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Richard Dunmore v. G.J. Janda

September 26, 2011


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



Plaintiff, Richard Dunmore ("Plaintiff"), a state prisoner proceeding pro se, filed this action under 42 U.S.C. § 1983. Plaintiff filed a First Amended Complaint ("FAC") on October 12, 2010. (Doc. No. 25.). Plaintiff alleges that Defendants deprived him of his Eighth Amendment right to be free from cruel and unusual punishments. Specifically, Plaintiff alleges Defendants were deliberately indifferent to his medical needs, used excessive force, subjected him to tight restraints, and that the conditions of confinement constituted cruel and unusual punishment. On November 29, 2010, Defendants T. Barajaz, Sgt. Ellis, J. Partida, Fregroso, T. Molina, A. Luck, and G.J. Janda (collectively "Defendants") filed a motion to dismiss the FAC for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). (Doc. No. 34). Defendants also moved to dismiss on the basis of qualified immunity. (Id.) On February 18, 2011, Plaintiff filed an opposition to Defendants' motion to dismiss the FAC ("Plaintiff's Opposition"). (Doc. No. 38.). Pending before the Court is Defendant's 12(b)(6) motion to dismiss for failure to state a claim.


At all relevant times, Plaintiff was incarcerated at Calipatria State Prison. (FAC at 1.). In his FAC, the Plaintiff alleges the following supporting facts:

On or about April 13, 2008 at 10:00 a.m., a correctional officer sprayed Plaintiff's unclothed body with pepper spray after Plaintiff refused to open his mouth during a full-body search. (Id. at 3.) Plaintiff acknowledges that this initial use of force was justified. (Id. at 19.)

Three to five minutes later, Defendant Partida ("Partida") escorted Plaintiff to a holding cell in the prisons' Facility-A satellite clinic. (Id. at 3-4.) The holding cell was equipped with a sink. (Id.) While in the holding cell Plaintiff exclaimed that he was "burning up from head to toe" and requested that Partida provide him with a decontamination shower. (Id. at 5.) Partida told Plaintiff he would look for some clean underwear and suggested that, in the interim, Plaintiff use the sink to wash his face and Id.) Partida also said that after a nurse examined Plaintiff, Partida would "see about getting [him] into a shower to get cleaned-up." (Id.) Plaintiff contends the sink's water pressure was inadequate to remove the pepper spray from his face, eyes, and body. (Id.) Approximately fifteen minutes after placing Plaintiff in the holding cell, Partida provided him with clean underwear. (Id.)

Plaintiff states that during the initial 45 to 60 minutes in the holding cell his "eyes were burning and began swelling" and "his entire body was red and felt like it was on fire- including his private parts." (Id.) He also "had difficulty breathing and was constantly coughing." (Id.) Plaintiff informed Partida numerous times that he was in extreme pain. (Id.)

Approximately 90 minutes after arriving at the clinic Plaintiff was seen by Defendant Molina ("Molina"), a registered nurse. (Id. at 6) Plaintiff informed Molina that he was experiencing significant pain and requested decontamination. (Id.) Molina suggested he utilize a small vent at the top of the holding cell "to try and see if [he] could get some air." (Id.) Plaintiff informed Molina that the vent did not provide any relief, that he had been in pain for over an hour, and that "Partida promised me a shower after I saw the nurse." (Id. at 7.) Aside from a brief conversation with Partida in Spanish, Molina left without further interaction. (Id.) Plaintiff claims that although he disclosed the extent of pain he was in, Molina falsified the CDCR 7219 Medical Report by writing "no comment" in the space reserved for comments made by the injured individual. (Id.) Molina also falsified the medical report by indicating Plaintiff was decontaminated, that there were no visual after-effects stemming from exposure to pepper spray, and that Plaintiff's body was free of pepper spray residue. (Id.) In total, Plaintiff' interaction with Molina lasted a five minutes. (Id.)

