The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT DEFENDANTS' MOTION TO DISMISS BE GRANTED, PLAINTIFF'S FIRST AMENDED COMPLAINT BE DISMISSED, AND PLAINTIFF BE GRANTED LEAVE TO FILE A SECOND AMENDED COMPLAINT (Doc.30) OBJECTIONS, IF ANY, DUE WITHIN 30 DAYS
I. Findings and Recommendations
Plaintiff Thon Ngot Sang ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff's first amended complaint, filed on October 24, 2008, against Defendants A. K. Scribner, O. A. Ybarra, R. Flores, and J. Torres ("Defendants") for violation of the Eighth Amendment. On May 19, 2009, Defendants filed a motion to dismiss pursuant to the unenumerated portion of Rule 12(b) of the Federal Rules of Civil Procedure. (Doc. 30, Defs.' Mot. To Dismiss.) On June 19, 2009, Plaintiff filed his opposition to Defendants' motion. (Doc. 32, Pl.'s Opp'n.)*fn1 On June 25, 2009, Defendants filed their reply. (Doc. 33, Defs.' Reply.) This matter is deemed submitted pursuant to Local Rule 78-230(m).
Defendants categorize this motion as pursuant to the unenumerated portion of Rule 12(b). Defendants contend that issues of supervisory liability and qualified immunity are appropriate for an unenumerated 12(b) motion because the Court has authority to resolve both issues in the interests of judicial economy and fairness to all parties. (Doc. 30-2, Mem. Of P. & A. In Support of Defs.' Mot. To Dismiss 3:5-12.) Defendants cite to Ritza v. Int'l Longshoremen's & Warehousemen's Union, 837 F.2d 365 (9th Cir. 1988) (per curiam). That case, however, concerned exhaustion of remedies. Id. at 368-69. Here, Defendants are contending that 1) Plaintiff failed to state a claim against Defendant Scribner for supervisory liability and 2) Defendants are entitled to qualified immunity. (Doc. 30-2, Mem. Of P. & A. 1:26-2:3.) Defendants state that the motion is based on the allegations "within the four corners of the Complaint." (Doc. 30-2, Mem. Of P. & A. 3:11.) Defendants are thus contending that Plaintiff failed to state a claim against any Defendants. A motion to dismiss for failure to state a claim is a Rule 12(b)(6) motion. Accordingly, the Court construes Defendants' motion as pursuant to Federal Rule of Civil Procedure 12(b)(6).
B. Summary of Plaintiff's Amended Complaint
Plaintiff alleges that on December 8, 2005, while housed at the California Substance Abuse and Treatment Facility ("SATF"), Plaintiff was suffering a severe bout of depression which brought on mental distress and claustrophobic anxiety. Plaintiff approached housing officers Defendants Torres and Flores to notify them of Plaintiff's psychological state. Plaintiff is a prison mental health recipient. Due to Plaintiff's prior suicide attempts and self-inflicted harm Plaintiff informed Defendants Torres and Flores that he need to be placed on single cell status or Administrative Segregation ("ad seg") until seen by a mental health care provider.
Defendant Torres asked Plaintiff for further explanation. Plaintiff then stated that he felt overwhelmingly stressed due to inability to conform to certain political/ethnic rules deemed unnecessary within the unit. Defendant Torres expressed disbelief that Plaintiff as an Asian American had prison politics concerns. Defendant Torres asked Plaintiff repeatedly if he had any enemy concerns, to which Plaintiff responded no. Plaintiff was issued a CDC 114-D/lock up order which indicated that Plaintiff had enemy concerns.
Defendant Lieutenant Ybarra then saw Plaintiff because of his vehement denials of enemy concerns. Defendant Ybarra likewise expressed disbelief that Plaintiff had any prison politics concerns. Plaintiff was placed in ad seg based on this false report. On December 14, 2005, Plaintiff was seen by the weekly Classification Review Committee, and then re-housed back into the general population. Plaintiff later discovered that the lock-up report had been typed by Asian inmate clerks.
On January 7, 2006, Plaintiff was brutally assaulted by two Asian inmates and suffered a severe jaw fracture from a responding officer's baton blow. Plaintiff was then placed back into ad seg for being the victim of an assault. Plaintiff contends that Defendant Warden Scribner is responsible for "maintaining and overseeing a governmental correctional agency in who's (sic) lack of discipline and control has allowed for it's (sic) officer agents to run systematically afoul of basic humane standards of decency." Plaintiff alleges that Defendants acted with deliberate disregard of Plaintiff's mental and psychological need for treatment by setting into play events that led to the assault on Plaintiff.
C. Failure To State A Claim Upon Which Relief May Be Granted
"The focus of any Rule 12(b)(6) dismissal... is the complaint." Schneider v. California Dept. of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998). In considering a motion to dismiss for failure to state a claim, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the party opposing the motion, and resolve all doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, reh'g denied, 396 U.S. 869 (1969). The federal system is one of notice pleading. Galbraith v. County of Santa Clara, 307 F.3d 1119, 1126 (2002). "Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions," none of which apply to § 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002), overruled in part on other grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007); see Fed. R. Civ. P. 8(a).
Pursuant to Rule 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief..." Fed. R. Civ. P. 8(a). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 555). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is ...