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Bardo v. Subia

October 22, 2010

ROBERT J. BARDO, PLAINTIFF,
v.
SUBIA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER AND FINDINGS AND RECOMMENDATIONS

I. Introduction

Plaintiff is a state prisoner proceeding without counsel with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is the motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) filed on behalf of defendants Johnson, Palubicki, Long, Subia, Machado, Martel, Martinez, Meza and Tilton. After carefully considering the record, the undersigned recommends that defendants' motion be denied.

II. Legal Standard for Motion to Dismiss

A motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the sufficiency of the pleadings set forth in the complaint. Vega v. JPMorgan Chase Bank, N.A., 654 F. Supp. 2d 1104, 1109 (E.D. Cal. 2009). Under the "notice pleading" standard of the Federal Rules of Civil Procedure, a plaintiff's complaint must provide, in part, a "short and plain statement" of plaintiff's claims showing entitlement to relief. Fed. R. Civ. P. 8(a)(2); see also Paulsen v. CNF, Inc., 559 F.3d 1061, 1071 (9th Cir. 2009). "A complaint may survive a motion to dismiss if, taking all well-pleaded factual allegations as true, it contains 'enough facts to state a claim to relief that is plausible on its face.'" Coto Settlement v. Eisenberg, 593 F.3d 1031, 1034 (9th Cir. 2010) (quoting Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)). "'A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806, 812 (9th Cir. 2010) (quoting Iqbal, 129 S.Ct. at 1949). The court accepts "all facts alleged as true and construes them in the light most favorable to the plaintiff." County of Santa Clara v. Astra USA, Inc., 588 F.3d 1237, 1241 n.1 (9th Cir. 2009). The court is "not, however, required to accept as true conclusory allegations that are contradicted by documents referred to in the complaint, and [the court does] not necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations." Paulsen, 559 F.3d at 1071 (citations and quotation marks omitted). The court must construe a pro se pleading liberally to determine if it states a claim and, prior to dismissal, tell a plaintiff of deficiencies in his complaint and give plaintiff an opportunity to cure them if it appears at all possible that the plaintiff can correct the defects. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000).

In ruling on a motion to dismiss pursuant to Rule 12(b)(6), the court "may generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice." Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 899 (9th Cir. 2007) (citation and quotation marks omitted). However, under the "incorporation by reference" doctrine, a court may also review documents "whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the [plaintiff's] pleading." Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005) (citation omitted and modification in original). The incorporation by reference doctrine also applies "to situations in which the plaintiff's claim depends on the contents of a document, the defendant attaches the document to its motion to dismiss, and the parties do not dispute the authenticity of the document, even though the plaintiff does not explicitly allege the contents of that document in the complaint." Id.

III. Plaintiff's Claims

This action is proceeding on the second amended complaint filed April 6, 2010.

Plaintiff alleges that on July 27, 2007, he was attacked by inmate Garafolo on his way to breakfast. Plaintiff alleges that the attack was unprovoked and that inmate Garafolo ambushed plaintiff from behind, stabbing him several times. Plaintiff alleges that he had never before exchanged words with inmate Garafolo.

Plaintiff alleges that at the time of the attack, he was housed on a sensitive needs yard. Plaintiff alleges that he (plaintiff) had been convicted of murder following a highly publicized trial. Plaintiff alleges that inmate Garafolo has a prison record which includes the murder of two inmates and numerous prison weapons possession convictions.

Plaintiff alleges that defendants violated his Eighth Amendment right to be free from inmate violence. In particular, plaintiff alleges that defendants Subia, Meza, Johnson and Martel classified inmate Garafolo as appropriate for placement on the sensitive needs yard despite knowing of his record of prison violence. Plaintiff alleges that defendants Machado, Martinez and Long put inmate Garafolo on the sensitive needs yard despite being aware of his record of prison violence. Plaintiff alleges that defendant Palubicki approved inmate Garafolo's placement on the sensitive needs yard despite being aware of his record of prison violence. Plaintiff alleges that defendant Tilton, the former Director of the California Department of Corrections and Rehabilitation ("CDCR"), knowingly enforced the policy of classifying violent inmates on sensitive needs yards. Plaintiff alleges that defendant Tilton's enforcement of this policy led to the attack by inmate Garafolo.

IV. Legal Standard for Eighth Amendment Claim

"'[P]rison officials have a duty ... to protect prisoners from violence at the hands of other prisoners.'" Farmer v. Brennan, 511 U.S. 825, 833 (1994) (internal citation omitted). "[A] prison official violates the Eighth Amendment when two requirements are met. First, the deprivation alleged must be, objectively, 'sufficiently serious' ... For a claim (like the one here) based on a failure to prevent harm, the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm." Id., at 834. Second, "[t]o violate the Cruel and Unusual Punishments Clause, a prison official must have a 'sufficiently culpable state of mind' ... that state of mind is one of 'deliberate indifference' to inmate health or safety." Id. The prison official will be liable only if "the official knows of and disregards an excessive ...


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