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Bass v. Neotti

August 23, 2010

BRIAN ALLEN BASS, PLAINTIFF,
v.
GEORGE NEOTTI, WARDEN, ET AL., DEFENDANT.



The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge

ORDER RE: DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S COMPLAINT [Doc. No. 23]

Plaintiff Brian Allen Bass, a California state prisoner proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983 against various defendants, alleging three causes of actions arising out of violations of his First and Eighth Amendment rights. Defendants move to dismiss Plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a plausible claim for relief. Plaintiff filed an opposition to the motion, to which Defendants replied. For the following reasons, the Court GRANTS IN PART and DENIES IN PART Defendants' motion.

BACKGROUND

Plaintiff is an inmate committed to the custody of the California Department of Corrections, and is currently housed at California State Prison in Vacaville, California. Plaintiff complains of events which allegedly occurred while he was incarcerated at R. J. Donovan Correctional Facility, in San Diego County, California.*fn1

According to Plaintiff, on October 15, 2008, six correctional officers, including defendants Vanderweide, Marshall, Vasquez, McCurty, Montoya, and Thiefe (the "officer defendants" hereinafter) put Plaintiff "on the wall" because he called C.O. Marshall a name. Plaintiff asserts that C.O. Marshall called the "yard crew" and told them that he threatened her, which Plaintiff claims he did not do. Complaint, 4. Plaintiff alleges that after being placed against the wall, the officers asked him why he had threatened C.O. Marshall and then C.O. Vanderweide hit him in the testicles three times, while the other officers allowed it to happen and watched. After being hit by C.O. Vanderweide, Plaintiff alleges that all six officers beat him with batons and their fists, driving him to the ground. Once on the ground, Plaintiff claims that C.O. Marshall and C.O. Montoya hit him with batons on his legs, buttocks, and body, repeatedly, while the other officers hit him with their fists. Plaintiff asserts that Warden Neotti and Director Cate (the "supervisor defendants" hereinafter) allowed the "untrained" officers to use "this kind of force," "violating my freedom of speech." Id.

After the beating, Plaintiff claims it took approximately three hours and fifteen minutes before he received medical care for his injuries. Plaintiff alleges that he was examined in a dark room with only a flashlight, and although he advised "Nurse Evans" regarding the injury to his testicles, the nurse did not acknowledge him, write anything down about it, or do anything. Complaint, 5. According to Plaintiff, he tried to see a doctor about the injury to his testicles but he was never given any health care forms. On November 4, 2008, he finally received a form and filled it out. Plaintiff does not indicate whether he eventually received further medical care related to the injuries complained of herein.

Plaintiff alleges that he exhausted his administrative remedies by seeking relief with two CDC 602 Inmate Appeals to the third level of review for the beating, the injury to his testicles, his freedom of speech, and not having an independent exam. Plaintiff states that one appeal was denied and the other was screened out. Plaintiff further alleges that "nothing was done about medical care 602 appeal." Complaint, 6. Defendants do not challenge Plaintiff's assertion that he properly exhausted his claims prior to filing the instant lawsuit.

Based on the above allegations, Plaintiff asserts three causes of action: (1) violation by all Defendants of his Eighth Amendment right to be free from cruel and unusual punishment due to the officer defendants' use of excessive force and the supervisor defendants' failure to train the officer defendants; (2) violation of his First Amendment right to freedom of speech by all Defendants; and (3) violation by the officer defendants of his Eighth Amendment rights due to the inadequate medical care he received for his alleged injuries.

LEGAL STANDARDS

1. Federal Rule of Civil Procedure 12(b)(6)

Defendants argue that they are entitled to dismissal under Federal Rule of Civil Procedure 12(b)(6) on the ground that Plaintiff's complaint fails to state a claim upon which relief can be granted under Section 1983. When ruling on a motion to dismiss under Rule 12(b)(6), "[a]ll allegations and reasonable inferences are taken as true, and the allegations are construed in the light most favorable to the non-moving party." Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004) (citing Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001)). However, "conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss." Id. "Dismissal is proper under Rule 12(b)(6) if it appears beyond doubt that the non-movant can prove no set of facts to support its claims." Id.

To survive a motion to dismiss for failure to state a claim, a complaint must meet the pleading standard set by Federal Rule of Civil Procedure 8. Under 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)(2). "[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). "[A] complaint [that] pleads facts that are 'merely consistent with' a defendant's liability . . . 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557). Further, although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true. Id. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (quoting Twombly, 550 U.S. at 555).

2. Standards Applicable to Pro Se Litigants

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 Dep't, 839 F.2d 621, 623 (9th Cir. 1988). The rule of liberal construction is "particularly important in civil rights cases." Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). In giving liberal interpretation to a pro se civil rights complaint, courts may not "supply essential elements of claims 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.; see also Jones v. Cmty. Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984) (finding conclusory allegations unsupported by facts insufficient to state a claim under § 1983). "The plaintiff must allege with at least some degree of particularity overt acts which defendants engaged in that support the plaintiff's claim." Jones, 733 F.2d at 649 (internal quotation omitted).

The court must give a pro se litigant leave to amend his complaint "unless it determines that the pleading could not possibly be cured by the allegation of other facts." Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (quotation omitted) (citing Noll v. Carlson, 809 F.2d 1446, 1447 (9th Cir. 1987)). Thus, before a pro se civil rights complaint may be dismissed, the court must provide the plaintiff with a statement of the complaint's deficiencies. Karim-Panahi, 839 F.2d at 623-24. But where amendment of a pro se ...


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