution, but "ignore[d] and 4 fail[ed] to act to a safety problem of life endangerment." (Id. at 6.) He also alleges Kellerman signed 5 a Rule Violation Report "in and of itself a violation" because it "ignore[d] the policy governing the 6 Rules and Regulations of Excessive Use of Force as specif[ied] in the California Code of Regulations 7 Title 15, section 3268" prohibiting " 'the use of more force than is objectively reasonable,' " and alleges 8 he "should be held respons[i]ble and liable due to negligence of duty as supervisor [and] captain of 9 Facility B." (ECF No. 1 at 5-6.) 10 Benn names G. J. Janda, "Chief Deputy Warden" of the prison, alleging he signed a Rules 11 Violation Report as "Chief Disciplinary Officer" and signed Benn's inmate grievance appeal, denying 12 it at the second level of review. (ECF No. 1 at 7.) He alleges Janda "ignor[ed] Plaintiff's objections to 13 the actions of Defendants E. Duarte and E. Garcia, that purposefully inflicted harm of cruel and unusual 14 punishment" and "ignore[d] Plaintiff's Due Process rights" under the Fifth, Eighth, and Fourteenth 15 Amendments, for which he should "be held culpable due to negligence of duty to intervene . . . ." (Id.) 16 Benn names Larry Small, the "Warden and Chief Executive Officer" at Calipatria, "responsible 17 for the custody, treatment, training and discipline of all inmates." (ECF No. 1 at 8.) Small presided 18 over Benn's Administrative Segregation Unit Committee Hearing and "was made aware of the events 19 . . . . involving Correctional Officers E. Duarte and E. Garcia purposefully inflicting harm of Cruel and 20 Unusual Punishment when spraying Plaintiff with two (2) cans of O.C. spray while still in his cell, 21 posing no imminent threat of harm or injury to either correctional officer[] . . . or to Plaintiff's cell-mate 22 or himself." (Id.) Benn alleges Small should be held liable for his wrongful transfer to administrative 23 segregation after he was found guilty of the rules violation, in purported violation of the Fifth, Eighth, 24 and Fourteenth Amendments, "due to negligence of duty to intervene with the trust and authority of his 25 position" in Duarte's and Garcia's alleged misconduct. (Id. at 8-9.) 26 Benn names R. Manuel, identified as the Department of Corrections Appeals Examiner who 27 reviewed Benn's grievance file but "ignore[d] Plaintiff's objections and proofs presented" regarding the 28 \\ 4 11cv1214 AJB(JMA) 1 unconstitutional "transgressions" of defendants Duarte and Garcia, whereas he should have "intervene[d] 2 with the authority given him by the Department of Corrections." (ECF No. 1 at 9-10.) 3 Finally, Benn names Matthew Cate, Director of the Department of Corrections "legally 4 responsible for the overall operation of the Department and each institution including Calipatria." (ECF 5 No. 1 at 10.) He alleges that he sought relief through the administrative appeal process "to address the 6 matter of Excessive Use of Force by Correctional Officers E. Duarte and E. Garcia," but the Director 7 found Benn's "allegations have been reviewed and evaluated by Administrative staff and an appeal 8 inquiry has been completed at the SLR," then "determined that staff complied with the requirements of 9 CDCR policy, as it relates to the appellant's allegations." (Id. at 11.) Benn contends those findings were 10 erroneous and "negligent to justice" because the Director thereby "denied Plaintiff" his Fifth and 11 Fourteenth Amendment rights, by "agreeing with the Administrative Staff," for which he should "be 12 held liable due to negligence of duty to intervene." (Id. at 11-12.) 13 Benn invokes federal jurisdiction under 42 U.S.C. § 1983 by contending the officers' use of force 14 "purposefully and recklessly inflicted harm of cruel and unusual punishment with callous indifference." 15 (ECF No. 1 at 5.) He characterizes Defendants' conduct as violations of his due process rights and his 16 right to be free from cruel and unusual punishment under the federal and state constitutions. (Id. at 18.) 17 He alleges the "pattern" of conduct by all the administrative or supervisory defendants "aided and 18 abet[ted] the assault and callous indifference demonstrated by Correctional Officers E. Duarte and E. 19 Garcia" and they should be "held liable" on that theory. (Id. at 12.) He asks this Court to "grant the 20 relief that was denied by the Department of Corrections." (Id. at 18.) 21 II. 22 23 DISCUSSION A. Legal Standards 1. Cognizable Prisoner Civil Rights Claims 24 The Civil Rights Act, 42 U.S.C. § 1983 ("Section 1983"), " 'is not itself a source of substantive 25 rights,' but merely provides 'a method for vindicating federal rights elsewhere conferred.' " Graham v. 26 Connor, 490 U.S. 386, 393-94 (1989) (citation omitted). 27 28 [Section 1983] creates a cause of action against a person who, acting under color of state law, deprives another of rights guaranteed under the Constitution. Section 1983 does not create any substantive rights; rather 5 11cv1214 AJB(JMA) 1 it is the vehicle whereby plaintiffs can challenge actions by governmental officials. To prove a case under section 1983, the plaintiff must demonstrate that (1) the action occurred "under color of state law" and (2) the action resulted in the deprivation of a constitutional right or federal statutory right. [Citations.] 2 3 4 Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). 