The opinion of the court was delivered by: Hon. Anthony J. BattagliaU.S. District Judge
ORDER GRANTING MOTION FOR PARTIAL DISMISSAL (ECF No. 16)
Plaintiff Bruce Kendall Benn ("Benn"), a state prisoner proceeding pro se and in forma pauperis with this 42 U.S.C. § 1983 civil rights action, alleges violations of the Fifth, Eighth, and Fourteenth Amendments arising from an incident on May 19, 2009 at Calipatria State Prison, where he was then confined. Benn alleges correctional officers E. Duarte and E. Garcia used excessive force by spraying oleoresin capsium ("OC") into his cell while investigating a rules infraction report that he and his cell mate possessed a cellular phone. He names as additional defendants five other prison officials who participated in the subsequent administrative review process. He sues each defendant in his individual and official capacities. Benn seeks restoration of credits and points he lost when he was found guilty of the rules infraction, removal of all documents from his file related to the event, a judicial declaration "that the acts and omissions described [in the Complaint] violated Plaintiff's Constitutional and State's rights," a permanent injunction vaguely ordering all the defendants "to desist their transgression of aiding and abet[t]ing any actions known to be a violation of the Department of Corrections governing policy," and monetary damages against each defendant in amounts ranging from $75,000 to $375,000. (ECF No. 1 at 19-20.)*fn1
This matter is before the Court on Defendants' Motion To Dismiss
("Motion") pursuant to Federal Rule of Civil Procedure ("Rule")
12(b)(6). (ECF No. 16.) They contend they are immune from suit for
money damages in their official capacities, and the complaint fails to
state facts sufficient to support a cognizable claim for relief
against any of the defendants except Duarte and Garcia. (ECF No. 16-1,
3:18-21.) They argue officers Duarte and Garcia should be required to
answer the excessive force claim "under the Eighth Amendment only."
(Id., 8:6-8.) They also argue dismissal of all claims against the five
defendants other than Duarte and Garcia should be with prejudice
because the claims are frivolous and unsupported by law.*fn2
(Id., 8:2-6, citing Lopez v. Smith, 203 F.3d 1122, 1129 (9th
Cir. 2000) ("Courts are not required to grant leave to amend if a
complaint lacks merit entirely").) Benn requested and was granted an
extension of time to respond to the Motion. (ECF Nos. 17, 18.) The
January 23, 2012 deadline has passed, with no response from Benn
before or since.
Benn alleges correctional officer Duarte, aided and abetted by officer Garcia, used excessive force in spraying two cans of OC directed at Benn's face and torso through the bars of his secured cell door when they arrived to conduct a search for a cellular phone the inmates were suspected of possessing. (ECF No. 1 at 13-15.) No phone was recovered, but Benn was transferred to Administrative Segregation and lost custody credits after a disciplinary hearing found him guilty of the infraction, and his subsequent administrative grievance appeals were denied. He describes the incident in detail (id. at 14-16), allegations the Court accepts as true for purposes of deciding the Motion. See Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996).
Benn recites that Officers Duarte and Garcia approached his prison cell on May 19, 2009 to conduct the cell phone search. He contends the officers' reported version of events was "embellished . . . in an effort to justify their Excessive Use of Force." (ECF No. 1 at 14.) The officers reported that after they handcuffed Benn's cell mate, they ordered Benn to come to the cell door to be handcuffed; they reported "Plaintiff places his hand through the food port and then pulled away his hand to retrieve a cell phone from his waistband and threw it inside the toilet and attempted to flush the toilet;" while Benn engaged in that conduct, his cell mate was obstructing the officers' view into the cell; and Duarte discharged one continuous burst of OC spray towards Benn "via the food port." (ECF No. 1 at 14-15.)
Benn refutes factual details of the officer's reported version of the incident. Among other things, he represents his cell mate could not have been obstructing the officers' view because Benn was closest to the cell door, as demonstrated by where he received the spray (EFC No. 1 at 15-16), the pipe drains at Calipatria are equipped with baskets to retrieve items inmates attempt to dispose of, and no cell phone was recovered in the cell, yet he and his cell mate were "removed from General population and [were] transferred to Administrative Segregation (Adseg) Housing Unit [even] though there were [sic] no evidence to substantiate the charge of 'Possession of a Cellular Phone' " (id. at 13). He alleges the officers' conduct also violated provisions of the California Code of Regulations, Title 15, forbidding guards from "non-professional" conduct against prisoners and from using "more force than is objectively reasonable." (Id. at 4, 3.) He states that officer Duarte also "[i]n bad faith . . . turn[ed] on the hot water instead of the cold water in the shower to decontaminate Plaintiff from the O.C. spray which was against the institution's governing policy." (Id. at 16).
