The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge
ORDER (1) ADOPTING IN PART, REJECTING IN PART MAGISTRATE JUDGE'S REPORT & RECOMMENDATION and (2) GRANTING IN PART, DENYING IN PART DEFENDANTS' MOTION TO DISMISS SECOND AMENDED COMPLAINT (Doc. Nos. 41 & 55)
Presently before the Court is a Report and Recommendation ("R&R") by Magistrate Judge Louisa S. Porter on the defendants' motion to dismiss the Second Amended Complaint ("SAC") of Isidro Roman ("plaintiff") for alleged violations of 42 U.S.C. § 1983 during plaintiff's incarceration at Kern Valley and Calipatria State Prisons. The SAC names the following defendants in their individual capacities: -Mike Knowles, warden at Kern Valley; -G. Giurbino, warden at Calipatria; -S. Zamora, health care manager at Kern Valley; -M. E. Bourland, chief deputy warden at Calipatria; -D. Paramo, associate warden at Calipatria; -C. G. Butler, captain at Calipatria; -D. Bell, correctional counselor and appeals coordinator at Calipatria; -R Din, Newman, and M. D. Greenwood, all correctional lieutenants at Calipatria; -F. L. Martinez, correctional sergeant at Calipatria; -A. Hernandez, K. Teeters, J. Nutt, C. Rodiles, Rush, Barajas, Ibarra, Alderete, Lopez, Gonzales, and P. Rodriguez-Toledo, all correctional officers at Calipatria; and -L. Terrones, medical technical assistant at Kern Valley.
The R&R extensively summarizes the SAC's factual allegations, which the Court briefly restates here. Plaintiff arrived at Calipatria on June 21, 2002 and remained there for almost four years. (SAC ¶ 17.) Supervisory staff Giurbino, Bourland, and Paramo were allegedly aware of their subordinates' practices of staging gladiatorial fights among inmates, "subjecting disfavored prisoners to foreseeable and preventable attacks", and using excessive force against inmates. (Id. ¶ 21.) When plaintiff discovered and reported threats to his personal safety if he remained housed in the Special Needs Yard, Calipatria staff proceeded to move plaintiff to temporary housing in the Administrative Segregation Unit ("ASU"). (Id. ¶ 18.) Calipatria correctional staff, with the intent of instigating an inmate assault, allegedly tampered with plaintiff's ASU transfer documentation so that plaintiff was escorted to a cell occupied by a general population inmate. (Id. ¶ 24.) As soon as plaintiff entered the cell, the inmate immediately attacked him. (Id. ¶ 26.) Rather than break up the attack, correctional staff allegedly sat back and watched. (Id.) When correctional staff finally broke up the attack, they subdued plaintiff with excessive force. (Id. ¶ 27.) Subsequently, correctional staff used provocative epithets toward plaintiff, thus provoking other inmate attacks against plaintiff. (Id. ¶¶ 33-34, 42.) Numerous Calipatria staff refused to provide plaintiff with adequate medical treatment responsive to the pain and suffering he endured following the attacks. (Id. ¶ 38.)
Plaintiff was transferred to Kern Valley on May 10, 2006. Plaintiff complains of an encounter at the medical clinic on August 4, 2006, wherein defendant Terrones allegedly berated plaintiff and ejected him from the clinic when plaintiff refused to remove a blood pressure band from his arm. (SAC ¶¶ 39-40.)
In response to all incidents at Calipatria and Kern Valley, plaintiff filed administrative grievances. Plaintiff alleges that correctional staff and supervisors took various steps to thwart the grievance process, such as covering up evidence, preventing plaintiff from introducing his own evidence, and offering to dismiss internal prison charges against plaintiff if he would dismiss his grievances. (SAC, e.g., ¶¶ 36-37, 42, 48.) The officers and staff at the two prisons comprise "[a] rogue cadre . . . called the 'Greenwall' [who] have systematically engaged in brutality, corruption, abuses, retaliation, and intimidation of inmates and have employed [its] members['] government power as a tool and instrument of oppression." (Id. ¶ 46.) Plaintiff alleges that defendants interfered with the grievance process as retaliation against prisoners (such as plaintiff) who frequently file grievances to expose misconduct by correctional officers.