5 "Liability under section 1983 arises only upon a showing of personal participation by the 6 defendant," acting under color of state law, that deprived the plaintiff of a federal right. Taylor v. List, 7 880 F.2d 1040, 1045 (9th Cir. 1989). A person has acted under color of state law when the individual 8 "exercised power ‘possessed by virtue of state law and made possible only because the wrongdoer is 9 clothed with the authority of state law.' " West v. Atkins, 487 U.S. 42, 49-50 (1988), quoting United 10 States v. Classic, 313U.S. 299, 326 (1941). "[G]enerally, a public employee acts under color of state 11 law while engaged in his official capacity or while exercising his responsibilities pursuant to state law." 12 Id. at 50 (citation omitted). The causation inquiry focuses on the duties and responsibilities of each 13 defendant whose acts or omissions are alleged to have caused a constitutional violation. "A person 14 'subjects' another to the deprivation of a constitutional right, within the meaning of section 1983, if he 15 does an affirmative act, participates in another's affirmative acts, or omits to perform an act which he 16 is legally required to do that causes the deprivation of which complaint is made." Johnson v. Duffy, 588 17 F.2d 740, 743 (9th Cir. 1978). 18 The Prison Litigation Reform Act of 1996 ("PLRA") requires procedural and substantive 19 exhaustion of administrative remedies before an inmate can bring a court action "with respect to prison 20 conditions under [42 U.S.C. § 1983], or any Federal law . . . ." 42 U.S.C. § 1997e(a); Porter v. Nussle, 21 534 U.S. 516, 532 (2002) (the requirement is mandatory, "applies to all inmate suits about prison life, 22 whether they involve general circumstances or particular episodes"). An inmate who has properly 23 availed himself of the administrative processes the state makes available has satisfied the exhaustion 24 requirement.3 Butler v. Adams, 397 F.3d 1181, 1183 (9th Cir. 2005); see also Woodford v. Ngo, 548 25 26 27 28 3 California accords its prison inmates the right to appeal administratively any departmental decision, action, condition, or policy they can demonstrate has an adverse effect their welfare, as well as any alleged misconduct by named correctional officers. Cal. Code Regs. tit. 15, § 3084.1; see Woodford v. Ngo, 548 U.S. 81 (2006). The California regulations establish four levels of administrative review: (1) informal resolution; (2) formal written appeal on a CDC 602 inmate appeal form; (3) Second Level appeal to the institution's head or designee; and (4) Third Level appeal to the Director of the California Department of Corrections. See Cal. Code Regs., tit. 15, §§ 3084.1-3084.6. 6 11cv1214 AJB(JMA) 1 U.S. 81, 88-91, 85 (2006) (prisoners must exhaust administrative remedies even where the relief sought 2 (such as monetary damages) cannot be granted by the administrative process). There is no dispute Benn 3 exhausted available remedies through the Director's level before filing suit. (See ECF No. 1 at 17.) 4 However, "when a state prisoner is challenging the very fact or duration of his physical 5 imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a 6 speedier release from that imprisonment, his sole remedy is a writ of habeas corpus." Preiser v. 7 Rodriguez, 411 U.S. 475, 500 (1973). Although a habeas action and a Section 1983 action are not 8 necessarily mutually exclusive, "when prison inmates seek only equitable relief in challenging aspects 9 of [administrative decisions] that, so long as they prevail, could potentially affect the duration of their 10 confinement, such relief is available under the federal habeas statute[;] [w]hether such relief is also 11 available under § 1983 depends on the application of Heck's favorable termination rule . . . ." Docken 12 v. Chase, 393 F.3d 1024, 1031 (9th Cir. 2004) (emphasis in original) (explaining the distinction between 13 those types of judicial intervention in the context of a challenge to parole denial), citing Heck v. 14 Humphrey, 512 U.S. 477, 481 ("[H]abeas corpus is the exclusive remedy for a state prisoner who 15 challenges the fact or duration of confinement and seeks immediate or speedier release, even though 16 such a claim may come within the literal terms of § 1983") (citing Preiser, 411 U.S. at 475); see also 17 Neal v. Shimoda, 131 F.3d 818, 824 (9th Cir. 1997). 18 When a Section 1983 action seeking damages alleges constitutional violations that would 19 necessarily imply the invalidity of the conviction or sentence, the plaintiff must establish that the 20 underlying sentence or conviction has been invalidated on appeal, by a habeas petition, or through some 21 similar proceeding. Heck, 512 U.S. at 483-87 (holding that a Section 1983 claim was not cognizable 22 because the allegations were akin to a malicious prosecution claim, requiring as an element of the claim 23 prior termination of the challenged proceeding in plaintiff's favor). The Supreme Court later clarified 24 that the Heck favorable termination rule applies regardless of the form of remedy sought, if the Section 25 1983 action necessarily implies the invalidity of an underlying conviction or a prison disciplinary 26 judgment. See Edwards v. Balisok, 520 U.S. 641, 646-48 (1997). 