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Kenneth E. Baptiste v. G. Dunn

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


January 29, 2013

KENNETH E. BAPTISTE, PLAINTIFF,
v.
G. DUNN, DEFENDANTS.

The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Plaintiff, an inmate of the California Department of Corrections ("CDCR"), proceeds pro se on a first amended civil rights complaint filed pursuant to 42 U.S.C. § 1983. (Dkt. No. 46.) Plaintiff alleges that defendants were deliberately indifferent to his serious dental needs in violation of the Eighth Amendment. Defendants have moved to dismiss the complaint. (Dkt. Nos. 59, 69.) The matter is fully briefed. (See Dkt. Nos. 73, 74, 76.)

I. Allegations of the First Amended Complaint

The events giving rise to this lawsuit occurred at High Dessert State Prison ("HDSP"), where plaintiff was incarcerated at all times relevant. At HDSP, G. Dunn, DDS, provided dental care to plaintiff from February 28, 2002 to February 7, 2003. (Dkt. No. 46 at 3.) During that time period, plaintiff's gum infection went untreated, resulting in severe gum loss, bone loss, and the extraction of 17 teeth. (Id.) Plaintiff alleges that this resulted from CDCR's policy of not employing a periodontist or gum specialist and providing only emergency extractions and temporary fillings. (Id.)

C. Hopson, DDS, was responsible for plaintiff's dental care from July 27, 2006 to January 7, 2007. (Dkt. No. 46 at 4.) Hopson denied plaintiff's request for treatment of his gum infection, stating CDCR does "not provide funds for oral infections treatment" and that plaintiff's only option was full mouth extractions. (Id.)

D. Simpson, DDS, was responsible for plaintiff's dental care from June 27, 2007 until April 20, 2008. (Dkt. No. 46 at 4.) Simpson recognized plaintiff's gum infection and serious medical need, however, per policy, only provided the easier and less efficacious treatment of extraction. (Id.)

C. Callegari,*fn1 Dental Assistant to Dunn, Hopson and Simpson from February 28, 2002 until April 28, 2008, "coordinated and promoted [the dentists'] unprofessional practice" and the unnecessary extractions of plaintiff's teeth. (Dkt. No. 46 at 4.)

R. Christe, the Medical Appeal Analyst at HDSP, "erected arbitrary and burdensome procedures that resulted in interminable delays and denial of access to the Inmate Appeal process." (Dkt. No. 46 at 4.) Similarly, N. Acquaviva, the Health Care Manager at HDSP, delayed and obstructed the grievance process in an attempt to circumvent departmental review. (Id.)

R.J. Leo, the Chief Dental Director at HDSP, endorsed the policy and practice of not providing oral specialists to treat prisoners at HDSP with oral infections. (Dkt. No. 46 at 5.) Likewise, T. Felker, the Warden at HDSP, "elected not to correct the denial of appropriate treatment and the obstruction of the appeal process" even after it was brought to his attention by plaintiff on April 17, 2007. (Id.)

Ultimately, 22 of plaintiff's teeth were extracted. (Dkt. No. 46 at 5.) At some point, plaintiff was fitted for dentures, however, after a pair was lost, he had to wait more than two years for another pair. (Id.) Plaintiff was unable to chew food, which resulted in weight loss and nutritional deficiencies and negative effect on his overall health and well-being. (Id.)

II. Motions to Dismiss

Defendants move to dismiss plaintiff's first amended complaint under Fed. R. Civ. P. 12(b)(6) for failure to state a cognizable claim. (Dkt. Nos. 59 [defendants Christe and Hopson], 69 [defendants Acquaviva, Callegari, Dunn, Felker, Leo and Simpson].) Named in both their individual and official capacities, defendants assert they are immune from damages under the Eleventh Amendment for actions taken in their official capacities to implement state policy. (Dkt. No. 69 at 8.) Defendants further assert plaintiff's claim for injunctive relief is barred by a pending class action of which he is a member. (Dkt. No. 59 at 6-7; Dkt. No. 69 at 6-7.) Defendant Dunn contends that plaintiff's claim for damages is time barred by the applicable statute of limitations. (Dkt. No. 69 at 7-8.)

