The opinion of the court was delivered by: Hon. Napoleon A. Jones, Jr. United States District Judge
ORDER: (1) ADOPTING IN PART THE REPORT & RECOMMENDATION; and (2) GRANTING DEFENDANTS' MOTION TO DISMISS
Before the Court is Magistrate Judge Anthony J. Battaglia's Report and Recommendation ("R&R") recommending the Court grant in part and deny in part Defendants J. Frias, D. Pollard, G. Siota, R. Sutton, A. Lopez, and W. Griggs' (collectively, "Defendants") Motion to Dismiss the Second Amended Complaint ("SAC") pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. [Doc. No. 56.] On January 27, 2009, Judge Battaglia filed the R&R. [Doc. No. 61.] To date, Plaintiff has not filed an opposition despite notice and has not filed objections to the R&R. After a thorough review of the papers and all supporting documents, this Court ADOPTS IN PART the R&R and GRANTS Defendants' motion to dismiss.
According to the Second Amended Complaint, Defendants J. Frias, D. Pollard, A.Lopez, and W. Griggs were correctional officers, Defendant G. Siota was a correctional lieutenant, and Defendant R. Sutton was a correctional sergeant at Calipatria State Prison during the alleged incident.
On February 28, 2006, Plaintiff alleges that Defendant Frias berated him and spat on his face, pepper sprayed him, and hit him on the legs with a baton. (SAC at 4.) Defendant Frias also hit Plaintiff on the head which caused a laceration that required "staples." (Id.) Thereafter, Plaintiff also claims that Defendant Pollard sprayed Plaintiff with pepper-spray in the open wound causing him great pain and irritation which lasted up to four days. (Id.)
Following the incident, Plaintiff was led out of the building by Defendant Pollard. (Id.) Plaintiff saw Defendant Siota standing in front of the building with several other correctional officers. (Id.) At that point, Defendant Frias forcefully punched Plaintiff in his lower right rib area and Defendant Siota did not attempt to stop Defendant Frias from the attack. (Id.)
Defendant Griggs and another correctional officer escorted Plaintiff to the infirmary. (SAC at 5.) Defendant Griggs allegedly kept demanding that Plaintiff, who was covered with blood, walk faster and yanked Plaintiff's handcuffed right arm forcing Plaintiff to walk faster despite the fact that he was limping and in excruciating pain during the approximately one-half mile walk to the infirmary. (Id.)
Plaintiff claims that Defendant Sutton was involved in fabricating evidence when he asked Plaintiff's cellmate to write a statement that "[Plaintiff] was struck only once and that he slipped in the pepper spray, and fell and cracked his head open." (Id.) Plaintiff alleges his cellmate wrote in his statement "I said I didn't see that happen." (Id.)
Plaintiff further asserts that Defendant Lopez denied him his due process rights by kicking his cell door and throwing Plaintiff's Rules Violation Report under the door without allowing Plaintiff the right to postpone his disciplinary hearing, request an investigative employee, or request witnesses. (Id.) Plaintiff also claims that on March 25, 2006, Defendant Lopez opened his cell door "tray slot" and threw two eight ounce milk cartons at his body saying "-uck you, you piece of -hit." (Id.) In addition, on April 1, 2006, Defendant Lopez kicked Plaintiff's cell door and stated, "You don't want me to be your [investigative employee], you piece of -hit." (Id. at 5-6.)
Plaintiff seeks to hold Defendants liable based on the theories that: (1) Defendants Frias, Pollard, and Lopez used excessive force; (2) Defendants Lopez, Griggs, Siota, and Sutton acted with deliberate indifference to his serious medical needs; (3) Defendant Lopez violated his due process rights; (4) all Defendants implemented, maintained, and tolerated deficient policies, practices, and customs; (5) all Defendants acted with class-based animus and (6) all Defendants retaliated against him. Plaintiff seeks injunctive relief, an evidentiary hearing, general, actual, compensatory, and punitive damages, and costs. (SAC at 12-13.)