27 In Balisok, the Court held that a claim for monetary and declaratory relief challenging the 28 validity of procedures used to deprive a prisoner of good-time credits is not cognizable under Section 7 11cv1214 AJB(JMA) 1 1983 because the alleged defect – in that case, deceit and bias on the part of the decision maker – would 2 result in an automatic reversal of the disciplinary sanction. Balisok, 520 U.S. at 646-48; see McQuillon 3 v. Schwarzenegger, 369 F.3d 1091, 1097-99 (9th Cir. 2004) (same); see also Wilkinson v. Dotson, 544 4 U.S. 74, 81-82 (2005) (explaining that "a state prisoner's § 1983 action is barred (absent prior 5 invalidation) – no matter the relief sought (damages or equitable relief), no matter the target of the 6 prisoner's suit (state conduct leading to conviction or internal prison proceedings) – if success in that 7 action would necessarily demonstrate the invalidity of confinement or its duration"); but see Ramirez 8 v. Galaza, 334 F.3d 850, 858 (9th Cir. 2003) (holding that "the favorable termination rule does not apply 9 to § 1983 suits challenging a disciplinary hearing or administrative sanction that does not affect the 10 11 12 13 14 15 overall length of the prisoner's confinement"). As summarized in Ramirez: The Supreme Court first addressed the intersection between § 1983 and writs of habeas corpus in Preiser v. Rodriguez, holding that "when a state prisoner is challenging the very fact or duration of his physical confinement," and where "the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment," the prisoner's "sole federal remedy is a writ of habeas corpus." 411 U.S. at 500, 93 S.Ct. 1827. Conversely, Preiser concluded that "a § 1983 action is a proper remedy for a state prisoner who is making a constitutional challenge to the conditions of his prison life, but not to the fact or length of his custody." Id. at 499, 93 S.Ct. 1827. 16 17 18 19 20 21 22 The Court revisited Preiser in Heck v. Humphrey, involving a prisoner's § 1983 action alleging that state prosecutors and investigators had engaged in an unlawful investigation and knowingly destroyed exculpatory evidence. 512 U.S. at 478-79, 114 S.Ct. 2364. The prisoner's complaint sought compensatory and punitive damages, but not injunctive relief, or release from custody. Id. at 479, 114 S.Ct. 2364. The Supreme Court explained that a writ of habeas corpus "is the exclusive remedy for a state prisoner who challenges the fact or duration of his confinement . . . even though such a claim may come within the literal terms of § 1983." Id. at 481, 114 S.Ct. 2364 (discussing Preiser, 411 U.S. at 488-90, 93 S.Ct. 1827). The Court then announced a new "favorable termination rule" regarding the validity of § 1983 claims by prisoners: 23 27 [I]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by action whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal ... or called into question by a federal court's issuance of a writ of habeas corpus. . . . 28 Id. at 486-87, 93 S.Ct. 1827. Absent such a showing, "[e]ven a prisoner 24 25 26 8 11cv1214 AJB(JMA) 1 who has fully exhausted available state remedies has no cause of action under § 1983. . .." Id. at 489, 93 S.Ct. 1827. 2 3 4 5 6 7 8 9 10 In Edwards v. Balisok, the Supreme Court extended the favorable termination rule to prison disciplinary actions that implicated the prisoner's term of confinement. In Edwards, a prisoner brought suit under § 1983 challenging the procedures used in a disciplinary hearing. Although the prisoner's conviction resulted in the loss of good-time credits, his suit sought only damages, and an injunction against future violations. 520 U.S. at 643-44, 117 S.Ct. 1584. The Court held that the prisoner could not circumvent the limitation on § 1983 suits imposed by Heck, because the alleged due process defects, if established, "necessarily imply the invalidity of the deprivation of his good-time credits." Id. at 646, 117 S.Ct. 1584. As that result would decrease the length of the prisoner's confinement, the Court concluded that the prisoner's claims were not cognizable under § 1983 until his disciplinary conviction was invalidated. Ramirez, 334 F.3d at 855-56. 11 Nevertheless, none of those three cases "holds that prisoners challenging the conditions of their 12 confinement are automatically barred from bringing suit under § 1983 without first obtaining a writ of 13 habeas corpus." Ramirez, 334 F.3d at 856. "Rather, the applicability of the favorable termination rule 14 turns solely on whether a successful § 1983 action would necessarily render invalid a conviction, 15 sentence, or administrative sanction that affected the length of the prisoner's confinement." Id. 16 2. Dismissal For Failure To State A Claim 17 "The Federal Rules require that averments be simple, concise and direct." McHenry v. Renne, 18 84 F.3d 1172, 1177 (9th Cir. 1996) (internal quotations omitted). "All that is required [by Fed. R. Civ. 19 P. ("Rule") 8] is that the complaint gives ‘the defendant fair notice of what the plaintiff's claim is and 20 the ground upon which it rests.' " Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996) (citation omitted). 21 Nevertheless, "[w]hile legal conclusions can provide the framework of a complaint, they must be 22 supported by factual allegations." Ashcroft v. Iqbal, 556 U.S. 662, --, 129 S.Ct. 1937, 1950 (2009). 