Thomas v. Gore et al, No. 3:2018cv01929 - Document 20 (S.D. Cal. 2019)
Court Description: ORDER GRANTING DEFENDANTS DEPUTY CRISTIAN DAVILA AND KATRINA SAN NICOLAS MOTION TO DISMISS re 14 Motion to Dismiss for Failure to State a Claim. Signed by Judge Gonzalo P. Curiel on 3/18/2019. (All non-registered users served via U.S. Mail Service)(sjm)
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 DAMAREE RAYSHAWN THOMAS, Plaintiff, 11 12 v. 13 WILLIAM D. GORE, “Chief” Sheriff Deputy; CDAVILSH DAVILA, San Diego Sheriff Deputy; YPARKXSH PARK, San Diego Sheriff Deputy; KSANNISH SANNICOLAS, San Diego Sheriff Deputy, 14 15 16 Case No.: 3:18-CV-1929-GPC-MDD 17 ORDER GRANTING DEFENDANTS DEPUTY CRISTIAN DAVILA AND KATRINA SAN NICOLAS’ MOTION TO DISMISS [DKT. NO. 14.] Defendants. 18 19 Before the Court is a motion to dismiss the complaint for failure to state a claim 20 pursuant to Federal Rule of Civil Procedure 12(b)(6) brought by Defendant Sheriff’s 21 Deputy Cristian Davila1 (“Deputy Davila”) and Defendant Sheriff’s Deputy Katrina San 22 Nicolas2 (“Deputy San Nicolas”) (Dkt. No. 14.) Plaintiff did not file an opposition. For 23 the reasons below, the Court GRANTS Defendant Deputy Davila’s motion to dismiss as 24 to Count 1 and Defendant Deputy San Nicolas as to Count 3. 25 26 1 27 28 2 Defendant Cristian Davila is erroneously sued as Cdavilsh Davila. Defendant Katrina San Nicolas is erroneously sued as Ksannish Sannicolas. 1 3:18-CV-1929-GPC-MDD 1 I. BACKGROUND 2 On August 17, 2018, Plaintiff Damaree Rayshawn Thomas (“Plaintiff”), an inmate 3 proceeding pro per, filed a complaint alleging claims for constitutional violations under 42 4 U.S.C. § 1983 while he was housed at San Diego Central Jail and the Vista Detention 5 Center. (Dkt. No. 1, Compl.) Defendants Cristian Davila and Katrina San Nicolas are 6 Sheriff Deputies with the San Diego County Sheriff’s Department. (Dkt. No. 1 at 23.) 7 In Count 1, Plaintiff alleges that on April 15, 2018 he was assaulted and attacked by 8 another inmate. (Id. at 3.) The inmate hit Plaintiff in the face causing him injury to his 9 front tooth and lip. (Id.) Plaintiff claims Deputy Davila refused to take him to medical for 10 treatment despite repeated requests. (Id.) Instead, he was read his rights and subject to 11 disciplinary action resulting in “ten days of 24 hour lock down.” (Id.) 12 In Count 3, Plaintiff claims, on July 9, 2018, he requested staff to place him in a cell 13 by himself because he was not getting along with his cellmate. (Id. at 5.) Instead, he was 14 handcuffed and escorted to a disciplinary cell by Deputy San Nicolas. (Id.) When Plaintiff 15 stated he was suicidal, he was escorted to medical where he claims he was not seen by 16 medical staff. (Id.) Plaintiff also claims he was escorted back to his disciplinary cell in 17 handcuffs where he was then sexually harassed by Deputy San Nicolas. (Id.) Plaintiff 18 alleges Deputy Sannicolas made inappropriate comments to him. (Id.) Because he was 19 still handcuffed, Plaintiff began to yell he was suicidal and claims he could not use the 20 medical button in his cell and was unable to use the bathroom. (Id.) He alleges that during 21 this period he soiled himself. (Id.) As of July 14, 2018, Plaintiff claims he was still in a 22 disciplinary cell, subjected to 24-hour lockdown, not allowed to use the recreation yard, 23 and was prevented from reading books even for legal purposes and using the phone. (Id.) 24 Plaintiff seeks damages in the amount of $1,000,000 and punitive damages in the amount 25 of $1,000,000. (Id. at 7.) 26 27 28 3 Page numbers are based on the CM/ECF pagination. 2 3:18-CV-1929-GPC-MDD 1 2 On January, 24, 2019, Deputies Davila and San Nicolas filed a motion to dismiss the complaint. (Dkt. No. 14.) To date, Plaintiff has not filed an opposition. 3 Discussion Legal Standard under Federal Rule of Civil Procedure 12(b)(6) 4 A. 5 A motion to dismiss under Federal Rule of Civil Procedure (“Rule”) 12(b)(6) tests 6 the sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). 