A. Legal Standard for Dismissal for Failure to State a Claim The standard used to evaluate a complaint in the face of a motion to dismiss is a liberal one, particularly when the action has been filed pro se. Estelle v. Gamble, 429 U.S. 97 (1976) see also Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding that pro se pleadings are held to a less stringent standard than those drafted by lawyers). A complaint should not be dismissed under Rule 12(b)(6) unless it appears beyond doubt that plaintiff cannot prove any set of facts consistent with his allegations which would entitle him to relief. NOW, Inc. v. Schiedler, 510 U.S. 249, 256 (1994); Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Cervantes v. City of San Diego, 5 F.3d 1273, 1274-75 (9th Cir. 1993).

Dismissal of the complaint, or any claim within it, "can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory."

Balistreri v. Pacifica Police Dep't., 901 F.2d 696, 699 (9th Cir. 1990); see also Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984). 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." Ashcraft v. Iqbal, 556 U.S. 662, 678 (2009). A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id.

In considering a motion to dismiss, the court accepts as true the allegations of the complaint (Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976)), construes the pleading in the light most favorable to the party opposing the motion, and resolves all doubts in the pleader's favor (Jenkins v. McKeithen, 395 U.S. 411, 421, reh'g denied, 396 U.S. 869 (1969)). The court may consider facts established by exhibits attached to the complaint, but also may disregard allegations in the complaint if they are contradicted by facts established by exhibits. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court is not required to accept as true allegations that contradict facts which may be judicially noticed. Mullis v. United States Bankruptcy Ct., 828 F.2d 1385, 1388 (9th Cir. 1987), cert. denied, 486 U.S. 1040 (1988). In addition, the court need not accept as true conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir.), cert. denied, 454 U.S. 1031 (1981).

B. Deliberate Indifference and Section 1983 Standards

Prisoners can establish an Eighth Amendment violation with respect to medical care if they can prove there has been deliberate indifference to their serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104 (1976). "Dental care is one of the most important medical needs of inmates." Hunt v. Dental Dept., 865 F.2d 198, 200 (9th Cir. 1989). Accordingly, the Eighth Amendment requires that prisoners be provided with a system of ready access to adequate dental care. Id. (citing Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982)).

Delay alone in providing a prisoner with dental treatment does not constitute an Eighth Amendment violation. Hunt, 865 F.2d at 200 (citing Shapley v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985)). Rather, an official must know of and disregard an excessive risk to inmate health or safety. Farmer v. Brennan, 511 U.S. 825, 832 (1994). Two requirements must be met: (1) the deprivation must be, objectively, sufficiently serious; and (2) the prison official must be, subjectively, deliberately indifferent to inmate health or safety. Id. at 834. Allegations of pain and inability to eat properly state a deprivation that is objectively, sufficiently serious. Hunt, 865 F.2d at 200. As to the subjective factor, the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and must also draw the inference. See Id.

In addition, the Civil Rights Act under which this action was filed requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by the plaintiff. 42 U.S.C. § 1983; see also Monell v. Dep't of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). "A person 'subjects' another to the deprivation of a constitutional right, within the meaning of § 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).

Supervisory personnel are generally not liable under § 1983 for the actions of their employees under a theory of respondeat superior and, therefore, when a named defendant holds a supervisorial position, the causal link between him and the claimed constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978), cert. denied, 442 U.S. 941 (1979). Vague and conclusory allegations concerning involvement of official personnel in civil rights actions are not sufficient. See Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

C. Defendants Acquaviva, Christe, Felker, and Leo

Plaintiff alleges that defendant Acquaviva, the Health Care Manager at HDSP, delayed and obstructed the inmate grievance process. An exhibit attached to plaintiff's complaint additionally demonstrates that Acquaviva denied plaintiff's inmate appeal #HDSP-B-06-01874 requesting emergency dental care on May 25, 2007 at the second level of review. (Dkt. No. 46 at 8-10.) In denying the appeal, Acquaviva stated that plaintiff had arrived at HDSP on February 27, 2002, that he had been seen 15 times, that his history of complaining of sore gums and periodontitis dated back to July 1989 for several years prior to his arrival at HDSP, and that there was no evidence he was denied dental treatment. (Id. at 10.)

Defendant Christe was the Medical Appeals Analyst at HDSP. Plaintiff alleges that Christe delayed the grievance process and denied plaintiff access to the grievance process.

Plaintiff alleges that defendant Felker, Warden at HDSP, elected not to correct the denial of appropriate treatment and the deficient appeals process.

Defendant Leo, Chief Dental Director at HDSP, endorsed the policy and practice of not providing oral specialists to treat oral infections. Plaintiff's exhibits additionally demonstrate that Leo responded to plaintiff's appeal #HDSP-B-06-01874 at the informal level of review on August 3, 2006, denying plaintiff's request for emergency treatment and advising him that he was on the waiting list for routine care. (Dkt. No. 46 at 6-7.) Leo also partially granted plaintiff's appeal #HDSP-31-08-16391 regarding a new dental treatment plan on January 16, 2009 at the second level of review. (Id. at 40.)