Magistrate Judge Porter issued the R&R on January 26, 2009 and made the following recommendations: -Grant the motion to dismiss certain allegations against defendants Knowles, Giurbino, Zamora, Bourland, Paramo, Bell, Butler, Newman, and Greenwood with leave to amend, because plaintiff based his allegations on a respondeat superior theory of liability, which does not exist under § 1983; -Grant the motion to dismiss all Fourteenth Amendment claims without leave to amend because the claims for deliberate indifference and excessive force are properly analyzed under the Eighth Amendment, and because the claims for retaliation against and interference with the filing of grievances are properly analyzed under the First Amendment; -Grant the motion to dismiss the Eighth Amendment claim for deliberate indifference to safety against defendants Knowles, Giurbino, Zamora, Bourland, Paramo, Butler, Bell, Newman, Greenwood, and Terrones with leave to amend, because plaintiff failed to allege these defendants knew of and disregarded an excessive risk to the plaintiff's health or safety. See Farmer v. Brennan, 511 U.S. 825, 837 (1994); -Grant the motion to dismiss the Eighth Amendment claim for excessive force against defendants Knowles, Giurbino, Zamora, Bourland, Paramo, Butler, Bell, Newman, Greenwood, and Terrones with leave to amend because plaintiff failed to allege the actual use of excessive force by these defendants. See Hudson v. McMillian, 503 U.S. 1, 6-7 (1992); -Grant the motion to dismiss the Eighth Amendment claim for deliberate indifference to medical needs against defendants Knowles, Giurbino, Zamora, Paramo, Bourland, and Terrones, because the claim against Terrones fails to plead a "serious" medical need and the claim against the other defendants fails to plead actual knowledge of the medical condition or failure to provide necessary medical attention. See McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997); -Grant the motion to dismiss the state tort causes of action against all defendants because plaintiff failed to make a timely presentation of his claim to the Victim Compensation Board*fn1 ;
-Grant the motion to dismiss state-law claims against defendants Knowles, Giurbino, Zamora, Bourland, and Paramo arising from these defendants' failure to obtain medical care for plaintiff, because they are immune under California Government Code § 845.6; -Grant the motion to dismiss state-law negligence claims against defendants Knowles, Giurbino, Zamora, Bourland, Paramo, Butler, Bell, Newman, Greenwood, and Martinez, to the extent those allegations are based on supervisory roles, because these defendants are immune under California Government Code § 820.8; and -Grant the motion to dismiss defendants R. Din, Ibarra, Lopez, and Gonzalez without prejudice for failure to effect service, unless plaintiff showed cause why these defendants should not be dismissed by providing proof of proper service.
On February 9, 2009, plaintiff responded to the Order to show cause concerning the service issues. (Doc. No. 56.) After the Court denied plaintiff's motion for appointment of counsel but granted plaintiff's request for an extension (Doc. No. 61), plaintiff filed his objections to the R&R on May 5, 2009 (Doc. No. 63).
Pursuant to 28 U.S.C. § 636(b)(1), the Court reviews de novo those portions of the R&R to which either side objects. Thomas v. Arn, 474 U.S. 140, 149 (1985); United States v. ReynaTapia, 328 F.3d 1114, 1121 (9th Cir. 2003). "When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Fed. R. Civ. P. 72, Advisory Committee Notes (1983) (citing Campbell v. U.S. Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974)).
FRCP 12(b)(6) allows a defendant to test the sufficiency of a plaintiff's complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). To survive a Rule 12(b)(6) motion, the plaintiff must plead enough facts "to raise a right to relief about the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). When considering the motion, the Court must accept as true plaintiff's allegations of material fact, and construe them in the light most favorable to the plaintiff. Barron v. Reich, 13 F.3d 1370, 1374 (9th Cir. 1994). Where a plaintiff is proceeding pro se, particularly when pleading a civil rights claim, the Court "has an obligation to construe the pleading liberally and to afford the petitioner the benefit of any doubt." Bretz v. Kelman, 773 F.2d 1026, 1027 (9th Cir. 1985) (citing Jones v. Cmty. Dev. Agency, 733 F.2d 646, 649 (9th Cir. 1984)). However, the Court "may not supply essential elements of the claim that were not initially pled." Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982); Pena v. Gardner, 976 F.2d 469, 471-72 (9th Cir. 1992). "A pro se litigant must be given leave to amend [the] complaint unless it is absolutely clear that the deficiencies of the complaint could not be cured by amendment." Karim-Panahi v. L.A. Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988) (quoting Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)).