23 "[B]are assertions" amounting merely to a "formulaic recitation of the elements" of a constitutional 24 claim are, by their "conclusory nature . . . disentitle[d] to the presumption of truth" by a court deciding 25 a motion to dismiss for failure to state a claim. Id. at 1951, quoting Bell Atlantic Corp. v. Twombly, 26 550 U.S. 544, 555 (2007). "In determining whether a complaint states a claim, all allegations of material 27 fact are taken as true and construed in the light most favorable to the plaintiff." Barnett v. Centoni, 31 28 F.3d 813, 816 (9th Cir. 1994) (per curiam); Cahill, 80 F.3d at 337-38 (same). " 'The issue is not whether 9 11cv1214 AJB(JMA) 1 a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the 2 claims," even if it appears "on the face of the pleadings that a recovery is very remote and 3 unlikely. . . .' " 4 U.S. 232, 236 (1974). Jackson v. Carey, 353 F.3d 750, 755 (9th Cir. 2003), quoting Scheuer v. Rhodes, 416 5 Federal courts hold pro se litigants' pleadings to "less stringent standards than formal 6 pleadings drafted by lawyers," and " '[a] document filed pro se is to be liberally construed . . . ." 7 Erickson v. Pardus, 551 U.S. 89, 94 (2007), quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976). 8 However, the liberal pleading standard "applies only to a plaintiff's factual allegations." Neitzke v. 9 Williams, 490 U.S. 319, 330 n.9 (1989). " '[A] liberal interpretation of a civil rights complaint may not 10 supply essential elements of the claim that were not initially pled.' " Bruns v. Nat’l Credit Union 11 Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (citation omitted). Furthermore, the advantage of liberal 12 construction does not entitle pro se pleadings to "the benefit of every conceivable doubt," but only to 13 the drawing of "reasonable or warranted factual inferences in plaintiff's favor." McKinney v. De Bord, 14 507 F.2d 501, 504 (9th Cir. 1974). "Vague and conclusory allegations of official participation in civil 15 rights violations are not sufficient to withstand a motion to dismiss." Ivey v. Bd. of Regents, 673 F.2d 16 266, 268 (9th Cir. 1982); see Ove v. Gwinn, 264 F.3d 817, 821 (9th Cir. 2001) (same). 17 "[T]he factual allegations that are taken as true must plausibly suggest an entitlement to relief, 18 such that it is not unfair to require the opposing party to be subjected to the expense of discovery and 19 continued litigation." Starr v. Baca, 652 F.3d 1202, 1216 (2011). 20 21 22 23 The standard at this stage of the litigation is not that plaintiff's explanation [of the claim] must be true or even probable. The factual allegations of the complaint need only "plausibly suggest an entitlement to relief." [Iqbal, 129 US.] at 1951. As the Court wrote in Twombly, Rule 8(a) "does not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence" to support the allegations. Twombly, 550 U.S. at 556, 127 S.Ct. 1955 (emphasis added). 24 Starr, 652 F.3d at 1216-17 (holding "the Supreme Court's decision in Iqbal did not alter the substantive 25 requirements for supervisory liability claims in an unconstitutional conditions of confinement case under 26 the Eighth and Fourteenth Amendments where deliberate indifference is alleged," reversing a district 27 court's dismissal of that plaintiff's claim against a county sheriff). 28 10 11cv1214 AJB(JMA) 1 B. Benn Fails To State An Official-Capacity Claim Against Any Defendant 2 Benn sues all the defendants in both their official and individual capacities. "[T]he phrase 'acting 3 in their official capacities' is best understood as a reference to the capacity in which the state officer is 4 sued, not the capacity in which the officer inflicts the alleged injury." Hafer v. Melo, 502 U.S. 21, 26 5 (1991). A defendant has acted under color of state law where he or she has "exercised power ‘possessed 6 by virtue of state law and made possible only because the wrongdoer is clothed with the authority of 7 state law.'" West v. Atkins, 487 U.S. 42, 49 (1988) (citation omitted). Officials administering prisons 8 act under color of state law for 42 U.S.C. § 1983 purposes. Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 9 1988); see Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985) (en banc) (holding a former state 10 prisoner stated a Section 1983 claim for damages for denial of due process and right to be free from 11 cruel and unusual punishment against prison officers who used an incorrect method to compute his 12 release date, prolonging his incarceration by five years, as computed in successful state habeas corpus 13 proceedings concluded before he filed his federal civil rights action). Federal courts reach the issue of 14 a defendant's liability only if both elements essential to a Section 1983 action are present: "(1) the 15 defendants acted under color of law, and (2) their conduct deprived [plaintiff] of a constitutional right." 16 Haygood, 769 F.2d at 1354. 17 Nevertheless, claims under Section 1983 are limited by the Eleventh Amendment. Sovereign 18 immunity "creates a jurisdictional bar to private damages actions against states in federal court." Leer, 19 844 F.2d at 631, citing Quern v. Jordan, 440 U.S. 332, 338-40 (1979). In actions against state agents 20 and state instrumentalities, "when the action is in essence one for the recovery of money from the state, 21 the state is the real, substantial party in interest and is entitled to invoke its sovereign immunity from 22 suit even though individual officials are nominal defendants." Regents of the University of California 23 v. Doe, 519 U.S. 425, 429 (1997) (citation omitted) (punctuation omitted). When official-capacity suits 24 filed against state officials are merely an alternative way of pleading an action against the entity of 25 which the defendants are officers, they are not "persons" amenable to suit under Section 1983. See 26 Hafer, 502 U.S. at 25); Jackson, 353 F.3d at 758. 