In asserting that plaintiff has failed to state a cognizable claim, defendants correctly note that prisoners have no "separate constitutional entitlement to a specific prison grievance procedure." Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988)). An official's failure to process a grievance does not state a constitutional violation. Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993). Likewise, "[r]uling against a prisoner on an administrative complaint" does not state a constitutional violation. George v. Smith, 507 F.3d 605, 609-10 (7th Cir. 2007).

Accordingly, neither the alleged failure of these defendants to properly implement the administrative appeals process at HDSP nor their denial or unsatisfactory handling of plaintiff's inmate appeals raises constitutional concerns. In addition, plaintiff's allegations that Leo and Felker essentially endorsed the unconstitutional level of dental care being provided by others, based on their supervisory roles, do not allege the requisite personal involvement and causal link for supervisory personnel liability under section 1983. Accordingly, the motion to dismiss should be granted as to defendants Acquaviva, Christe, Felker, and Leo.

D. Defendant Dunn

According to plaintiff's complaint, defendant Dunn, DDS, provided plaintiff with dental care from February 28, 2002 until approximately February 7, 2003. Dr. Dunn moves for dismissal on the basis that plaintiff's claim against him, which relates solely to dental care provided during that period of time, is time-barred.

"Because § 1983 does not contain a statute of limitations, federal courts apply the forum state's statute of limitations for personal injury claims." Johnson v. California, 207 F.3d 650, 653 (9th Cir. 2000) (citing Wilson v. Garcia, 471 U.S. 261, 276 (1985)). In California, the applicable limitations period for personal injury actions is two years. Cal. Civ. Pro. Code § 335.1; Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004). When not inconsistent with federal law, federal courts also apply the law of the forum state regarding tolling. Johnson, 207 F.3d at 653 (citing Hardin v. Straub, 490 U.S. 536, 537-39, 543 (1989)). Under California law, the limitations period is tolled for persons imprisoned on a criminal charge for up to two years. Cal. Civ. Proc. Code § 352.1(a); see also Johnson, 207 F.3d at 654.

Federal law controls the question of when a claim accrues. Johnson, 207 F.3d at 653; Wallace, 549 U.S. 384, 388 (2007). A claim accrues when a plaintiff knows, or should know, of the injury which is the basis of his cause of action. Johnson, 207 F.3d at 653. Once a person has information sufficient to put a reasonable person on notice, the limitations period begins to run. Knox v. Davis, 260 F.3d 1009, 1013 (9th Cir. 2001). A plaintiff need not be aware of the specific facts necessary to establish a claim in order for the limitations period to begin running. Braxton-Secret v. A.H. Robbins Co., 769 F.2d 528, 530 (9th Cir. 1985).

Based on plaintiff's allegations, his Eighth Amendment claim against Dr. Dunn accrued no later than February 7, 2003, at the conclusion of Dunn's alleged unconstitutional dental care. See Abrahamson v. University of Hawaii, 594 F.2d 202, 209 (9th Cir. 1979) ("The proper focus is upon the time of the [ ] acts, not upon the time at which the consequences of the acts became most painful."). Applying the two year statute of limitations and the additional maximum two years tolling for plaintiff's incarceration, the Eighth Amendment claim against Dunn had to be brought no later than February 7, 2007. However, plaintiff initiated this federal action more than a year later, on June 20, 2008. (Dkt. No. 1.)

Plaintiff responds that his claims against Dunn are not time-barred, because the failure to treat was a continuing wrong. (Dkt. No. 73 at 9-10.) Even under the continuing wrong theory, which allows a plaintiff to seek relief for events outside of the limitations period, at least one alleged act or omission constituting part of the violation must be alleged to fall within the limitations period. Knox, 260 F.3d at 1013. Plaintiff makes no such allegation. Accordingly, his claims against Dunn should be dismissed as time-barred. See Ritchie v. United States, 210 F. Supp. 2d 1120, 1123 (N.D. Cal. 2002) ("Where the facts alleged in a complaint demonstrate that the complaint is barred by the statute of limitations, a Federal Rule of Civil Procedure 12(b)(6) motion should be granted.) (citing Fed. R. Civ. P. 12(b)(6) & Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980)).

