Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and E.D. Cal. R. ("Local Rule") 302(21) ("All actions in which all plaintiffs or defendants are proceeding in propria persona").
On January 10, 2012, the Magistrate Judge filed Findings and Recommendations herein, which were served on all parties and which contained notice to all parties that any objections to the Findings and Recommendations were to be filed within twenty-one days. Neither party has filed objections to the Findings and Recommendations.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(B), this court has conducted a de novo review of this case. Having carefully reviewed the entire file, this court finds the following Findings and Recommendations to be supported by the record and by the Magistrate Judge's analysis: the denial of the motion to dismiss Claim VI; and the denial of the motion to dismiss the complaint based upon qualified immunity.
However, the court declines to adopt the findings and recommendations granting defendants' Rule 12(b)(6) motion to dismiss Claims I and II for failure to state a claim upon which relief can be granted.*fn1 The recommended dismissal of these claims is based upon the truth and accuracy of a prison "incident report" apparently prepared by the prison authorities. Findings and Recommendations (Dkt. No. 54) at pp. 4-5.
On June 24, 2008 a race riot between black inmates and white inmates broke out in a gymnasium at the facility where plaintiff, who is white, was incarcerated.*fn2 Although the defendants, prison authorities, knew that the riot was brewing, they took no action, and simply "wait[ed] outside the gym for the riot to happen."*fn3
Plaintiff fought in the riot, but only in order to defend himself.*fn4 Weapons were used in the riot, placing plaintiff in danger.*fn5 The prison authorities charged plaintiff with participation in a riot, and placed him in "administrative segregation."*fn6
Plaintiff challenged his release from administrative segregation into "Facility 2," on the grounds that he would be attacked by the black inmates there.*fn7 He therefore asked to be released to "any other facility."*fn8 Nevertheless, defendants released plaintiff into Facility 2.*fn9 He was the only white inmate to be released there, and he was "immediately attacked and hit over the head repeatedly with a cane," and beaten so badly that he nearly died.*fn10
Plaintiff alleges civil rights claims arising from defendants' alleged deliberate indifference in failing to protect him from known harm, causing him to be attacked, and causing him to suffer serious injury.
The incident reports on which the Findings and Recommendations are
based, are included in the 230-plus pages of exhibits which the
plaintiff, proceeding pro se, attached to his complaint.*fn11
Defendants correctly argue that the court may consider a
"written instrument" that is attached to the complaint in determining
whether the plaintiff can state a claim. Fed. R. Civ.
P. 10(c); Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th
Cir.) (court may consider a "written instrument" attached to the
complaint "in determining whether the plaintiff can prove any set of
facts in support of the claim"), cert. denied, 484 U.S. 944
It is not entirely clear that a prison incident report is the type of
"written instrument" that
is properly attached to a complaint in the first place.*fn12
The principal role of Rule 10(c) is to bring to the court's
attention written instruments that form the basis for the plaintiff's
claims. See, e.g. Coos County Board of County Com'rs v. Kempthorne,
531 F.3d 792, 811 n.14 (9th Cir. 2008) (attaching challenged
environmental review to the complaint); Hal Roach Studios, Inc. v.
Richard Feiner and Co., Inc., 896 F.2d 1542, 1555 & n.19 (9th Cir.
1990) (district court properly considered "a copy of the 1972
assignment" which was "attached to appellant's counterclaim as an
exhibit," and was the basis for Count 4 of the counterclaim). Here,
the incident reports do not form the basis of plaintiff's civil rights
complaint. The basis for plaintiff's complaint is defendants' alleged
actions, or alleged failure to act.
Even if the 230-plus pages of exhibits qualified under Rule 10(c), their submission with the complaint does not permit the court to assume the truth of the matters asserted there. The Second Circuit gives the following excellent summary of the role of Rule 10(c):
Both the district court and the defendants assume that Rule 10(c)
requires a plaintiff to adopt as true the full contents of any
document attached to a complaint or adopted by reference. This is not
a proper reading of the rule. Courts have found that, "[i]f the
appended document ... reveals facts which foreclose recovery as a
matter of law, dismissal is appropriate," Associated Builders, Inc. v.
Alabama Power Co., 505 F.2d 97, 100 (5th Cir. 1974) (prospectus
attached to complaint alleging bond purchase based on material
misrepresentations). An appended document will be read to evidence
what it incontestably shows once one assumes that it is what the
complaint says it is (or, in the absence of a descriptive allegation,
that it is what it appears to be). For example, a written contract
appended to the complaint will defeat invocation of the Statute of
Frauds, and a document that discloses what the complaint alleges it
concealed will defeat the allegation of concealment. By the same
token, however, a libel plaintiff may attach the writing alleged in