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Thomas v. Felker

January 22, 2010

EDWARD THOMAS, PLAINTIFF,
v.
T. FELKER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Susan P. Graber United States Circuit Judge

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS TO DISMISS PLAINTIFF'S SECOND AMENDED COMPLAINT

I. Background

A. Procedural History

On September 17, 2008, Plaintiff Edward Thomas, a state prisoner incarcerated at California's High Desert Prison, proceeding without counsel, filed this civil rights action under 42 U.S.C. § 1983. Clerk's Record, Docket No. 1 ("Doc." 1.). Plaintiff was confined at the time of the events giving rise to the complaint. Plaintiff seeks monetary damages and injunctive relief. This court determined that the complaint stated four cognizable claims for relief: (1) denial of due process regarding a lack of opportunity to pursue administrative appeals and grievances; (2) excessive force; (3) denial of due process because of inadequate medical care; and (4) retaliation against him for filing administrative appeals. (Doc. 23.) The complaint named Defendants Tom Felker, T. Perez, D. Vanderville, M. Runnels, A. Audette, R. Ingwerson, J. Ginder, N. Albonico, G. Speers, M. Beutler, D. Neiman, L. Betti, J. Wright, A. Gorby, H. Cottrell, David Medina, J. Clark, and R. Shaw. (Doc. 1.) On March 9, 2009, Plaintiff amended his complaint to add Defendant R. Plainer. (Doc. 25; Doc. 27.)

On March 23, 2009, Plaintiff filed a "supplemental complaint," which the court construed as a motion for leave to amend his complaint. (Doc. 29.) The court determined that Plaintiff had stated cognizable claims and granted leave to amend the complaint to add allegations against Defendant Plainer and against new Defendants P. Cochrane, J. Lawry, C. White, Chad Nelson, T. Cobb, Kimberly Lowther, and A. Zinn. (Doc. 46.)

Four motions to dismiss under Federal Rule of Civil Procedure 12(b)(6) are now pending before the court.

On October 14, 2009, Defendants Ginder, Albonico, Speers, Beutler, Neimann, Gorby, Clark, Cottrell, Cochrane, and White filed a motion to dismiss Plaintiff's state-law claims for failure to plead compliance with California's Government Claims Act ("Motion I"). (Doc. 53.) On November 4, 2009, Plaintiff filed an opposition to Motion I. (Doc. 56.) Defendants Ginder et al. filed a reply to Plaintiff's opposition on November 9, 2009. (Doc. 57.)

On October 16, 2009, Defendant Medina filed a motion to dismiss Plaintiff's state-law claims for failure to plead compliance with the California Government Claims Act ("Motion II"). (Doc. 54.) Under Eastern District of California Local Rule 230(l), Plaintiff had 21 days to respond to the motion. Plaintiff did not respond to Motion II. "Failure of the responding party to file opposition . . . may be deemed a waiver of any opposition to the granting of the motion . . . ." E.D. Cal. Local R. 230(l). This court could deem Plaintiff's silence to be a waiver of any opposition to Motion II. However, Motion II raises the same legal issue already raised by Motion I, and Plaintiff opposed Motion I. Because the legal issue is identical, this court will deem Plaintiff's opposition of November 4, 2009, to be in opposition to Motion II also.

On November 23, 2009, Defendants Ginder, Albonico, Speers, Beutler, Neimann, Gorby, Clark, Cottrell, Cochrane, White, Medina, Vanderville, Audette, Ingwerson, Betti, Wright, Cobb, Lowther, Zinn, Felker, Perez, and Nelson filed a motion to dismiss certain of Plaintiff's claims against certain Defendants for failure to state a claim upon which relief can be granted ("Motion III"). (Doc. 60.) On December 14, 2009, Plaintiff filed "Plaintiff[']s Secondary (2nd) Objection/Opposition to Defendants['] Motion to Dismiss," which opposed the November 23, 2009, motion to dismiss. (Doc. 64.)

On December 22, 2009, Defendants Shaw and Lawry filed a motion to dismiss certain of Plaintiff's claims for failure to state a claim upon which relief could be granted ("Motion IV"). (Doc. 65.) Plaintiff had 21 days to respond to the motion. E.D. Cal. Local R. 230(l). Plaintiff failed to respond to Motion IV. The motion raised the same legal issue already raised by Motions I and II. Motion IV also raised two issues previously raised by Motion III, which Plaintiff opposed on December 14, 2009. Therefore, the court will deem Plaintiff's oppositions of November 4, 2009, and December 14, 2009, to be in opposition to Motion IV also.

B. Summary of Alleged Facts

Plaintiff alleges that he was assaulted by Defendants Beutler, Betti, and Neimann on May 17, 2008, that they threatened to retaliate against him if he reported their actions, and that prison staff delayed treatment for his injuries. (Doc. 1, at 7-10.) He alleges that when he reported the assault, Defendants Ginder and Albonico threatened him and tried to bribe him into withdrawing his report. (Doc. 1, at 11.) Plaintiff alleges that Defendants Audette and Ingwerson made false reports to cover up the assault, instead of conducting an impartial investigation into it. (Doc. 1, at 19.)

Plaintiff alleges that prison officials filed a false disciplinary report against him after he reported the assault. He alleges that Defendant Lawry conducted the disciplinary hearing without allowing Plaintiff the assistance of staff, the right to call witnesses or question the reporting employee, or the right to submit evidence. (Doc. 29, at 6.) Plaintiff alleges that prison officials, including Defendant White, interfered with his efforts to exhaust administrative remedies regarding this disciplinary hearing. (Doc. 29, at 10.)

Plaintiff alleges that on June 20, 2008, he was assaulted by Defendants Wright, Gorby, and Cottrell, and that they threatened to retaliate against him if he reported this second assault. (Doc. 1, at 13-14.) Plaintiff alleges that Defendant Clark had substituted a cracked cane for Plaintiff's cane, so that when Plaintiff attempted to stand after the assault, the cane broke, and he fell. (Doc. 1, at 15.) Plaintiff alleges that Defendants Wright, Gorby, and Clark accused him of faking his injuries and refused to obtain medical treatment for him. (Doc. 1, at 15-16.) Plaintiff also alleges that Defendant Speers laughed at him and did not get medical help. (Doc. 1, at 16.) Plaintiff alleges that when he slid his broken cane out under his cell door at Defendant Wright's request, Defendant Wright falsely accused Plaintiff of attacking Defendant Wright. (Doc. 1, at 16.) Plaintiff alleges that Defendants Medina, Speers, Shaw, and Clark falsified medical reports to cover up the incident. (Doc. 1, at 16-17, 20-22.) Plaintiff alleges that he received inadequate medical care after the incident. (Doc. 1, at 21-22.) Plaintiff alleges that, after the incident, Defendant Gorby confiscated Plaintiff's personal property. (Doc. 1, at 20.)

Plaintiff alleges that Defendant Plainer was responsible for a disciplinary hearing after the second assault, at which Plaintiff was found to have assaulted Defendant Wright with the broken cane. (Doc. 29, at 12.) Plaintiff alleges that this disciplinary hearing did not take place or considered falsified reports prepared by or false testimony from Defendants Plainer, Nelson, Cobb, and Zinn. (Doc. 29, at 13-18.)

Plaintiff alleges that he informed Defendants Felker, Perez, Vanderville, Runnels, and Cochrane either of the assaults or that he was in fear for his safety, but they did not protect him. (Doc. 1, at 17-19; Doc. 29, at 7-9) He also alleges that Defendants Runnels and Vanderville knew that he was in danger ...


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