Partida continued to witness Plaintiff's obvious pain over the next 90 minutes but repeatedly ignored requests for decontamination. (Id.) Approximately three hours after Plaintiff arrived at the clinic, Defendant Fregoso ("Fregoso") arrived and performed a full body search of Plaintiff. (Id.) After the search Plaintiff told Fregoso that he was in extreme pain because he had been pepper-sprayed and not yet decontaminated. Fregoso replied, "stop talking, that's not my problem." (Id. at 7-8.) Fregoso placed Plaintiff in restraints, used duct tape to seal Plaintiff's underwear to his body, and transported him to a cell in the Administrative Segregation Unit ("ASU"). (Id. at 8.) Plaintiff was placed in "Contraband Watch room CW-002." (Id.) The holding cell's only amenity was a wooden bench. (Id.) Notably, the cell lacked a sink, toilet, or ventilation duct.

Once Plaintiff was in CW-002, Fregoso removed the duct tape, underwear, and restraints. (Id. at 8.). He gave Plaintiff two t-shirts and two jumpsuits, and directed Plaintiff to dress himself, first in the t-shirts and followed by the jumpsuits so that he was essentially in a straight-jacket. (Id.) Duct-tape was wrapped around Plaintiff's waist and ankles-effectively sealing the bottom of the jumpsuit. (Id.) Plaintiff was also placed in wrist, ankle, and waist restraints. (Id.) The restraints were augmented with padlocks that shortened the distance between Plaintiff's ankles to "no more than three inches" and the distance between his wrists and sides to "mere millimeters." (Id.) Plaintiff was ordered to complete three bowel movements in order for him to be eligible for release from contraband watch. (Id. at 9.)

In addition, several unnamed "Doe" defendants were posted outside Plaintiff's cell from the evening of April 13, 2008, until the morning of April 15, 2008. (Id. at 10-12.) Plaintiff had difficulty sleeping, was denied adequate water, and was bothered by the tight restraints. (Id.) Despite continually complaining of pain, Plaintiff was not given a decontamination shower during this entire time period.

On the morning of April 15, Defendant Barajaz ("Barajaz") was stationed outside of Plaintiff's cell at 6:00 a.m. (Id. at 12.) Barajaz asked whether Plaintiff wanted breakfast, but after receiving no response he took Plaintiff to a nurse for examination. (Id. at 12-13.) The nurse took Plaintiff's blood pressure and looked at his eyes. (Id.) After the examination Plaintiff was returned to his cell. (Id. at 13.) About two hours later, Barajaz escorted Plaintiff to the prison's Central Infirmary. (Id.) This time Plaintiff was examined by nurse Auger ("Auger"). (Id.) Auger asked why Plaintiff's eyes were "so red." (Id.) Plaintiff explained that he "had been pepper sprayed and never decontaminated." (Id.) Plaintiff also told her that he did not sleep because of the pain. (Id.) Auger asked Barajaz if she could decontaminate Plaintiff. (Id.) Barajaz told Auger that "it would be better to just let [the pepper spray] take its course and wear off on its own." (Id.) Barajaz did, however, permit Auger to rinse Plaintiff's eyes with some optical solution. (Id.)

Hours later, during dinner, Barajaz provided Plaintiff with enough water to "quench his thirst." at 14.) This was only the second time Plaintiff received water since being placed in ASU. (Id.) Later, Plaintiff asked Barajaz to loosen the restraints. (Id.) Barajaz refused, telling Plaintiff " that's not going to happen until you finish your three bowel movements." (Id.) After completing his first bowel movement, Plaintiff asked to wash his hands. (Id.) Barajaz refused the request and mocked Plaintiff, saying: "if you want me to spit on your hands." (Id.)

At 10:00 p.m. Barajaz was relieved of his post. (Id.) Several unnamed defendants were stationed outside Plaintiff's cell from April 16, 2008 at 10:00 p.m. until April 18 at 2:00 p.m. All unnamed defendants refused to loosen Plaintiff's restraints. (Id.)