27 In consideration of that obstacle, in order to maintain an official-capacity suit, the plaintiff must 28 demonstrate that "the entity itself is a 'moving force' behind the deprivation. . . ." Kentucky v. Graham, 11 11cv1214 AJB(JMA) 1 473 U.S. 159, 166 (1985); see Hafer, 502 U.S. at 25. "[T]hus, in an official capacity suit the entity's 2 'policy or custom' must have played a part in the violation of federal law." Graham, 473 U.S. at 166. 3 Benn's allegations, liberally construed, identify no such fact and permit no such inference. Thus, the 4 Eleventh Amendment deprives this Court of jurisdiction over Benn's claims against any of the 5 Defendants in their official capacities. See Quern, 440 U.S. 338-40. 6 Amendment "only prohibits damages actions against the 'official's office' . . . ." Stivers v. Pierce, 71 7 F.3d 732, 749 (9th Cir. 1995). Personal-capacity suits seeking to impose liability on a government 8 official for actions the official takes under color of state law are cognizable in a Section 1983 action. 9 Graham, 473 U.S. 159, 165 (1985). 10 C. However, the Eleventh Benn Fails To State A Cognizable Section 1983 Claim Against Any Defendant Personally Other Than Duarte And Garcia 11 1. Due Process 12 Only Duarte and Garcia personally participated in the OC spray incident Benn characterizes as 13 use of excessive force. He sues all the other named defendants based on their connection to the 14 disciplinary hearing finding him guilty of a rules violation, the imposition of discipline, and his 15 unsuccessful appeals through each stage of the institutional grievance process. In addition to monetary, 16 injunctive, and declaratory relief, he seeks restoration of custody credits and points taken away "due to 17 Administrative finding of Guilt." (ECF No. 1 at 19.) 18 19 20 21 22 23 [A]ll Defendants mention[ed] in this suit is [sic] liable in part, because all defendants were in the position of authority and had the opportunity to intervene when that egregious actions of Correctional Officers E. Duarte and E. Garcia was brought to light after Plaintiff appeal the decision rendered by the Hearing Office of guilt without evidence to substantiate the charge. Without bias and loyalty to the Department Plaintiff appeal to those with the authority in the interest of justice not to let the actions of the defendant stand as precedence, to no avail. Plaintiff believes these actions were wrong and now under this 42 U.S.C. 1983 implore this court in the interest of justice to find in Plaintiff's favor. And grant the relief that was denied by the Department of Corrections. 24 (ECF No. 1, 17-18.) 25 Defendants argue Benn fails to state a valid claim for relief against any defendant except officers 26 Duarte and Garcia. (Mot. P&A, ECF No. 16-1 at 4 (citing, inter alia, Balistreri v. Pacifica Police Dep't, 27 901 F.2d 696, 699 (9th Cir. 1988) (a pleading fails to state a claim upon which relief can be granted 28 12 11cv1214 AJB(JMA) 1 where the plaintiff does not have a cognizable legal theory, or fails to plead sufficient facts to support 2 a cognizable theory).) A prisoner "is not wholly stripped of constitutional protections when he is 3 imprisoned for a crime." 4 Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 454 (1985). Nevertheless, "[p]rison 5 disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a 6 defendant in such proceedings does not apply." Wolff, 418 U.S. at 556. "It is well-established that '[t]he 7 requirements of procedural due process apply only to the deprivation of interests encompassed by the 8 Fourteenth Amendment's protection of liberty and property.' " Jackson, 353 F.3d at 755 (citing, inter 9 alia, Bd. of Regents v. Roth, 408 U.S. 564, 569 (1972)); see also Neal, 131 F.3d at 827. 10 11 12 13 14 15 16 17 18 19 20 Wolff v. McDonnell, 418 U.S. 539, 555 (9th Cir. 1974); see also "The Due Process clause provides prisoners two separate sources of protection against unconstitutional state disciplinary actions." Ramirez, 334 F.3d at 860-61. First, a prisoner may challenge a disciplinary action which deprives or restrains a state-created liberty interest in some "unexpected manner." Sandin v. Conner, 515 U.S. 472, 483-84 (1995). Ramirez's claimed loss of a liberty interest in the processing of his appeals does not satisfy this standard, because inmates lack a separate constitutional entitlement to a specific prison grievance procedure. Mann v. Adams, 855 F.2d 639, 640 (9th Cir.1988). Accordingly, Ramirez's claim lacks the necessary constitutional foundation, and thus does not extend his confinement in an unexpected manner. Second, a prisoner may challenge a state action which does not restrain a protected liberty interest, but which nonetheless imposes some "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin, 515 U.S. at 484; Keenan v. Hall, 83 F.3d 1083, 1088 (9th Cir.1996). If the hardship is sufficiently significant, then the court must determine whether the procedures used to deprive that liberty satisfied Due Process. Sandin, 515 U.S. at 484; Keenan, 83 F.3d at 1089. 