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October 17, 2005.

JOSEPH NICHOLS, CDC #H-87217, Plaintiff,
SERGEANT LAIRD, et al., Defendants.

The opinion of the court was delivered by: JAMES LORENZ, District Judge

Plaintiff, an inmate currently incarcerated at Salinas Valley State Prison in Soledad, California, and proceeding pro se, first filed this civil rights action pursuant to 42 U.S.C. § 1983 on October 14, 2004. Plaintiff also prepaid the initial civil filing fee rather than proceeding in forma pauperis. On April 18, 2005, Plaintiff filed a First Amended Complaint ("FAC"). Defendants filed a Motion to Dismiss Plaintiff's First Amended Complaint pursuant to FED.R.CIV.P. 12(b)(6) on July 8, 2005.

While this case was randomly referred upon filing to the Honorable Magistrate Judge Ruben B. Brooks pursuant to 28 U.S.C. § 636(b)(1)(B) for disposition, the Court has determined that a Report and Recommendation regarding the disposition of Defendants' pending Motion to Dismiss is unnecessary. See S.D. CAL. CIVLR 72.3(a) (assigning "[a]ll of the District's civil § 1983 prisoner caseload" to the District's magistrate judges for disposition either upon consent of all parties, or in absence of unanimous written consent, "upon submission of proposed findings and recommendations to the district judge, unless the district judge orders otherwise.").

  I. Factual Background

  On March 6, 2001, Plaintiff was incarcerated at the Richard J. Donovan Correctional Facility ("Donovan") awaiting transfer to Salinas Valley State Prison ("Salinas") See FAC at 3. Plaintiff suffers from mental health problems and sought to remain at Donovan where he believed that he would receive adequate mental health care. Id. However, when he was informed that the transfer to Salinas was imminent, Plaintiff climbed onto the guard rail with the intention of jumping from the top tier because he was hearing voices in his head telling him to jump. Id. Correctional Officer Renteria yelled to Plaintiff to stop him from jumping. Id.

  Before Plaintiff jumped from the top tier, he saw that Defendant Laird was approaching. Plaintiff alleges that he was fearful of Defendant Laird due to past harassment and mistreatment of his mental health issues by Defendant Laird. Id. Because Plaintiff believed that Defendant Laird would harm him and he heard the voices in his head, Plaintiff jumped off the tier. Id. at 3-4. Plaintiff also claims that Defendant Clark urged him to jump. Id. at 4.

  After Plaintiff jumped, he alleges Defendant Laird sprayed him with "OC" (pepper) spray. Id. Defendant Laird then instructed Plaintiff to stand up and told Plaintiff that if he wanted the "burning to stop" (from the pepper spray) he needed to go to the showers. Id. Plaintiff claims that he was unable to move his legs and he was told by medical personnel that too much pepper spray was used. Id. Plaintiff was then, lifted onto a "medical bed" by correctional officers. Id.

  Plaintiff was later helped into a wheelchair by Defendant Osborne, an X-ray technician, who then escorted him to the X-ray room. Id. at 5. Plaintiff alleges Defendant Osborne was holding a stapler in his hand and "pretended" to have trouble opening the door to the examination room. Id. Osborne then "deliberately dropped" the stapler on Plaintiff's foot to determine whether Plaintiff was "faking" his injuries. Id. Plaintiff filed an administrative grievance alleging excessive force and medical malpractice. Id. Later that same day, Plaintiff was transferred to Salinas Valley State Prison. Id. at 6. II. Defendants' Motion to Dismiss per FED. R. CIV. P. 12(b)(6) [Doc. No. 27-1]

  Defendants move to dismiss Plaintiff's First Amended Complaint for failing to state a claim pursuant to FED.R.CIV.P. 12(b)(6). Defendants claim that: (1) Plaintiff's claims are barred by res judicata and collateral estoppel; (2) Plaintiff has not stated a Fourteenth Amendment due process claim against Defendant Raupe; and (3) Defendant Raupe is entitled to qualified immunity.

  A. Standard of Review

  A motion to dismiss for failure to state a claim pursuant to FED.R.CIV. P. 12(b)(6) tests the legal sufficiency of the claims in the complaint. A claim can only be dismissed if it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984). The court must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them, and must construe the complaint in the light most favorable to the plaintiff. N.L. Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986); Parks School of Business, Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995).

  The court looks not at whether the plaintiff will "ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim, a complaint cannot be dismissed without leave to amend. Conley, 355 U.S. at 45-46; see also Lopez v. Smith, 203 F.3d 1122, 1129-30 (9th Cir. 2000) (en banc) (district court should grant leave to amend when complaint fails to state a claim "unless it determines that the pleading could not possibly be cured by the allegation of other facts" and if "it appears at all possible that the plaintiff can correct the defect") (citations omitted).

  Where a plaintiff appears pro se, the court must construe the pleadings liberally and afford the plaintiff any benefit of the doubt. Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988). The rule of liberal construction is "particularly important in civil rights cases." Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992); Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) ("Presumably unskilled in the law, the pro se litigant is far more prone to making errors in pleading than the person who benefits from the representation of counsel."). In giving liberal interpretation to a pro se civil rights complaint, however, a court may not "supply essential elements of the claim that were not initially pled." Ivey v. Bd. of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). "Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss." Id.; see also Jones v. Community Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984) (conclusory allegations unsupported by facts are insufficient to state a claim under section 1983.) "The plaintiff must allege with at least some degree of particularity overt acts which defendants engaged in that support the plaintiff's claim." Jones, 733 F.2d at 649 (internal quotation omitted).

  B. Res Judicata and Collateral Estoppel

  Defendants argue that the doctrines of res judicata and collateral estoppel bars this action. Specifically, Defendants request that the Court take judicial notice of a previous action filed by Plaintiff in Nichols v. Laird, et al., S.D. Cal. Civil Case No. 04cv1662 J (PCL). A court "may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue." United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992). Thus, it is ...

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