The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS (DOC. NO. 19)
In his First Amended Complaint ("FAC"), plaintiff makes three claims: (1) an Eighth Amendment claim for failure to protect; (2) an Eighth Amendment claim for excessive force; and (3) a First Amendment claim for retaliation. Presently, defendants Wilson and Sosa filed a motion to dismiss all of plaintiff's claims pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff did not file an opposition and the Court took this matter under submission without oral argument.
Plaintiff's alleges the following facts. On August 13, 2007, while alone in his cell, plaintiff called Officer Newsham and reported that his cellmate had threatened him. Approximately five minutes later, Defendant Sergeant Sosa approached plaintiff's cell and asked him about the problem. Plaintiff reiterated his concern and asked Sergeant Sosa to remove the cellmate because he was "acting bizarre" and had threatened him. (FAC ¶ 6.) Sergeant Sosa stated he would have plaintiff's cellmate placed in a holding cage upon his return, where he would remain until he was rehoused.
Approximately fifteen minutes later, plaintiff saw defendant Correctional Officer Wilson escorting plaintiff's handcuffed cellmate into the housing unit. Officer Wilson stopped to talk with Sergeant Sosa, shook his head "no" several times, and looked at plaintiff's cell door. Officer Wilson grabbed plaintiff's cellmate and walked him over to the cell while Sergeant Sosa and four other officers watched from their posts. When they reached the cell door, Officer Wilson told plaintiff to "cuff-up." (FAC ¶16.) In response, plaintiff informed Officer Wilson of his prior conversation with Sergeant Sosa and voiced his concern the cellmate's return would spark serious violence. Officer Wilson told plaintiff to go to the back of the cell or Wilson would enter the cell to fight.
Plaintiff, uncuffed, walked to the back of the cell and Officer Wilson motioned the tower officer to open the cell door. As the cell door opened, plaintiff again asked Officer Wilson not to put his cellmate back in the cell. Officer Wilson told plaintiff to go to the back of the cell and sit down. Officer Wilson maneuvered plaintiff's cellmate into the cell and told the tower to close the door.
Fearing for his safety, plaintiff waited until the door was closed and then immediately pinned his cellmate to the door to prevent Officer Wilson from removing his handcuffs through the food tray port. Officer Wilson asked the tower officer to open the door. As the cell door was opening, plaintiff released his cellmate and returned to the rear of the cell. Officer Wilson removed the cellmate, sprayed plaintiff with pepper-spray, and informed plaintiff of his intention to write plaintiff up for battery of an inmate. Officer Wilson took the cellmate to a holding cage, where the cellmate was kept until he was rehoused.
Officer Wilson returned and verbally threatened neighboring inmates against being witnesses for plaintiff. Thereafter, Officer Wilson allegedly threatened plaintiff against filing a complaint or "things could get a lot worse if [plaintiff] pursued the matter." (FAC ¶ 39.) While passing out dinner trays that evening, Officer Wilson allegedly removed most of the food from plaintiff's tray and asked plaintiff how he liked the "diet tray." (FAC ¶ 40.) Officer Wilson then came to plaintiff's cell door holding a letter and told plaintiff "he was sending [plaintiff's] letter back to the mailroom and that [plaintiff] would not be receiving anything while he was working." (FAC ¶ 41.)
Sergeant Sosa allegedly told plaintiff he had made a big mistake and wished he had not let it happen. Plaintiff filed a staff complaint against Sergeant Sosa and Officer Wilson on August 14, 2007.
A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) tests the legal sufficiency of the claims asserted in the complaint. Fed. R. Civ. P. 12(b)(6). To avoid a Rule 12(b)(6) dismissal, a complaint need not contain detailed factual allegations; rather, it must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S.544 (2007). The court's review is limited to the contents of the complaint and must accept all factual allegations pled in the complaint as true, drawing all reasonable inferences from them in favor of the nonmoving party. Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337-38 (9th Cir.1996). In spite of this deference, it is not proper for the court to assume that "the [plaintiff] can prove facts which [he or she] has not alleged." Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). Furthermore, a court is not required to credit conclusory legal allegations cast in the form of factual allegations, unwarranted deductions of fact, or unreasonable inferences. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).
A. Failure to Protect Claim
Plaintiff makes two failure to protect claims. First, Sergeant Sosa and Officer Wilson allegedly failed to protect plaintiff from a potential attack by his cellmate. Second, Sergeant Sosa allegedly failed to protect plaintiff from the pepper-spraying by Officer Wilson. Defendants argue plaintiff's first claim fails because he was never attacked. Defendants argue plaintiff's second claim ...