21 Ramirez, 334 F.3d at 860-61 (parallel citations omitted). 22 Although Benn alleges defendants Duarte and Garcia "embellished" their rules violation report, 23 he does not allege his ability to present a defense to the rules violation charges was obstructed 24 procedurally at any stage, and he lacks a constitutionally-protected liberty interest in the state-created 25 grievance process. Nor does Benn challenge the conditions of his confinement in administrative 26 segregation as unconstitutional in any way. See Sandin, 515 U.S. at 484-87 (discussing the focus of a 27 liberty interest inquiry applied to punishment of incarcerated prisoners as whether a change occurs in 28 13 11cv1214 AJB(JMA) 1 confinement that imposes an "atypical and significant hardship . . . in relation to the ordinary incidents 2 of prison life"); see Resnick v. Hayes, 213 F.3d 443, 448 (9th Cir. 2000) (affirming a Rule 12(b)(6) 3 dismissal for failure of the prisoner to allege facts from which a constitutionally protected liberty interest 4 could be discerned associated with his confinement segregated housing). 5 consequence Benn complains of is the loss of custody credits he asks this Court to reinstate. (ECF No. 6 1 at 19, requesting "[r]estoration of credit and points taken, due to Administrative finding of Guilt [on 7 evidence] that did not substantiate the charge. . . ."). Thus, in the guise of a federal civil rights action, 8 Benn asks this Court to conduct its own investigation into the validity of the cell phone possession 9 violation incident, make findings in his favor, and reverse the result of the inmate grievance review and 10 Rather, the primary appeals process. 11 Among the particular deprivations the United States Supreme Court has identified as not 12 infringing a prisoner's protected liberty or property interests cognizable as a violation of the Due Process 13 Clause is a loss of good-time credits. See Wolff, 418 U.S. at 557; see also Balisok, 520 U.S. at 646-48 14 (holding that the "evidentiary requirements of due process are satisfied if there is 'some evidence' in the 15 record to support a prison disciplinary decision revoking good time credits," and that the prisoner's 16 "claim for declaratory relief and money damages based on allegations of deceit and bias on the part of 17 the decisionmaker that necessarily imply the invalidity of the punishment imposed, is not cognizable 18 under § 1983") (citations and internal punctuation omitted). The Balisok Court identified and 19 distinguished two sorts of claims that tend to arise from disciplinary hearings, one cognizable under 20 Section 1983, the other not. 21 22 23 24 25 26 There is, however, this critical difference from Heck: Respondent, in his amended complaint, limited his request to damages for depriving him of good-time credits without due process, not for depriving him of good-time credits undeservedly as a substantive matter. That is to say, his claim posited that the procedures were wrong, but not necessarily that the result was. The distinction between these two sorts of claims is clearly established in our case law, as is the plaintiff's entitlement to recover at least nominal damages under § 1983 if he proves the former one without also proving the latter one. Balisok, 520 U.S. at 645 (footnote omitted). 27 Defendants also argue Benn cannot obtain Section 1983 relief because "any due process claim 28 is barred by the favorable termination doctrine." (ECF No. 16-1, 6:16-28, citing Balisok, 520 U.S. 641.) 14 11cv1214 AJB(JMA) 1 "[T]he applicability of the favorable termination rule turns solely on whether a successful § 1983 action 2 would necessarily render invalid a conviction, sentence, or administrative sanction that affected the 3 length of the prisoner's confinement." Ramirez, 334 F.3d at 856. Even when the allegations of a 4 complaint plainly challenge the procedures used to reach a result, "the nature of the challenge to the 5 procedures could [still] be such as necessarily to imply the invalidity of the judgment," foreclosing relief 6 under Section 1983. Balisok, 520 U.S. at 645, quoting the passage from Heck that distinguished Wolff, 7 418 U.S. 539: 8 "In light of the earlier language characterizing the claim as one of 'damages for the deprivation of civil rights,' rather than damages for the deprivation of good-time credits, we think this passage recognized a § 1983 claim for using the wrong procedures, not for reaching the wrong result (i.e., denying good-time credits). Nor is there any indication in the opinion, or any reason to believe, that using the wrong procedures necessarily vitiated the denial of good-time credits. Thus, the claim at issue in Wolff did not call into question the unlawfulness of the plaintiff's continuing confinement." Heck, 512 U.S. at 482-483 (emphasis added and deleted). 9 10 11 12 13 Balisok, 520 U.S. at 645-46 (emphasis in original) (parallel citation omitted) (concluding the prisoner's 14 Section 1983 claim was not cognizable because if successful, it would result in an automatic reversal 15 of the prison disciplinary sanction); see also McQuillon, 369 F.3d at 1097-99 (same, because the claims 16 relied on " 'deceit and bias' on the part of the [parole] decisionmakers, and impl[ied] the invalidity of 17 [the prisoner's] confinement"); Blueford v. Prunty, 108 F.3d 251, 255 (9th Cir. 1997) (affirming 18 dismissal without prejudice of due process claims arising from a prisoner's challenge to the prison's 19 disciplinary proceedings "because they could fairly be construed as a challenge for the loss of good time 20 credit"). 