In addition to officers Duarte and Garcia, Benn names five other defendants: J. Kellerman, G. J. Janda, Larry Smalls, R. Manuel, and Matthew Cate. Those individuals were involved in the administrative hearing of the rules violation and Benn's appeals of the result. He alleges each of those defendants, in their official and individual capacities, acting under color of law, violated due process and his right to be free from cruel and unusual punishment guaranteed by the Fifth, Eighth, and Fourteenth Amendments as well as the due process clause of the California Constitution. He accuses each of failing to intervene to rectify Duarte's and Garcia's alleged constitutional violations. In convicting him of the rules violation and denying his grievance at each stage of review, Benn alleges they acted without evidence to substantiate the charge and reached erroneous conclusions on his excessive force claim. (ECF No. 1 at 17-18.)
In particular, Benn names J. Kellerman, who "in the capacity of supervisor under color of law . . . [,] learn[ed] of the violation of Plaintiff's Due Process rights allotted him by the United States Constitution 5th[,] 8th and 14th Amendment[s]" and the California Constitution, but "ignore[d] and fail[ed] to act to a safety problem of life endangerment." (Id. at 6.) He also alleges Kellerman signed a Rule Violation Report "in and of itself a violation" because it "ignore[d] the policy governing the Rules and Regulations of Excessive Use of Force as specif[ied] in the California Code of Regulations Title 15, section 3268" prohibiting " 'the use of more force than is objectively reasonable,' " and alleges he "should be held respons[i]ble and liable due to negligence of duty as supervisor [and] captain of Facility B." (ECF No. 1 at 5-6.)
Benn names G. J. Janda, "Chief Deputy Warden" of the prison, alleging he signed a Rules Violation Report as "Chief Disciplinary Officer" and signed Benn's inmate grievance appeal, denying it at the second level of review. (ECF No. 1 at 7.) He alleges Janda "ignor[ed] Plaintiff's objections to the actions of Defendants E. Duarte and E. Garcia, that purposefully inflicted harm of cruel and unusual punishment" and "ignore[d] Plaintiff's Due Process rights" under the Fifth, Eighth, and Fourteenth Amendments, for which he should "be held culpable due to negligence of duty to intervene . . . ." (Id.)
Benn names Larry Small, the "Warden and Chief Executive Officer" at Calipatria, "responsible for the custody, treatment, training and discipline of all inmates." (ECF No. 1 at 8.) Small presided over Benn's Administrative Segregation Unit Committee Hearing and "was made aware of the events . . . . involving Correctional Officers E. Duarte and E. Garcia purposefully inflicting harm of Cruel and Unusual Punishment when spraying Plaintiff with two (2) cans of O.C. spray while still in his cell, posing no imminent threat of harm or injury to either correctional officer . . . or to Plaintiff's cell-mate or himself." (Id.) Benn alleges Small should be held liable for his wrongful transfer to administrative segregation after he was found guilty of the rules violation, in purported violation of the Fifth, Eighth, and Fourteenth Amendments, "due to negligence of duty to intervene with the trust and authority of his position" in Duarte's and Garcia's alleged misconduct. (Id. at 8-9.)
Benn names R. Manuel, identified as the Department of Corrections Appeals Examiner who reviewed Benn's grievance file but "ignore[d] Plaintiff's objections and proofs presented" regarding the unconstitutional "transgressions" of defendants Duarte and Garcia, whereas he should have "intervene[d] with the authority given him by the Department of Corrections." (ECF No. 1 at 9-10.)
Finally, Benn names Matthew Cate, Director of the Department of Corrections "legally responsible for the overall operation of the Department and each institution including Calipatria." (ECF No. 1 at 10.) He alleges that he sought relief through the administrative appeal process "to address the matter of Excessive Use of Force by Correctional Officers E. Duarte and E. Garcia," but the Director found Benn's "allegations have been reviewed and evaluated by Administrative staff and an appeal inquiry has been completed at the SLR," then "determined that staff complied with the requirements of CDCR policy, as it relates to the appellant's allegations." (Id. at 11.) Benn contends those findings were erroneous and "negligent to justice" because the Director thereby "denied Plaintiff" his Fifth and Fourteenth Amendment rights, by "agreeing with the Administrative Staff," for which he should "be held liable due to negligence of duty to intervene." (Id. at 11-12.)