7 Dismissal is warranted under Rule 12(b)(6) where the complaint lacks a cognizable legal 8 theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984); see 9 Neitzke v. Williams, 490 U.S. 319, 326 (1989) (“Rule 12(b)(6) authorizes a court to 10 dismiss a claim on the basis of a dispositive issue of law.”). Alternatively, a complaint 11 may be dismissed where it presents a cognizable legal theory yet fails to plead essential 12 facts under that theory. Robertson, 749 F.2d at 534. While a plaintiff need not give 13 “detailed factual allegations,” a plaintiff must plead sufficient facts that, if true, “raise a 14 right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 15 545 (2007). A claim is facially plausible when the factual allegations permit “the court to 16 draw the reasonable inference that the defendant is liable for the misconduct alleged.” 17 Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 547). In 18 other words, “the non-conclusory ‘factual content,’ and reasonable inferences from that 19 content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. 20 U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (citation omitted). 21 While a pro se complaint is to be read liberally, such litigants are not exempt from 22 the procedural rules of this Court. See Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9th 23 Cir. 2007); Barrett v. Belleque, 544 F.3d 1060, 1061-62 (9th Cir. 2008). Rather, pro se 24 complaints may be dismissed for failure to state a claim where “it appears beyond doubt 25 that the plaintiff can prove no set of facts in support of his claim which would entitle him 26 to relief.” Haines v. Kerner, 404 U.S. 519, 520-21 (1972); see also Estelle v. Gamble, 27 429 U.S. 97, 106 (1976) (finding a prisoner’s pro se complaint was insufficient to state a 28 3 3:18-CV-1929-GPC-MDD 1 cause of action). Therefore, this Court need not accept as “true allegations that are 2 merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” Sprewell 3 v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001) (citation omitted), amended 4 on other grounds, 275 F.3d 1187 (9th Cir. 2001). 5 Where a motion to dismiss is granted, “leave to amend should be granted ‘unless 6 the court determines that the allegation of other facts consistent with the challenged 7 pleading could not possibly cure the deficiency.’” DeSoto v. Yellow Freight Sys., Inc., 8 957 F.2d 655, 658 (9th Cir. 1992) (quoting Schreiber Distrib. Co. v. Serv-Well Furniture 9 Co., 806 F.2d 1393, 1401 (9th Cir. 1986)). In other words, where leave to amend would 10 be futile, the Court may deny leave to amend. See Desoto, 957 F.2d at 658; Schreiber, 11 806 F.2d at 1401. Plaintiffs’ Failure to Oppose Defendants’ Motion to Dismiss 12 B. 13 Southern District of California Local Civil Rule 7.1 states that “[i]f an opposing 14 party fails to file the papers in the manner required by Civil Local Rule 7.1(e)(2), that 15 failure may constitute a consent to the granting of a motion or other required for ruling by 16 the court.” Civ. L. Rule 7.1(f)(3)(c). The time for filing opposition to a motion, set forth 17 in Civil Local Rule 7.1(e)(2), is no later than fourteen (14) calendar days prior to the 18 noticed hearing. Civ. L. Rule 7.1(e)(2). 19 Although the Court construes pleadings filed by pro se litigants liberally, these 20 litigants are still bound by the rules of procedure. King v. Atiyeh, 814 F.2d 565, 567 (9th 21 Cir. 1987). Here, this Court issued an order setting a briefing schedule on January 25, 22 2019, giving Plaintiff until February 22, 2019 to file an opposition to Defendants’ motion 23 to dismiss. (Dkt. No. 15.) Plaintiff has failed to file any opposition, timely or otherwise. 24 Thus, acting pursuant to Local Rule 7.1, this Court is empowered to grant 25 defendant’s unopposed motion to dismiss, as Plaintiff has effectively consented. See 26 Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (per curiam) (affirming the district 27 court’s grant of an unopposed motion to dismiss under local rule by deeming a pro se 28 4 3:18-CV-1929-GPC-MDD 1 litigant’s failure to oppose as consent to granting the motion). Despite Plaintiff’s failure to 2 oppose the motion to dismiss, the Court, nonetheless, considers Defendants’ motion. 