21 Benn challenges the allegedly wrongful result of the disciplinary proceeding and consequent loss 22 of custody credits. He applies directly to this Court for an undoing of the rules violation finding and 23 the punishment imposed, substantiating that the purportedly "undeserved" deprivation of his good time 24 credits has not been previously invalidated elsewhere. Were the Court to decide Benn's due process 25 claims in his favor on the merits, the result would necessarily imply the invalidity of the deprivation of 26 his good-time credits. "[T]he sole remedy in federal court for a prisoner seeking [the] restoration [of 27 lost] good-time credits is a writ of habeas corpus." Balisok, 520 U.S. at 643-44, 646-48; see Heck, 512 28 15 11cv1214 AJB(JMA) 1 U.S. at 486-87 ("We hold that, in order to recover damages for allegedly unconstitutional conviction or 2 imprisonment, or for other harm caused by action whose unlawfulness would render a conviction or 3 sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been [overturned]") 4 (emphasis added). Benn apparently cannot do so at this time. Accordingly, the case may not proceed 5 under Section 1983 for due process violations associated with the administrative review and result. 6 2. Cruel And Unusual Punishment 7 Benn's states: "The subject of this Law suit is 'excessive use of force' . . . ." (ECF No. 1 at 13.) 8 "A prisoner can state a section 1983 claim against prison personnel under the eighth amendment by 9 establishing that the prison personnel acted with 'deliberate indifference' in creating the condition that 10 violates the eighth amendment." Leer, 844 F.2d at 633 (affirming summary judgment for prison 11 officials in an Eighth Amendment challenge). The inquiry focuses "on whether the individual defendant 12 was in a position to take steps to avert the . . . incident, but failed to do so intentionally or with 13 deliberate indifference." Id. Here, the OC spraying incident involved no named defendant other than 14 Duarte and Garcia, and Benn's "causation" allegations against all the other named defendants is limited 15 to his contentions they should have prevented or corrected the disciplinary result, not that any of those 16 "official[s] knew of a threat to the inmate's safety, yet failed to take action" to prevent the underlying 17 harm. Id. Defendants contend "Benn fails to state a claim for relief against Captain Kellerman, Chief 18 Deputy Warden Janda, Warden Small, or Director Cate" for the Eighth Amendment violation he alleges 19 because, as to those defendants, he presents only allegations predicated on respondeat superior liability, 20 negligent supervision, or their involvement in the inmate grievance system, a process not protected by 21 any substantive constitutional right. (ECF No. 16-1, 5:18-6:11. 22 Plaintiffs retain the obligation to present a Complaint containing "sufficient factual matter, 23 accepted as true, to 'state a claim for relief that is plausible on its face.' " Iqbal, 129 S.CT. at 1949, 24 quoting Twombly, 550 U.S. at 570. With respect to his deliberate indifference claim against all the 25 named defendants other than Duarte and Garcia, Benn supports the cause of action by no more than 26 "bald" or "conclusory" allegations not entitled to a presumption of truth. Iqbal, 129 S.Ct. at 1951. He 27 alleges no facts from which liability for Duarte or Garcia's allegedly unconstitutional use of force can 28 be imputed to personal participation by any of the other defendants. His legal conclusions fail to link 16 11cv1214 AJB(JMA) 1 any of the named defendants personally, other than Duarte and Garcia, to the use of force conduct giving 2 rise to this litigation. Accordingly, the Motion to dismiss all the named defendants other than Duarte 3 and Garcia is GRANTED. D. 4 Benn States Only A Cognizable Eighth Amendment Claim Against Duarte And Garcia 5 Benn asserts his federal claims for use of excessive force against Duarte and Garcia under the 6 Fifth, Eighth, and Fourteenth Amendments. Defendants do not dispute that the Complaint allegations 7 state a Section 1983 claim against Duarte and Garcia as an Eighth Amendment violation adequately to 8 survive Rule 12(b)(6) dismissal. They move to dismiss all but that ground for relief, contending his 9 excessive force claim "should not proceed under the Fifth or Fourteenth Amendments." (ECF No. 16-1 10 at 7.) 11 As discussed above, the procedural guarantees of the Fifth and Fourteenth Amendments' Due 12 Process Clauses apply only when a constitutionally protected liberty or property interest is at stake, 13 unlike in this case. See Jackson, 353 F.3d at 755 (9th Cir. 2003). Moreover, Defendants argue: 14 "Where an explicit textual source of constitutional protection against alleged government misconduct 15 exists, it is that source – and not other amendments encompassing a broad right of due process – that 16 is the appropriate source of the constitution's protection." (ECF No. 16-1 at 7, citing Graham, 490 U.S. 17 at 395 for the proposition that when a claim clearly falls within the parameters of a specific 18 constitutional amendment (in that case, the Fourth Amendment prohibition against unreasonable 19 searches and seizures), a reviewing court declines to consider a constitutional violation under the 20 Fourteenth Amendment.) 