Benn invokes federal jurisdiction under 42 U.S.C. § 1983 by contending the officers' use of force "purposefully and recklessly inflicted harm of cruel and unusual punishment with callous indifference." (ECF No. 1 at 5.) He characterizes Defendants' conduct as violations of his due process rights and his right to be free from cruel and unusual punishment under the federal and state constitutions. (Id. at 18.) He alleges the "pattern" of conduct by all the administrative or supervisory defendants "aided and abet[ted] the assault and callous indifference demonstrated by Correctional Officers E. Duarte and E. Garcia" and they should be "held liable" on that theory. (Id. at 12.) He asks this Court to "grant the relief that was denied by the Department of Corrections." (Id. at 18.)
1. Cognizable Prisoner Civil Rights Claims
The Civil Rights Act, 42 U.S.C. § 1983 ("Section 1983"), " 'is not itself a source of substantive rights,' but merely provides 'a method for vindicating federal rights elsewhere conferred.' " Graham v. Connor, 490 U.S. 386, 393-94 (1989) (citation omitted).
[Section 1983] creates a cause of action against a person who, acting under color of state law, deprives another of rights guaranteed under the Constitution. Section 1983 does not create any substantive rights; rather it is the vehicle whereby plaintiffs can challenge actions by governmental officials. To prove a case under section 1983, the plaintiff must demonstrate that (1) the action occurred "under color of state law" and
(2) the action resulted in the deprivation of a constitutional right or federal statutory right. [Citations.]
"Liability under section 1983 arises only upon a showing of personal participation by the defendant," acting under color of state law, that deprived the plaintiff of a federal right. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). A person has acted under color of state law when the individual "exercised power 'possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.' " West v. Atkins, 487 U.S. 42, 49-50 (1988), quoting United States v. Classic, 313U.S. 299, 326 (1941). "[G]enerally, a public employee acts under color of state law while engaged in his official capacity or while exercising his responsibilities pursuant to state law." Id. at 50 (citation omitted). The causation inquiry focuses on the duties and responsibilities of each defendant whose acts or omissions are alleged to have caused a constitutional violation. "A person 'subjects' another to the deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative act, participates in another's affirmative acts, or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
The Prison Litigation Reform Act of 1996 ("PLRA") requires procedural
exhaustion of administrative remedies before an inmate can bring a
court action "with respect to prison conditions under [42 U.S.C. §
1983], or any Federal law . . . ." 42 U.S.C. § 1997e(a); Porter v.
Nussle, 534 U.S. 516, 532 (2002) (the requirement is mandatory,
"applies to all inmate suits about prison life, whether they involve
general circumstances or particular episodes"). An inmate who has
properly availed himself of the administrative processes the state
makes available has satisfied the exhaustion requirement.*fn3
Butler v. Adams, 397 F.3d 1181, 1183 (9th Cir. 2005); see
also Woodford v. Ngo, 548
U.S. 81, 88-91, 85 (2006) (prisoners must exhaust administrative
remedies even where the relief sought (such as monetary damages)
cannot be granted by the administrative process). There is no dispute
Benn exhausted available remedies through the Director's level before
filing suit. (See ECF No. 1 at 17.)
However, "when a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole remedy is a writ of habeas corpus." Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). Although a habeas action and a Section 1983 action are not necessarily mutually exclusive, "when prison inmates seek only equitable relief in challenging aspects of [administrative decisions] that, so long as they prevail, could potentially affect the duration of their confinement, such relief is available under the federal habeas statute[;] [w]hether such relief is also available under § 1983 depends on the application of Heck's favorable termination rule . . . ." Docken v. Chase, 393 F.3d 1024, 1031 (9th Cir. 2004) (emphasis in original) (explaining the distinction between those types of judicial intervention in the context of a challenge to parole denial), citing Heck v. Humphrey, 512 U.S. 477, 481 ("[H]abeas corpus is the exclusive remedy for a ...