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Homer Tyrone Lewis v. Derral G. Adams

October 5, 2011

HOMER TYRONE LEWIS,
PLAINTIFF,
v.
DERRAL G. ADAMS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER DENYING MOTION TO FILE SUPPLEMENTAL OPPOSITION AND STRIKING SUPPLEMENTAL OPPOSITION (DOCS. 33, 34) FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANTS' MOTION TO DISMISS BE GRANTED (DOC. 21) OBJECTIONS, IF ANY, DUE WITHIN TWENTY-ONE DAYS

I. Background

Plaintiff Homer Tyrone Lewis ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff's first amended complaint against Defendants Adams, Junious, Lopez, Davis, Morrison, Tamayo, Johnson, and De Azevedo for deliberate indifference in violation of the Eighth Amendment, and against Defendants Adams, Junious, Lopez, and Davis for retaliation in violation of the First Amendment because of a prison transfer. Pending before the Court is Defendants' motion to dismiss certain claims for failure to state a claim, filed March 14, 2011.

Defs.' Mot. Dismiss, Doc. 21. Plaintiff filed his opposition on May 17, 2011. Pl.'s Opp'n, Doc. 27. On May 24, 2011, Defendants filed their reply. Defs.' Reply, Doc. 28. The matter is submitted pursuant to Local Rule 230(l).

On August 5, 2011, Plaintiff filed a motion requesting that the Court grant Plaintiff leave to file a supplemental opposition. Plaintiff also filed his supplemental opposition on August 4, 2011. Plaintiff is in effect requesting leave to file a surreply, a reply to Defendants' reply. Surreplies are generally not permitted in this Court. See Local Rule 230(l). The Court neither requested nor granted leave for Plaintiff to file a surreply. Accordingly, Plaintiff's motion to file a supplemental opposition is DENIED and the supplemental opposition is HEREBY ORDERED stricken.*fn1

II. Failure To State A Claim

A. Legal Standard

"The focus of any Rule 12(b)(6) dismissal . . . is the complaint." Schneider v. California Dept. of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998). In considering a motion to dismiss for failure to state a claim, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the party opposing the motion, and resolve all doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). The federal system is one of notice pleading. Galbraith v. County of Santa Clara, 307 F.3d 1119, 1126 (9th Cir. 2002).

Pursuant to 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). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'"

Id. (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id.

B. Summary Of First Amended Complaint

On October 2, 2008, Plaintiff sent a letter of complaint as confidential mail to Defendants Adams, Junious, Lopez, Davis, Morrison, and Tamayo due to serious threats of violence against Plaintiff by Protective Housing Unit ("PHU") inmates. First Am. Compl. ("FAC") ¶ 14. Plaintiff informed Defendants that PHU inmates James Prado and Mike Markhasev had threatened Plaintiff with violence. Id. Plaintiff was never notified by any Defendants that they had received the letter until three weeks later. Id.

On October 23, 2008, Defendants A. Morrison and G. Tamayo failed to supervise the PHU inmates and as a result of Defendants failure to intercede, Plaintiff was assaulted by inmates Prado and Markhasev. Id. ¶ 15. Plaintiff sustained cuts to his mouth and face, bruises and swelling on his face and body, and was kicked in the groin. Id. Following examination by medical personnel, Defendant Morrison summoned Plaintiff to the sergeant's office and informed Plaintiff that Defendant Morrison needed to interview Plaintiff regarding his letter. Id. Defendant Morrison informed Plaintiff that Defendants Adams, Junious, Lopez, and Davis as well as Defendant Morrison were aware of Plaintiff's letter of complaint and were aware of the threats of violence against Plaintiff by inmates Prado and Markhesev. Id. Defendant Morrison told Plaintiff that he had handled himself without help from custody staff, and to stop whining to Defendant Morrison's superiors regarding the lack of supervision by Defendants Morrison and Tamayo, because "stuff happens" at Corcoran State Prison. Id.

Plaintiff was transferred from PHU to ad seg and remained in ad seg from October 23, 2008 until December 19, 2008 before receiving an Institutional Classification Committee hearing before Defendants Junious, Lopez, Davis, De Azevedo, and P. Johnson. Id. ΒΆ 17. Defendant De Azevedo stated to Plaintiff on February 18, 2009 that due to Plaintiff's staff complaints, civil litigation, and Office of Internal Affairs ("OIA") and Investigative Services Unit ("ISU") investigations against staff, ...


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