On June 4, 2007, Plaintiff, an inmate incarcerated at the California State Prison in Calipatria,*fn1 California, proceeding pro se and in forma pauperis, filed a civil rights complaint pursuant to 42 U.S.C. § 1983. On December 11, 2007, the Court allowed the filing of Plaintiff's First Amended Complaint. [Doc. No. 20.] On December 13, 2007, Defendants A. Lopez, W. Griggs, D. Pollard, G. Siota, and R. Sutton filed a motion to dismiss the First Amended Complaint. [Doc. No. 22.] On June 13, 2008, Judge Battaglia issued a report and recommendation. [Doc No. 40.] September 16, 2008, Defendant Frias filed a motion to dismiss the First Amended Complaint. [Doc. No. 48.] On September 25, 2008, the Court adopted the report and recommendation granting Defendants' motion to dismiss as to Defendants Lopez, Griggs, Pollard, Siota, and Sutton with leave to amend. [Doc. No. 49.] However, the Court did not address Defendant Frias' motion to dismiss since he had not been properly served at the time Defendants Lopez, Griggs, Pollard, Siota, and Sutton filed their motion to dismiss. On October 17, 2008, the Court deferred ruling on the motion to dismiss by Defendant Frias until Plaintiff filed a Second Amended Complaint. [Doc. No. 51.] On December 4, 2008, Plaintiff filed his SAC, and on December 12, 2008, the Court denied Defendant Frias's motion to dismiss the First Amended Complaint as moot. [Doc. No. 58.] On December 11, 2008, all Defendants filed a motion to dismiss the SAC ("Motion"). [Doc. No. 57.] On January 27, 2009, Judge Battaglia issued a report and recommendation recommending Defendants' motion to dismiss be granted in part. [Doc. No. 61.] Plaintiff has not filed an opposition despite notice and filed no objections to the R&R.
Defendants Frias, Pollard, Lopez, Siota, Sutton and Griggs now move to dismiss the SAC pursuant to Federal Rule of Civil Procedure 12(b) and 12(b)(6). Defendants contend that: (1) Plaintiff has failed to properly exhaust his administrative remedies; and (2) the Second Amended Complaint fails to state a claim.
A motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6) tests the legal sufficiency of the claims in the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A court may dismiss a claim only when "a plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 338 (9th Cir. 1996). The court hearing the motion must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them, and the court must construe the complaint in the light most favorable to the plaintiff. N.L. Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986); Parks School of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995).
B. Unenumerated Rule 12(b) Motion
A plaintiff who fails to exhaust available administrative remedies prior to filing suit is subject to dismissal on an "unenumerated Rule 12(b) motion, rather than a summary judgment motion." Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). Nonexhaustion under § 1997e(a) is an affirmative defense and defendants have the burden of raising and proving the absence of exhaustion. Jones v. Bock, 127 S. Ct. 910, 919 (2007); Brown v. Valoff, 422 F.3d 926, 936 (9th Cir. 2005) ("it is of central importance that § 1997e(a) is an affirmative defense").
II. Reviewing a Magistrate Judge's R&R
The duties of the district court in connection with a magistrate judge's R&R are set forth in Rule 72(b) and 28 U.S.C. § 636(b)(1). See FED. R. CIV. P. 72(b); 28 U.S.C. § 636(b)(1) (2005). The district court must "make a de novo determination of those portions of the report . . . to which objection is made" and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1) (2005); see United States v. Raddatz, 447 U.S. 667, 676 (1980).
When no objections are filed, the Court may assume the correctness of the Magistrate Judge's findings of fact and decide the motion on the applicable law. Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974). Under such circumstances, the Ninth Circuit has held that "a failure to file objections only relieves the trial court of its burden to give de novo review to factual findings; conclusions of law must still be reviewed de novo." Barilla v. Ervin, 886 F.2d 1514, 1518 (9th Cir. 1989).
Where a plaintiff appears in propria persona in a civil rights case, 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, 936 F.2d 1258, 1261 (9th Cir. 1992). However, in giving liberal interpretation to a pro se civil rights complaint, 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). "Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss." Id.
I. Exhaustion of Administrative Remedies
In their Memorandum of Points and Authorities ("P&A"), Defendants assert that Plaintiff is barred from relief on the following claims for failure to exhaust administrative remedies: (1) as to all Defendants, the Eighth Amendment claim for deliberate indifference to a serious medical need; (2) as to all Defendants, the claim for class-based animus characterized by invidious hatred, resentment, and hostility toward sensitive needs inmates (which Defendants assume to be an Equal Protection claim); (3) as to all Defendants, the claim for implementing, maintaining, and tolerating ...