E. Defendants Hopson and Simpson

Defendant Hopson, DDS, was responsible for plaintiff's dental care from July 27, 2006 to January 7, 2007, while defendant Simpson, DDS, was responsible for plaintiff's dental care from June 27, 2007 to April 20, 2008.

Dr. Hopson asserts that plaintiff's claim against him should be dismissed because he provided medically necessary dental care in compliance with the policies adopted by CDCR as a result of the class action settlement in Perez v. Cate, et al., USCD N.D. Cal., Case Number 3:05-cv-05241 ("Perez"), which met minimum Eighth Amendment standards. (Dkt. No. 59 at 5-6.) Similarly, Dr. Simpson asserts that plaintiff's claim against him should be dismissed because the tooth extractions were medically necessary and because plaintiff's own grievance states the teeth extracted by Simpson needed to be extracted before replacement dentures could be fitted. (Dkt. No. 69 at 9-10.)

As a factual record is developed, it may very well turn out that Drs. Hopson and Simpson provided medically necessary dental care and that they were not deliberately indifferent to plaintiff's serious dental needs. At this stage of the case, however, construing the pleading in the light most favorable to plaintiff and drawing all reasonable inferences therefrom, the undersigned finds that plaintiff's allegations state a cognizable Eighth Amendment claim alleging that defendants Hopson and Simpson knew of and disregarded an excessive risk to plaintiff's health or safety in connection with the alleged untreated gum infection, gum and bone loss, and tooth extractions, such that a genuine issue of material fact exists in that regard.

F. Defendant Callegari

Plaintiff alleges that defendant Callegari, a dental assistant, coordinated and promoted the unconstitutional level of dental care being provided by Drs. Hopson and Simpson. Although a person can violate section 1983 by participating in the act of another person which causes the constitutional violation, plaintiff's allegations as to Callegari's involvement are too vague and conclusory to survive the motion to dismiss. See Iqbal, 556 U.S. at 678; Ivey, 673 F.2d at 268. Unlike plaintiff's treating dentists, who were alleged to have directly provided plaintiff with the dental care at issue, it is not facially plausible that Callegari, as a dental assistant, could have provided different treatment independently of plaintiff's treating dentists or ordered plaintiff's dentists to provide alternate treatment. In other words, the allegations against Callegari lack sufficient factual content to allow the court to draw the reasonable inference that she is liable for the misconduct alleged.

G. Official Capacity Damages Claims

Plaintiff has named each defendant in his or her official capacity. "[A]n official capacity suit is, in all respects other than name, to be treated as a suit against the entity." Kentucky v. Graham, 473 U.S. 159, 166 (1985). Unless waived, the Eleventh Amendment bars a federal court award of damages under § 1983 against a state, state agency, or state official sued in an official capacity. Quern v. Jordan, 440 U.S. 332, 342 (1979). Moreover, neither a state nor a state official sued in an official capacity for monetary damages is a "person" for purposes of a § 1983 damages action. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989). Therefore, even if a state waives its Eleventh Amendment immunity in federal court, Will precludes a damages action against the state government entity or a state official sued in an official capacity for monetary damages. Id. For these reasons, plaintiff's claims for damages against defendants in their official capacity should be dismissed.

H. Request for Injunctive Relief

Plaintiff requests an injunction ordering defendants to arrange for him to be examined and treated by an independent specialist and for his missing teeth to be replaced. (Dkt. No. 46 at 3.) Defendants move for dismissal of the claim as barred by a pending class action.

The Ninth Circuit has held that a plaintiff who is a member of a class action for equitable relief from prison conditions may not maintain a separate, individual suit for relief that is also sought by the class, but may pursue equitable relief that "exceeds" or is not covered by the class action. See Crawford v. Bell, 599 F.2d 890 (9th Cir. 1979) (reversing district court's dismissal of plaintiff's claims for relief only as to those that were not included in a class action challenging overcrowding); accord McNeil v. Guthrie, 945 F.2d 1163, 1166 n. 4 (10th Cir. 1991) ("class members may bring individual actions for equitable relief when their claims are not being litigated within the boundaries of the class action").

Defendants request the court to take judicial notice of Perez v. Cate, No. C 05-5241 JSW (N.D. Cal. filed 2005) ("Perez"), including the Amended Stipulation and Order entered August 21, 2006 and its accompanying exhibits. A court may take judicial notice of court records. E.g., Bennett v. Medtronic, 285 F.3d 801, 803 n.2 (9th Cir. 2002). ("We may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.") (internal quotation marks and brackets omitted). Good cause appearing, defendants' request for judicial notice is granted.

