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David Brian Scanlan v. D.K. Sisto


March 27, 2012



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 (1987).

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 the complaint to be libelous without risk that the court will deem true all libels in it. Similarly, a receipt for goods, alleged in the pleading to have been forged, may or may not evidence forgery on its face, but it does not concede delivery of goods for pleading purposes.

Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 674 (2nd Cir. 1995); see also, Northern Indiana Gun & Outdoor Shows, Inc. v. City of South Bend, 163 F.3d 449, 455 (7th Cir. 1998) ("[t]o conclude summarily ... that letters written by Century Center represent the truth with regard to the defendants' intent simply because NIGOS attached them to its complaint for reasons unrelated to their truthfulness is inappropriate").

Plaintiff does not explain why he attached the materials he did. But the court may not assume that he accepts as true every assertion in every document in over 230 pages of exhibits.*fn13

Certainly, there is no reason to assume plaintiff accepts as true the assertions of the incident reports that contradict the allegations of his complaint.

It is true that the court may reject allegations of the complaint that contradict matters "properly subject to judicial notice or by exhibit." Sprewell v. Golden State Warriors, 266 F.3d 979, 988, as amended, 275 F.3d 1187 (9th Cir. 2001). But what this means is that the court may reject what the plaintiff says about the report, because the court can see for itself what the report says. For example, if plaintiff had alleged that the incident report stated that the prison authorities all deliberately stood by, took no action, and allowed the riot to occur, the court could reject that allegation, if the incident report did not so state. However, the court cannot summarily reject plaintiff's allegations that in fact the prison authorities took no action, regardless of what the incident report says.

Thus, while the court can note that the prison authorities wrote a report asserting that defendants did everything possible to prevent the race-riot and protect plaintiff, it cannot accept the prison authorities' possibly self-serving statements as true on a Rule 12(b)(6) motion to dismiss. This is especially so when the statements directly contradict the allegations of the complaint, as they do here. Doing so would improperly blur the distinction between a Rule 12(b)(6) dismissal motion and a Rule 56 motion for summary judgment.*fn14 Whether the prison authorities did all they could to prevent the riot, and to protect plaintiff, is a matter for summary judgment or trial, not for a Rule 12(b)(6) dismissal.*fn15

Accordingly, IT IS HEREBY ORDERED that in regard to the Motion To Dismiss (Dkt. No. 19) and the Findings and Recommendations (Dkt. No. 54):

1. The following Findings and Recommendations are adopted in full:

a. The denial of defendants' motion to dismiss Claim VI; and

b. the denial of the motion to dismiss the complaint based upon qualified immunity.

2. 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.

3. This matter is returned to the Magistrate Judge for further proceedings not inconsistent with this order.


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