The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT DEFENDANTS' MOTION TO DISMISS BE DENIED OBJECTIONS DUE WITHIN 30 DAYS
Plaintiff Annette Lee Imboden ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On March 15, 2010, Defendants filed a motion to dismiss on the grounds that Plaintiff fails to state a claim and failed to exhaust her administrative remedies prior to filing suit. (Doc. #20.) Plaintiff filed an opposition to Defendants' motion to dismiss on May 10, 2010. (Doc. #24.) Defendants filed a reply to Plaintiff's opposition on May 17, 2010. (Doc. #25.) For the reasons set forth below, the Court will recommend that Defendants' motion to dismiss be denied.
This action proceeds on Plaintiff's first amended complaint filed on April 23, 2009. (Doc. #13.) Plaintiff's complaint named Dr. S. Schulte (senior psychologist), Dr. Souza (staff psychologist), Lt. Scott (program lieutenant), and R.A. Ferguson (correctional officer) as defendants. Plaintiff claims that Schulte, Souza, Scott, and Ferguson violated Plaintiff's rights under the Eighth Amendment. Plaintiff claims that Defendants were deliberately indifferent toward threats of violence against Plaintiff from other inmates.
Plaintiff claims that she was savagely beaten by four of her roommates at Valley State Prison for Women. Plaintiff was attacked by inmates B. Moreno, R. Savala, M. Salazar, and S. Pelayal during "institutional count" while the inmates were locked in their room. (Am. Compl. 3, ECF No. 13.) Plaintiff claims that she returned to her room to be counted and Defendant Ferguson opened the door to let her in. When the door was opened, inmates Moreno and Savala exited the room visibly drunk and angry. Moreno and Savala approached the door of another inmate and began pounding on the door and threatening the inmate inside. Another correctional officer escorted Moreno and Savala back to their room and Ferguson let them back in. Plaintiff complains that Ferguson failed to place Moreno and Savala in restraints and made no attempt to "de-escalate their agitated state." (Am. Compl. 4:23-24, ECF No. 13.)
Within 30 to 60 seconds after Ferguson let Moreno and Savala back into their room, Moreno and Savala began attacking Plaintiff. Pelaya and Salazar joined in on the attack. The attack lasted for approximately 30 minutes. The attack was briefly interrupted when Defendant Ferguson announced count time and counted the inmates in the room. In order to hide the incident, Plaintiff was rolled into her bunk and the attackers covered Plaintiff with a sheet. Plaintiff complains that Ferguson failed to properly inspect the room because he should have required the inmates to sit on their bunks to be counted. Ferguson counted Plaintiff while she was lying in a bunk covered with a sheet and as a result did not notice that Plaintiff had been beaten. Ferguson moved on down the hall and the four attackers resumed beating Plaintiff. Plaintiff eventually cried out for help and was heard by correctional officer Johns. Ferguson and another correctional officer then arrived and Plaintiff was transported to a hospital.
Plaintiff claims that Defendant Ferguson deliberately ignored signs that Plaintiff was at risk. Plaintiff claims Ferguson was aware that two of the attackers, Moreno and Savala, were homosexual partners whose "aggressive behavior was heightened in the presence of each other." (Am. Compl. 7:8-13, ECF No. 13.) Allegedly, Ferguson was also aware that Moreno and Savala were violent predators. Plaintiff alleges that there were eight inmates housed in the same room as Plaintiff and the four attackers had a history of violently abusing the other four roommates. Plaintiff claims that one roommate, inmate Morales, had been attacked by the same four attackers four days earlier. Plaintiff complains that Ferguson failed to properly investigate the attack to determine the identity of the attackers and take steps to protect Plaintiff from future attacks. Plaintiff also complains that Ferguson deliberately ignored the risk of harm by allowing Moreno and Savala to enter the room unrestrained when they were clearly intoxicated and exhibited violent behavior. Plaintiff also complains that Ferguson failed to properly perform count, prolonging the attack.
Plaintiff alleges that Defendant Scott is the "Program Lieutenant of Delta Yard where Plaintiff was housed" and had been repeatedly summoned to Plaintiff's housing unit in response to violent incidents involving inmates Savala and Moreno. Plaintiff complains that Scott failed to separate Savala and Moreno and thereby "allowed their reign of abuse to continue." (Am. Compl. 9:23-27, ECF No. 13.) Plaintiff contends that Scott developed a friendship with Savala and tolerated her violent behavior and homosexual relationship with Moreno. On one occasion, after Scott was called to address Savala and Moreno's violent behavior, Scott allegedly stated, "I'm getting sick of always being called to this room. Handle your business." (Am. Compl. 10:15-18.) Plaintiff complains that Scott's statement is commonly understood in prison parlance as instructing victims such as Plaintiff to fight and defend themselves.
Plaintiff further alleges that two weeks before she was attacked, one of Plaintiff's roommates informed Defendant Souza, a staff psychologist, about Moreno, Savala, Pelaya, and Salazar's "heightened physical violence, threats, and constant aggressive behavior." (Am. Compl. 11:4-8, ECF No. 13.) Plaintiff's roommate, who had been injured by Moreno and Savala in an earlier incident, showed her injuries to Souza and asked for help. Souza informed her that Souza would report the incident to her supervisor, Defendant Schulte. Souza reported the incident to Schulte. However, Plaintiff complains that Schulte was about to begin a two-week vacation and told Souza that the issue would be dealt with after she returned from vacation. Plaintiff complains that Souza failed to inform any other prison officials about the threat and as a result, Plaintiff was attacked while Schulte was on vacation.
Plaintiff alleges that Defendant Schulte is the senior psychologist at Valley State Prison for Women. Plaintiff complains that Schulte was made aware of the risk of violence against Plaintiff and failed to address the situation in a prompt manner. Instead, Schulte went on vacation for two weeks with the intention of addressing the situation after she returned, causing Plaintiff to be attacked while she was away.
B. Defendants' Motion to Dismiss
Defendants argue that they are entitled to dismissal under Federal Rule of Civil Procedure 12(b)(6) because Plaintiff fails to state a claim on which relief can be granted. Defendants also argue that Plaintiff failed to exhaust her administrative remedies prior to filing suit, as required by the Prison Litigation Reform Act ("PLRA").
Defendants argue that Plaintiff fails to state a claim because Plaintiff's complaint fails to allege that Defendants "were aware of a specific, impending, and substantial threat to [Plaintiff's] safety." (Defs.' Notice of Mot. and Mot. to Dismiss; Mem. of P. & A. 5:10-12, ECF No. 20.) Defendants contend that awareness of a mere possibility of violence or the occurrence of a random act of violence is not sufficient to impose liability on Defendants. Defendants argue that Plaintiff's Eighth Amendment rights were not violated when they failed to respond ...