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Jorge Enrique Murillo, Cdcr #T-16641 v. D.K. Mcbride; Ronquillo; N.

April 16, 2012

JORGE ENRIQUE MURILLO, CDCR #T-16641, PLAINTIFF,
v.
D.K. MCBRIDE; RONQUILLO; N. CATALUNA; V. KEMP; BLUEFORD;
SALANG; D. ARGUILEZ; E. GARCIA; CLARK; R. COBB, DEFENDANTS.



The opinion of the court was delivered by: Cathy Ann Bencivengo United States District Judge

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S COMPLAINT PURSUANT TO FED.R.CIV.P. 12(b)(6) [ECF No. 23]

Jorge Enrique Murillo ("Plaintiff"), currently incarcerated at Kern Valley State Prison in Delano, California, is proceeding in pro se and in forma pauperis ("IFP") in this civil rights action filed pursuant to 42 U.S.C. § 1983.

I. Procedural History

On July 11, 2011, Plaintiff filed his Complaint, naming Defendants McBride, Ronquillo, Cataluna, Kemp, Blueford, Salang, Arguilez, Garcia, Clark and Cobb. On October 28, 2011, the Court granted Plaintiff's Motion to Proceed in forma pauperis ("IFP"), denied Plaintiff's Motion for Appointment of Counsel and directed the U.S. Marshal to effect service of the Complaint pursuant to Fed.R.Civ.P. 4(c)(3) and 28 U.S.C. § 1915(d).

On January 17, 2012, Defendants have filed a Motion to Dismiss Plaintiff's Complaint pursuant to Fed.R.Civ.P. 12(b)(6) [ECF No. 23]. The Court set Defendants' Motion on calendar for March 23, 2012 to be submitted on the papers without oral argument pursuant to S.D. CAL. CIVLR 7.1(d)(1). That time has since passed and Plaintiff has not filed an Opposition. On February 16, 2012, this matter was transferred to the calendar of United States District Judge Cathy Ann Bencivengo

II. Factual Allegations*fn1

In 2010, Plaintiff was housed at the Richard J. Donovan Correctional Facility ("RJD") in San Diego. (See Compl. at 1.) Plaintiff claims that from April 5, 2010 to April 15, 2010, he and his cellmate were confined to their cell on a twenty four (24) hour basis. (Id. at 7.) During that period, Plaintiff claims they had a "broken toilet, full of human feces." (Id.) Plaintiff alleges that he would ask Defendant Ronquillo every day during that period to help them get the toilet fixed and she would reply "later." (Id.) On the tenth day, Plaintiff states that the toilet was "finally fixed." (Id.)

Plaintiff attempted to file a grievance related to the actions of Defendant Ronquillo. (Id. at 8.) His grievance was returned by Defendant Cobb who informed Plaintiff that he must attempt a resolution at the informal level with Defendant Ronquillo. (Id.) When Plaintiff submitted a grievance to Ronquillo, he claims Defendant Ronquillo retaliated against him by moving Plaintiff to a different building. (Id.)

On June 22, 2010, Plaintiff alleges he was "grabbed" by his t-shirt and "forced into a cell" with "mentally ill inmate" by Defendant Cataluna. Plaintiff was handcuffed by Defendant Kemp and pulled further into the cell. (Id.) Officer Kemp told Plaintiff "you need to go in." (Id. at 12.) Plaintiff refused and he informed Defendants he was willing to go to Administrative Segregation ("Ad-Seg") rather than be housed with the mentally ill cellmate. (Id.) Three officers are alleged to have then picked up Plaintiff "in a hog tie style," at which time Plaintiff claims he told them "take me anywhere you want to, but don't put me in that cell." (Id. at 9-10.) Plaintiff alleges Defendant Kemp "grabbed Plaintiff by this neck" and threw "him to the floor."

(Id. at 10.) Plaintiff claims three officers began to "beat Plaintiff while he was laying on the floor on his stomach." (Id.) Defendant Blueford "handcuffed Plaintiff" and escorted him out of the building. (Id. at 14.) Plaintiff claims Defendant Blueford asked him "do you want me to throw you down the stairs?" (Id.) Plaintiff was then escorted to Ad-Seg at which time he claims that Defendant Clark, an officer in charge of receiving and releasing inmate property, refused to deliver any of his property to his new housing unit. (Id. at 22.)

Plaintiff alleges that after this incident, Defendants filed a false report that lead to a disciplinary hearing. (Id. at 14-15.) On August 25, 2010, Defendant Arguilez acted as the Senior Hearing Officer at Plaintiff's discplinary hearing. (Id. at 19.) Plaintiff claims that Defendant Arguilez denied him an interpreter even though Plaintiff speaks very little English, deprived him of his right to call witnesses, as well as committing a variety of other procedural deficiencies. (Id. at 19-20.) Plaintif was sentenced to an eleven month "SHU*fn2 " term. (Id.) Plaintiff claims he attempted to file many grievances but Defendants refused to respond to any of them. (Id. at 21.)

III. Defendants' Motion to Dismiss pursuant to FED.R.CIV.P.12(b)(6) Defendants move to dismiss a portion of Plaintiff's Complaint for failing to state a claim upon which relief may be granted pursuant to FED.R.CIV.P. 12(b)(6).

A. FED.R.CIV.P. 12(b)(6) Standard of Review

A Rule 12(b)(6) dismissal may be based on either a "'lack of a cognizable legal theory' or 'the absence of sufficient facts alleged under a cognizable legal theory.'" Johnson v. Riverside Healthcare System, LP, 534 F.3d 1116, 1121-22 (9th Cir. 2008) (quoting Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990)). In other words, the plaintiff's complaint must provide a "short and plain statement of the claim showing that [he] is entitled to relief." Id. (citing FED.R.CIV.P. 8(a)(2)). "Specific facts are not necessary; the statement need only give the defendant[s] fair notice of what ...


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