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Andrews v. Whitman

March 28, 2008

DAVID RAYMOND ANDREWS, CDC #T-67625, PLAINTIFF,
v.
M.C. WHITMAN; G.J. JANDA; M.E. BOURLAND; T. OCHOA; C. BUTLER; W.C. ROBERTS; F. RUTLEDGE; CALIFORNIA DEPARTMENT OF CORRECTIONS, DEFENDANTS.



The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION AS MODIFIED; AND ORDER AMENDING ORDERS ISSUED FEBRUARY 21, 2008 AND MARCH 18, 2008 [Docket nos. 17, 19, 20, 24, 64]

Plaintiff, a prisoner proceeding pro se, brought claims under 42 U.S.C. §§ 1983 and 1985 for alleged violations of his rights to equal protection, due process, freedom from retaliation for exercising his First Amendment rights, and freedom from cruel and unusual punishment. This matter was referred to Magistrate Judge Nita L. Stormes for report and recommendation pursuant to 28 U.S.C. § 636 and Civil Local Rule 72.1(d). Defendants filed a non-enumerated motion under Fed. R. Civ. P. 12(b) seeking an order dismissing the complaint, granting judicial notice of certain facts, and charging Plaintiff with a strike under 28 U.S.C. § 1915(g). Defendants asserted various grounds for dismissal, including failure to exhaust, failure to state a claim, and qualified immunity. Following briefing, Judge Stormes issued her report and recommendation (the "R&R").

The R&R notified Plaintiff of his right to object, and cautioned him that failure to object within the time permitted might waive his appellate rights. On March 18, 2008, the Court issued an order [Docket no. 69] adopting the R&R as modified. That order is now WITHDRAWN and this order is substituted in its place. The Clerk is directed to remove the order issued March 18, 2008 from the docket.

I. Legal Standards

A district judge "may accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions" on a dispositive matter prepared by a magistrate judge proceeding without the consent of the parties for all purposes. Fed. R. Civ. P. 72(b); see also 28 U.S.C. §636(b)(1). A party objecting to the recommended disposition of the matter may "serve and file specific objections to the proposed findings and recommendations," and "a party may respond to another party's objections." Rule 72(b). "[T]he court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. §636(b)(1). United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) ("The statute makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise.")

"In deciding a motion to dismiss for a failure to exhaust non-judicial remedies, the court may look beyond the pleadings and decide disputed issues of fact." Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003). In ruling on a motion to dismiss for failure to state a claim, however, the Court accepts factual allegations as true and construes the pleadings in the light most favorable to the nonmoving party. Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 900 (9th Cir. 2007).

II. Plaintiff's Objections

Plaintiff filed his objections ("Objections") on February 22, 2008 and the same day filed an ex parte application (the "Application") for leave to amend his complaint. Defendants also filed objections, and also replied to Plaintiff's objections, arguing he should not be given leave to amend his complaint. Defendants requested that, if the Court were inclined to grant Plaintiff's request for leave to amend, the Court hold a hearing to allow them to present their arguments.

The R&R recommended denial of Defendants' motion in most respects, except that it recommended dismissal of Plaintiff's due process and equal protection claims with leave to amend. Plaintiff's Objections are generalized, setting forth his understanding of the facts and the requesting leave to amend the complaint to better explain his position. In his Application, Plaintiff concedes he has not adequately pleaded his due process and equal protection claims. In essence, Plaintiff's Objections explain what he intends to include in his amended complaint.

III. Defendants' Objections

Defendants have filed extensive Objections addressing the exhaustion issue as well as inadequacy of the pleadings. Defendants' Objections argue that, regardless of whether Plaintiff exhausted his claims against Officer Galban, whom he alleges assaulted him, he has not exhausted his claims against the Defendants in this case. Plaintiff did not name Galban as a Defendant in this case, but rather is suing other prison officials.

A. Eighth Amendment Claim

Defendants argue Plaintiff did not include Galban's alleged misconduct as part of his Eighth Amendment claim. (Ds.' Obj. to R&R at 1:11--13.) While technically accurate, this is incomplete. Though Plaintiff did not name Galban as a Defendant and does not seek to hold Galban liable for the assault Galban allegedly committed, he does name certain guards, whose names he does not know, as "Doe" Defendants.*fn1 (Compl. at 7, 19.) Plaintiff alleges these Doe Defendants are members of the "Green Wall" prison guard gang, and conspired together to arrange for assaults on him and other prisoners by their fellow inmates. (Id.) He alleges Galban's assault on him resulted from this conspiracy. (Id.)

The R&R did not directly address the adequacy of Plaintiff's pleading of his Eighth Amendment claim against the Doe Defendants. However, § 1983 plaintiffs must plead conspiracy claims with enough specificity to put defendants on notice of claims against them. Burns v. County of King, 883 F.2d 819, 822 (9th Cir. 1989).

At present, Plaintiff has not identified any participants, nor has he alleged any specific facts other than the existence of the Green Wall gang and Galban's assault on him. The Green Wall Gang's alleged wrongdoing consists of striking out indirectly at inmates by arranging for inmates to attack each other. (Compl. at 7 ("Guards conspire amongst themselves and organize stabbings and assaults of selected prisoners by inmates."), 19 (" . . . using their positions as corrections officers to organize assaults and stabbings of prisoners by inmates . . .").) He alleges as a result of this conspiracy he was attacked in August of 2003 by unidentified assailants, suffering a broken hand and two stab wounds, (id.), an attack for which he makes no claim in this action. There is no allegation who conspired nor does Plaintiff allege how the conspiracy resulted in Officer Galban's attack, except that he seems to allege Galban assaulted him in order to prevent him from complaining about the Green Wall gang's practices. (Id. ("Sergeant Galban['s] sexual abuse and threat was perpetrated in B-5 housing unit and was precipitated by Plaintiff['s] stated awareness of guards' efforts to get him. Plaintiff was silenced on that night.") If Plaintiff believed Galban were a member of the gang or participating in the gang's conspiracy, he has not alleged this. (See id. at 19 (alleging the gang consisted of "the Defendants et alia hitherto unidentified . . . .")) Therefore, no Defendant or potential Defendant has been given adequate notice of the claims against them. See Fed. R. Civ. P. 8. Because this is Plaintiff's first notice of the inadequacy of this pleading, he will be given opportunity to amend.

Defendants also object to the R&R's recommendation that Plaintiff's claim against Defendants for failing to protect him from further attacks should be dismissed. The R&R in part interprets this claim as referring to actions the Defendants took immediately following the alleged assault, when he says they failed to take action to bring Galban to justice or to adequately protect him, as well as the next year, ...


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