3 C. 4 In Count 1 of the complaint, Plaintiff alleges that on April 15, 2018 he was 5 assaulted and attacked by another inmate “who had priors of sudden assaults.” (Dkt. No. 6 1, Compl. at 3.) The inmate hit Plaintiff in the face causing him to lose consciousness 7 and he sustained injury to his front tooth and lip. (Id.) Plaintiff claims Deputy Davila 8 failed to protect him from being assaulted by another inmate and refused to take Plaintiff 9 to medical for treatment. (Dkt. No. 1, Compl. at 2-3.) Defendant Deputy Cristian Davila 10 In his motion, Deputy Davila argues that the complaint should be dismissed against 11 him because there are no factual allegations to support an Eighth Amendment violation of 12 a failure to protect and failure to summon medical care. 13 To state a claim under Section 1983 for a violation of Eighth Amendment rights, a 14 plaintiff must allege: (1) that a right secured by the Constitution or laws of the United 15 States was violated and (2) that the alleged violation was committed by a person acting 16 under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); McDade v. West, 17 223 F.3d 1135, 1139 (9th Cir. 2000). 18 To establish a violation of a prison official’s duty to take reasonable steps to protect 19 inmates from physical abuse, the prisoner must establish that prison officials were 20 “deliberately indifferen[t]” to serious threats to the inmate’s safety. Farmer v. Brennan, 21 511 U.S. 825, 833–34 (1994). The deprivation alleged must be “objectively, ‘sufficiently 22 serious’” and the prison official must be subjectively “deliberately indifferent” to the 23 inmate’s safety. Id. at 834. To demonstrate “deliberate indifference” to a serious threat 24 to the inmate’s safety, the prisoner must show that “the official [knew] of and 25 disregard[ed] an excessive risk to inmate . . . safety.” Id. at 837. 26 27 28 Here, Plaintiff alleges that the inmate he was conversing with had a history of prior assaults when he was attacked but has failed to provide any factual allegations that 5 3:18-CV-1929-GPC-MDD 1 Deputy Davila knew the other inmate had a prior history of sudden violence and 2 disregarded that risk, and that there was a serious threat or an excessive and obvious risk 3 to Plaintiff’s safety. Accordingly, the Court GRANTS Defendant Davila’s motion to 4 dismiss the claim that Deputy Davila failed to protect him. 5 In Count 1, Plaintiff also asserts a claim against Deputy Davila for refusing to 6 summon medical care after he was assaulted. Deputy Davila argues Plaintiff failed to 7 allege he was deliberately indifferent to Plaintiff’s serious medical needs because his 8 injury was not serious. (Dkt. No. 14 at 6.) 9 “[D]eliberate indifference to a prisoner’s serious illness or injury states a cause of 10 action under § 1983.” Estelle v. Gamble, 429 U.S. 97, 105 (1976); see also Jett v. 11 Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). In the Ninth Circuit, the test for deliberate 12 indifference consists of two parts. McGuckin v. Smith, 974 F.2d 1050 (9th Cir. 1991), 13 overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir.1997) 14 (en banc). First, the plaintiff must show a “serious medical need” exists if “failure to 15 treat a prisoner's condition could result in further significant injury or the ‘unnecessary 16 and wanton infliction of pain.’ ” 974 F.2d at 1059 (quoting Estelle, 429 U.S. at 104). 17 Second, the plaintiff must show the defendant's response to the need was deliberately 18 indifferent. Id. at 1060. 19 Here, Plaintiff claims that he was struck in the face and knocked out unconscious 20 by another inmate. Allegedly, the assault also caused injury to Plaintiff’s tooth and the 21 inside of his mouth. The complaint is absent any facts that show the Plaintiff was in a 22 serious medical need, such that, his failure to receive medical treatment resulted in 23 further injury or additional and unnecessary pain. As to the allegations that Defendant 24 Davila’s response was deliberately indifferent, Plaintiff has not provided any facts that 25 support his claim. 