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Garrett v. McNutt

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


December 15, 2008

CRAIG KAISER GARRETT, PLAINTIFF,
v.
J. MCNUTT, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, AND DENYING DEFENDANT SWEENEY'S MOTION TO DISMISS (Docs. 43 and 45)

Plaintiff Craig Kaiser Garrett is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72-302.

On October 10, 2008, the Magistrate Judge filed a Findings and Recommendations that recommended Defendants' motion to dismiss the excessive force claim against Defendant Sweeney be denied. The Findings and Recommendations were served on the parties and contained notice to the parties that Objections were to be filed within fifteen days. Defendants filed an Objection on October 23, 2008.

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court finds the Findings and Recommendations to be supported by the record and by proper analysis. Defendants contend in their Objection, as they did in their motion, that Defendant Sweeney cannot be liable for the other Defendants' alleged excessive force because the complaint's allegations do not state Defendant Sweeney was present when the alleged force was used and do not state Defendant Sweeney supervised the other Defendants. Defendants are essentially asking this court to find on a Rule 12(b)(6) motion that one prison official cannot be liable for other prison officials' excessive force if he or she caused the other officials to use the excessive force. The court declines to find, as a matter of law, that a prison official can escape all liability under the Eighth Amendment if he or she can convince others to brutalize an inmate but manages not to be present when the other officers actually inflict the injury. In such a situation, the court finds that the liability for setting in motion such events is not confined to a supervisor. The excessive force claim against Officer Sweeney has already been found to state a claim by the Magistrate Judge on screening and in the Findings and Recommendations. At this stage of the pleadings, the complaint need only allege factual allegations that are plausible on their face and raise the right to relief above the speculative level. See Bell Atlantic Corp. v. Twombly, -- U.S. -- , 127 S.Ct. 1955, 1974 (2007); Weber v. Department of Veterans Affairs, 512 F.3d 1178, 1181 (9th Cir. 2008). While Plaintiff may ultimately be unable to come forward with sufficient evidences to show that Officer Sweeney actually caused the excessive force, the court declines to find the complaint fails to state a claim at this time.

Accordingly, IT IS HEREBY ORDERED that:

1. The Findings and Recommendations, filed October 10, 2008, is adopted in full; and

2. Defendant Sweeney's motion to dismiss the excessive force claim against her, filed July 23, 2008, is DENIED.

IT IS SO ORDERED.

20081215

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