21 To the extent Benn intends to allege that his constitutional right to be free from the use of 22 excessive force derives not only from the Eighth Amendment but also from the Due Process Clause, and 23 seeks relief for the same conduct under both those theories, the United States Supreme Court has 24 determined in this context the Due Process Clause serves no purpose as an alternative basis for relief. 25 "We think the Eighth Amendment, which is specifically concerned with the unnecessary and wanton 26 infliction of pain in penal institutions, serves as the primary source of substantive protection to 27 convicted prisoners in cases such as this one, where the deliberate use of force is challenged as 28 17 11cv1214 AJB(JMA) 1 excessive and unjustified." Whitley v. Albers, 475 U.S. 312, 327 (1986) (holding as to prison inmates, 2 "the Due Process Clause affords [them] no greater protection than does the Cruel and Unusual 3 Punishment Clause"); see Hudson v. McMillian, 503 U.S. 1, 6-7 (1992) ("[W]e hold that whenever 4 prison officials stand accused of using excessive physical force in violation of the Cruel and Unusual 5 Punishments Clause, the core judicial inquiry is that set out in Whitley: whether force was applied in 6 a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm"). 7 Thus, Eighth Amendment jurisprudence provides the appropriate and exclusive standards for resolving 8 Benn's use of force claims. Accordingly, his Due Process claims against Duarte and Garcia are 9 DISMISSED, and he may proceed against them only under the Eighth Amendment. 10 E. 11 If it appears the plaintiff could correct pleading deficiencies, "Federal Rule of Civil Procedure 12 15(a) provides that a trial court shall grant leave to amend freely 'when justice so requires. ' " Watison, 13 2012 WL 432296 at **5, 7 (C.A. 9 (Cal.) Feb. 13, 2012) (affirming a district court's dismissal with 14 prejudice of a prisoner's Eighth Amendment claim against one correctional officer, but reversing 15 dismissal of First Amendment retaliation claims without leave to amend). "Unless it is absolutely clear 16 that no amendment can cure the defect . . . , a pro se litigant is entitled to notice of the complaint's 17 deficiencies and an opportunity to amend prior to dismissal of the action." Lucas v. Dep't of Corr., 66 18 F.3d 245, 248 (9th Cir. 1995) (per curiam); see also Lopez, 203 F.3d at 1126, 1130-31 ("a district court 19 should grant leave to amend even if no request to amend the pleading was made, unless it determines 20 that the pleading could not possibly be cured by the allegation of other facts" (internal quotation and 21 citation omitted). Leave To Amend 22 Benn's Complaint alleges considerable factual detail. His Eighth Amendment claim clearly 23 arises out of a single cell search for contraband assigned to officers Duarte and Garcia. He carefully 24 describes his own movements, those of his cell mate, and the officers' conduct from the moment they 25 approached the cell. His "concrete allegations" are supported by specific facts adequate to state an 26 Eighth Amendment claim. Twombly, 550 U.S. at 562-63; Iqbal, 129 S.Ct. at 1951. However, he 27 cannot also present the same claim as a due process violation under the Fifth and Fourteenth 28 Amendments. Whitley, 475 U.S. at 327. As he cannot cure the pleading to state a cognizable claim 18 11cv1214 AJB(JMA) 1 against Duarte and Garcia under the Fifth and Fourteenth Amendments, leave to amend the Complaint 2 with respect to them for that purpose is DENIED, with prejudice. 3 Concerning the other named defendants, for the reasons discussed above, Benn cannot proceed 4 with a Section 1983 civil rights complaint associated with the allegedly wrongful deprivation of custody 5 credits unless he demonstrates he has satisfied certain mandatory prerequisites. See Preiser, 411 U.S. 6 at Balilsok, 520 U.S. at 645; Heck, 512 U.S. at 486-87; Ramirez, 334 F.3d at 855-56. As he has not 7 done so, and based on the nature of the relief he seeks cannot do so at this time, dismissal of those 8 defendants is appropriate, and leave to amend the Complaint is DENIED, without prejudice. 9 III. CONCLUSION AND ORDER 10 For all the foregoing reasons, IT IS HEREBY ORDERED: 11 1. 12 13 14 15 Defendants' Motion To Dismiss Benn's official-capacity claims against all the named defendants is GRANTED. 2. Defendants' Motion To Dismiss defendants Kellerman, Janda, Smalls, Manuel, and Cate for failure to state a cognizable civil rights claim against any of them is GRANTED, without prejudice. 3. Defendants' Motion To Dismiss Benn's Fifth and Fourteenth Amendment due process 16 claims against officers Duarte and Garcia is GRANTED, with prejudice. Accordingly, this action may 17 proceed only as an Eighth Amendment challenge to the conduct of defendants Duarte and Garcia in their 18 personal capacities. 19 4. Defendants Duarte and Garcia shall file a pleading responsive to the Complaint in 20 compliance with Rule 12(a)(4). 21 IT IS SO ORDERED. 22 23 DATED: March 7, 2012 24 25 Hon. Anthony J. Battaglia U.S. District Judge 26 27 28 19 11cv1214 AJB(JMA)
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