26 27 28 6 3:18-CV-1929-GPC-MDD 1 In sum, Plaintiff fails to state a claim for an Eighth Amendment violation under 42 2 U.S.C. § 1983, and therefore, the Court GRANTS Defendant Davila’s motion to dismiss 3 Count 1 for failing to state a claim. 4 D. 5 On Count 3, Plaintiff alleges, on July 9, 2018, he was subjected to cruel and Defendant Deputy Katrina San Nicolas 6 unusual punishment, sexually harassed and retaliated against by Defendant Deputy San 7 Nicolas. (Dkt. No. 1, Compl. at 5.) He claims that when he asked to be placed in a cell 8 by himself because he did not get along with his cell mate, he was handcuffed and 9 escorted to a disciplinary cell by Deputy San Nicolas. (Id.) When Plaintiff said he was 10 suicidal, Deputy San Nicolas took him to medical where he was not seen by medical staff 11 and was pushed back into his disciplinary cell with handcuffs. (Id.) Then while 12 handcuffed in the disciplinary cell, Deputy San Nicolas sexually harassed Plaintiff by 13 stating “don’t you have a big enough ass, stop acting like one.” (Id.) Plaintiff also 14 alleges that due to his being handcuffed for about thirty minutes, he was denied access to 15 his medical button and unable to use the restroom so he soiled himself. (Id.) He claims 16 as of July 14, 2018, he was still in disciplinary cell with a 24 hour lock down with no 17 privileges. (Id.) 18 Defendant San Nicolas argues Plaintiff failed to state a claim under the Eighth 19 Amendment for sexual harassment. However, Defendant has not stated whether Plaintiff 20 is a pretrial detainee, subject to the “objective deliberate indifference standard” under the 21 Fourteenth Amendment, or a convicted prisoner subject to the “subjective deliberate 22 indifference standard” under the Eighth Amendment. Kingsley v. Hendrickson, 135 S. Ct. 23 2466, 2472-73 (2015); Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1068-71 (9th Cir. 24 2016) (en banc), cert denied, Los Angeles Cnty. v. Castro, 137 S. Ct. 831 (2017) 25 (“Inmates who sue prison officials for injuries suffered while in custody may do so under 26 the Eighth Amendment’s Cruel and Unusual Punishment Clause, or if not yet convicted, 27 under the Fourteenth Amendment’s Due Process Clause.”). 28 7 3:18-CV-1929-GPC-MDD 1 In its screening order, the Court presumed, for purposes of screening only, that 2 Plaintiff was a pretrial detainee at San Diego Central Jail and Vista Detention Facility and 3 applied the Fourteenth Amendment standard. (Dkt. No. 3 at 6.) Yet, Defendant has not 4 clarified the status of Plaintiff. 5 To the extent Defendant San Nicolas moves to dismiss based under the Eighth 6 Amendment, the motion shall be granted. The Ninth Circuit has held that “verbal 7 harassment does not generally violate the Eighth Amendment.” Keenan v. Hall, 83 F.3d 8 1083, 1092 (9th Cir. 1996) (granting summary judgment based on verbal harassment by 9 the defendant that denied the plaintiff “peace of mind.”); Austin v. Terhune, 367 F.3d 10 1167, 1172-72 (9th Cir. 2004) (claim of cruel and unusual punishment under Eighth 11 Amendment based on verbal sexual harassment, not accompanied by physical touching, 12 did not constitute constitutional violation). Here, Plaintiff alleges Deputy San Nicolas 13 made one sexual comment without any allegations of touching. Therefore, the Court 14 GRANTS Defendant San Nicolas’ motion to dismiss the sexual harassment claim in 15 Count 3 based on the Eighth Amendment.4 16 Defendant San Nicolas also argues that Count 3 fails to allege any facts that 17 Deputy San Nicolas subjected him to cruel and unusual punishment under the Eighth 18 Amendment. To the extent Plaintiff was a convicted prisoner subject to the Eighth 19 Amendment, Defendant further argues that the complaint is absent of any claims of pain, 20 serious psychological damage, or that Deputy San Nicolas’ behavior was unusually 21 disturbing or calculated in such a way to bring damage to Plaintiff. 