On April 18, 2008 at about 2:00 p.m. Defendant Luck ("Luck") began his shift. (Id. at 16.)

Plaintiff immediately told Luck that he was prepared to provide his third and final bowel movement.

) Luck walked away without comment. (Id.) When Luck returned 45 minutes later Plaintiff reminded him that he was ready to deliver his final bowel movement. (Id.) Luck replied, "hold it for a while-I just came on-I need this overtime." (Id.) Luck finally provided Plaintiff with a receptacle at 8:30 p.m. (Id. at 17.) At this time Luck informed Defendant Sergeant Ellis ("Ellis") that Plaintiff completed his final bowel movement. (Id.) Luck and Ellis told Plaintiff that they could not release him from contraband watch because a statewide lock-down was beginning. (Id.) Plaintiff requested that, since he successfully completed contraband watch, at a minimum Luck and Ellis should remove the restraints. (Id.) Both Luck and Ellis stated they could not comply with his request. (Id.) Although Plaintiff completed the three required bowel movements he was not released from the restraints for another 24 hours.

Finally, on April 19, 2008 at 8:30 p.m., Plaintiff was released from contraband watch. (Id.)


Defendants argue that this Court should dismiss the FAC in its entirety for failing to state a claim pursuant to Rule 12(b)(6). In the alternative, Defendants argue that as prison officials they are entitled to qualified immunity.

A. Fed.R.Civ.P. 12(b)(6) Standard of Review

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) "tests the legal sufficiency of a claim" Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A Rule 12(b)(6) dismissal may be based on either a " 'lack of a cognizable legal theory' or 'the absence of sufficient facts alleged under a cognizable legal theory.' " Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121-22 (9th Cir. 2008) (quoting Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990)). A motion to dismiss should be granted if plaintiff fails to proffer "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "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." Ashcroft v. Iqbal, 556 U.S. ----, 129 S.Ct. 1937, 1949 (2009)(quoting Twombly, 550 U.S. at 556, 570).

While allegations of material fact are accepted as true and construed in the light most favorable to the nonmoving party, Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996), the court need not accept as true generic legal conclusions, unwarranted deductions of fact or unreasonable inferences. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001); Iqbal, 129 S.Ct. at 1949 ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."); Twombly, 550 U.S. at 555 (on motion to dismiss court is "not bound to accept as true a legal conclusion couched as a factual allegation."). "The pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation." Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555).

Thus, "[w]hile legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then decide whether they plausibly give rise to an entitlement to relief." Iqbal, 129 S.Ct. at 1950. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that defendant has acted unlawfully." Id. at 1949. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of 'entitlement to relief.'" Id.; Twombly, 550 U.S. at 570 (when a plaintiff has not "nudged [his] claims across the line from conceivable to plausible, [his] complaint must be dismissed.").

"In sum, for a complaint to survive a motion to dismiss, the non-conclusory 'factual content,' and reasonable inferences [drawn] from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009) (quoting Iqbal, 129 S. Ct. at 1949).

In addition, factual allegations asserted by pro se petitioners, "however inartfully pleaded," are held "to less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972). Thus, where a plaintiff appears pro se in a civil rights case, the Court must construe the pleadings liberally and afford plaintiff any benefit of the doubt. See Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988). "A complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).

B. 42 U.S.C § 1983 Standard

To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law. Parratt v. Taylor, 451 U.S. 527, 535 (1981) (overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 330-331 (1986)); Flagg Bros., Inc. v. Brooks, 436 U.S. 149 (1978).

Plaintiff alleges that Defendants violated his Eighth Amendment right to be free from cruel and unusual punishments. (FAC at 17.) Specifically, Plaintiff claims that Defendants violated his Eighth Amendment right by: (1) failing to provide him with adequate medical care, (2) using excessive force, (3) keeping him in tight restraints, and ...

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