The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge
ORDER: (1) GRANTING DEFENDANTS' MOTION TO DISMISS; AND (2) DENYING PLAINTIFF'S MOTION FOR INJUNCTIVE RELIEF (ECF Nos. 69, 75)
Presently before the Court is Magistrate Judge Mitchell D. Dembin's report and recommendations ("R&R") advising the Court to grant Defendants' motion to dismiss Plaintiff's second amended complaint ("SAC") with prejudice. (R&R 10, ECF No. 69.) Also before the Court are Plaintiff's objections to the R&R (Objections, ECF No. 71) and Defendants' reply to Plaintiff's Objections. (Reply, ECF No. 72.) Further, Plaintiff has filed a motion for injunctive relief. (Mot. for Injunction, ECF No. 75.) Magistrate Judge Dembin has also issued an R&R as to this motion (Injunction R&R, ECF No. 77), to which Plaintiff objects (Objections to Injunction R&R, ECF No. 78), and Defendants have replied (Reply to Injunction R&R, ECF No. 79). Having considered the parties' arguments and the law, as well as the recommendation of Magistrate Judge Dembin, the Court GRANTS Defendants' motion to dismiss WITHOUT PREJUDICE and DENIES Plaintiff's motion for injunctive relief.
Plaintiff, state prisoner incarcerated at Richard J. Donovan Correctional Facility ("Donovan") in San Diego, California, proceeding pro se, brings this action under 42 U.S.C. § 1983. Plaintiff alleges that Defendants, Donovan correctional officers, violated his rights under the Eighth Amendment by allowing him to be housed with a mentally unstable inmate who had yet to be classified, and who subsequently drugged and raped him. (SAC, ECF No. 53.)
According to Plaintiff, Defendant Smith brought inmate K. Hopkins into Plaintiff's cell on June 5, 2008. At that time, Hopkins was unclassified, as noted by an "8 x 10 tag" Smith placed on the cell door that stated "Orientation Status," meaning that Hopkins had not yet been evaluated by a prison committee to determine an appropriate housing assignment based on a number of factors.
When Defendant Smith arrived, Plaintiff immediately voiced his
reluctance to be housed with Hopkins because Hopkins "did not appear
sane and he looked physically ill" and because unclassified inmates
were not supposed to be mixed with classified inmates.*fn2
While Plaintiff was attempting further explanation, Defendant
Smith walked away, stating that Hopkins was "a little crazy, but we've
got to house him." The next day, Plaintiff learned that Hopkins had
recently been moved out of his previous cell, on Smith's watch,
because his cell mate had refused to re-enter with Hopkins present.
Hopkins was briefly moved to single cell housing, then placed with
Plaintiff. Plaintiff informed Defendant Smith that Hopkins had been up
all night threatening Plaintiff, making comments such as "I'm going to
get your ass." Defendant Smith then "looked in the cell to Hopkins
where he was holding his genitals and smiling, and stated, 'you can
handle yourself.'" Plaintiff also complained to Defendants Abad and
Cortez about the placement of Hopkins in his cell, stating that he did
not feel safe, but was told "to wait it out" until Hopkins was
On June 10, 2008, Plaintiff awoke unusually late, felt tired, had problems defecating, and noticed that his sheets and underwear looked different. He experienced pain around his rectum but was uncertain of the cause. When Plaintiff was preparing to take a nap later that day, he saw Hopkins "attempting to pour some of his medication into [Plaintiff's] coffee mug." At that moment, Plaintiff apparently "vividly remember[ed] the night before . . . being druged (sic) and raped." He recalled having set down a bowl of soup "when someone came to the cell door and [he] left [his] bowl unattended. When [he] turned around Hopkins was making the same type of movement . . . with some white powder substance in his hand . . . toward [his] soup bowl." He remembered having been raped and "moved around the cell in stupper (sic)." As soon as he was let out of his cell, Plaintiff told the nurse on duty what happened, and was taken to a hospital for examination. Upon his return, Plaintiff learned that Hopkins had been accused on prior occasions of drugging and raping a cell mate, "which is why Hopkins was previously made to be single celled."
Plaintiff explains that Donovan's classification committee may recommend single-cell status for "inmates who demonstrate a history of in-cell abuse, significant in-cell violence toward a cell partner, verification of predatory behavior towards a cell partner, or who have been victimized in-cell by another inmate." According to Plaintiff, unclassified inmates whose records have not yet been reviewed for this determination were not supposed to "mix in with classified inmates, 'not even to walk to the dinning (sic) hall to eat.'" Plaintiff states a new inmate's classification might not take place for "weeks or months." At one such committee meeting, Defendant Marrero apparently reviewed Plaintiff's records, which included a previous request by him, made in 2004, to be placed in the sensitive needs yard.
In Plaintiff's motion for injunctive relief, he states he is being subjected to retaliation from prison officials in response to his institution of this lawsuit. (Mot. for Injunction 3.) Specifically, he claims he was beaten by three corrections officers on February 12, 2011, who told him "you had it coming for suing our partners." (Id.) Following that incident, he was allegedly placed in administrative segregation, and has yet to be placed back in the general population. (Id.) Plaintiff contends further that he is being denied access to the courts and suffering irreparable injury. (Id.)
1. Review of the Report and Recommendation
Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1) set forth a district court's duties regarding a magistrate judge's R&R. The Court "shall make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(c); see also United States v. Raddatz, 447 U.S. 667, 673--76 (1980). However, in the absence of a timely objection, "the Court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Fed. R. Civ. P. 72, advisory committee's note (citing Campbell v. U.S. Dist. Ct., 501 F.2d 196, 206 (9th Cir. 1974)).
Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the defense that the complaint "fail[s] to state a claim upon which relief can be granted," generally referred to as a motion to dismiss. The Court evaluates whether a complaint states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil Procedure 8(a), which requires a "short and plain statement of the claim showing that the pleader is entitled to relief." Although Rule 8 "does not require 'detailed factual allegations,' . . . it [does] demand more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S 662, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). "Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 557).
"To survive a motion to dismiss, 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); see also Fed. R. Civ. P. 12(b)(6). A claim is facially plausible when the facts pled "allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). That is not to say that the claim must be probable, but there must be "more than a sheer possibility that a defendant has acted unlawfully." Id. Facts "'merely consistent with' a defendant's liability" fall short of a plausible entitlement to relief. Id. (quoting Twombly, 550 U.S. at 557). "All allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party." Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002). However, the Court need not accept as true "legal conclusions" contained in the complaint. Iqbal, 129 S. Ct. at 1949. This review requires context-specific analysis involving the Court's "judicial experience and common sense." Id. at 1950 (citation omitted). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not 'show[n]'-'that the pleader is entitled to relief.'" Id. Moreover, "for a complaint to be dismissed because the allegations give rise to an affirmative defense[,] the defense clearly must appear on the face of the pleading." McCalden v. Ca. Library Ass'n, 955 F.2d 1214, 1219 (9th Cir. 1990).
Where a motion to dismiss is granted, "leave to amend should be granted 'unless the court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency.'" DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992) (quoting Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986)). In other words, where leave to amend ...