22 23 24 25 26 27 28 4 In the event that Plaintiff files an amended complaint, and Defendant San Nicolas files another motion to dismiss, she shall inform the Court whether Plaintiff was a pretrial detainee or convicted prisoner during the time of the alleged incident. 8 3:18-CV-1929-GPC-MDD 1 To state a claim for deliberate indifference to a prisoner's safety, the prisoner must 2 show that the prison official knew of an objectively serious risk of harm and acted with 3 deliberate indifference to the risk. See Famer, 511 U.S. at 834, 847. Deliberate 4 indifference is a difficult standard to meet, as the alleged deprivation must be 5 “sufficiently serious” and “pose a substantial risk of serious harm.” Id. at 834. 6 Here, Plaintiff alleges Deputy San Nicolas escorted Plaintiff, in handcuffs, to a 7 disciplinary cell and when he said he was suicidal took him to medical and then he was 8 taken back to a disciplinary cell. (Dkt. No. 1, Compl. at 5.) The complaint is absent of 9 any factual support that the alleged deprivation was sufficiently serious or that Deputy San 10 Nicolas had the requisite state of mind of deliberate indifference. Thus, the Court 11 GRANTS Deputy San Nicolas’ motion to dismiss the cruel and unusual punishment claim 12 in Count 3. 13 Finally, Defendant Deputy San Nicolas argues that Plaintiff has not alleged any 14 facts to support a retaliation claim. Prisoners have a First Amendment right to file prison 15 grievances. Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009). For a viable claim of 16 First Amendment retaliation in the prison context, a Plaintiff must factually allege “(1) an 17 assertion that a state actor took some adverse action against an inmate (2) because of (3) 18 that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of 19 his First Amendment rights, and (5) the action did not reasonably advance a legitimate 20 correctional goal.” Id. 21 Here, the complaint does not contain any factual allegations that show Deputy San 22 Nicolas took any adverse action against Plaintiff because of his grievance claims. 23 Furthermore, Plaintiff fails to provide any factual allegations as to how the actions by 24 Deputy San Nicolas chilled his First Amendment rights and that the action did not 25 reasonably advance a legitimate correctional goal. Therefore, Plaintiff’s fails to state a 26 claim for retaliation by Defendant San Nicolas and the Court GRANTS Defendant San 27 Nicolas’ motion to dismiss the retaliation claim contained in Count 3. 28 9 3:18-CV-1929-GPC-MDD 1 E. 2 Leave to amend, whether or not requested by the plaintiff, should be granted unless Leave to Amend 3 amendment would be futile. Schreiber Distrib. Co., 806 F.2d at 1401. Here, the Court 4 concludes that it would not be futile to allow Plaintiff leave to amend the complaint. 5 Accordingly, the Court GRANTS Plaintiff leave to file an amended complaint. 6 CONCLUSION 7 For the reasons set forth above, the Court GRANTS Defendant Deputies Cristian 8 Davila and Katrina San Nicolas’ motion to dismiss Counts 1 and 3 of the complaint with 9 leave to amend. Plaintiff may file an amended complaint on or before April 15, 2019. If 10 Plaintiff fails to file an amended complaint by the deadline, the case will remain closed as 11 to Defendants Deputy Davila and Deputy San Nicolas. 12 On February 26, 2019, the Court granted Defendants Sheriff William Gore and 13 Deputy Young Park’s motion to dismiss with leave to amend directing Plaintiff to file an 14 amended complaint by March 22, 2019. (Dkt. No. 18.) Because the Court GRANTS 15 Plaintiff until April 15, 2019 to file an amended complaint against Deputies Cristian 16 Davila and Katrina San Nicolas, the Court also GRANTS Plaintiff until April 15, 2019 to 17 file an amended complaint against Sheriff William Gore and Deputy Young Park. 18 19 IT IS SO ORDERED. Dated: March 18, 2019 20 21 22 23 24 25 26 27 28 10 3:18-CV-1929-GPC-MDD
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