Plaintiff is a member of the class action in Perez, which includes all current and future inmates of California state prisons who have serious dental care needs. See Perez v. Cate, 632 F.3d 553, 554 (9th Cir. 2011). In Perez, the plaintiffs claimed that the provision of dental care in California state prisons violated the Eighth Amendment. The parties settled the action and entered into a remedial plan which was approved by the District Court for the Northern District of California in August, 2006. Id. at 554; see also Dkt. No. 59-2.*fn2 The plan aims to set the minimum level of care required by the Eighth Amendment and expressly governs policies and procedures "that the parties will follow in this case for resolving disputes concerning the constitutional adequacy of dental care services." (Dkt. No. 59-2 at 2.) It specifically provides that "[d]isputes whether defendants' Policies and Procedures satisfy their obligations under the Eighth Amendment shall be resolved using the dispute resolution procedures in ¶¶ 36-38." (Dkt. No. 59-2 at 4.) And further:

The parties understand and agree that the inmate grievance procedure (CDCR Form 602) is an important step in the provision of essential dental care. Accordingly, the parties agree that all complaints regarding dental care provided to an individual inmate, except those requiring emergency care of those classified as priority 1A*fn3 , shall be submitted to Defendants after using the inmate grievance procedure. Once the appeal has received the director's level of review and all administrative relief has been exhausted, should the individual inmate contend that the grievance procedure failed to adequately address the dental problem, Plaintiff's counsel may bring the dental care concern to the attention of appropriate headquarters staff, who shall respond in writing within 30 days. (Dkt. No. 59-2 at 7-8 (emphasis added).)

Here, plaintiff seeks an injunction ordering defendants to arrange for him to be examined and treated by an independent specialist and for his missing teeth to be replaced. (Dkt. No. 46 at 3.) Plaintiff's dispute regarding the constitutional adequacy of dental services being provided is to be governed by the policies and procedures of the Perez Amended Stipulation and Order, under which he should direct his claims for injunctive relief to his class counsel in Perez, unless his complaints are among those requiring emergency care for an acute oral or maxillo-facial condition, which is likely to remain acute, worsen, or become life threatening without immediate intervention. (Dkt. No. 59-2 at 7.)

Plaintiff's request for his already-extracted teeth to be replaced does not suggest that the treatment sought involves emergency care for an acute dental condition. However, construing plaintiff's complaint liberally, his allegations of ongoing untreated gum infection and his desire to be examined by an independent specialist raise a genuine issue of material fact in this regard. Accordingly, defendants' motion to dismiss the injunctive relief claim should be denied at this stage as to defendants Felker and Leo, the Warden and Chief Dental Director at HDSP, respectively, in their official capacity, whom plaintiff alleges are responsible for HDSP's policy and practice of not providing oral specialists.

I. Qualified Immunity

As discussed, plaintiff has stated Eighth Amendment claims against defendants

Hopson and Simpson in their individual capacity. Defendants contend they are entitled to qualified immunity. "Government officials enjoy qualified immunity from civil damages unless their conduct violates 'clearly established statutory or constitutional rights of which a reasonable person would have known.'" Jeffers v. Gomez, 267 F.3d 895, 910 (9th Cir. 2001) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). When a court is presented with a qualified immunity defense, the central questions are (1) whether the facts alleged, taken in the light most favorable to the plaintiff, demonstrate that the defendant's conduct violated a statutory or constitutional right and (2) whether the right at issue was "clearly established." Saucier v. Katz, 533 U.S. 194, 201 (2001).

While it remains to be seen what admissible evidence will prove in regard to plaintiff's allegations, the undersigned has found that plaintiff has sufficiently alleged that defendants Hopson and Simpson were deliberately indifferent to his serious dental needs in violation of the Eighth Amendment during the time period of 2006-2008, collectively. Long before 2006, "the general law regarding the medical treatment was clearly established," and "it was also clearly established that [prison staff] could not intentionally deny or delay access to medical care." Clement v. Gomez, 298 F.3d 989, 906 (9th Cir. 2002). It had also been clearly established that dental care was one of the medical needs of inmates to which the Eighth Amendment deliberate indifference standard applied. Hunt, 865 F.2d at 200. Therefore, any reasonable prison official should have known that willfully delaying or denying dental care, or willfully allowing a serious gum infection to go untreated, resulting in severe gum loss, bone loss, the extraction of several teeth, and the inability to chew food, in conscious disregard for the inmate's health or safety, violated the Eighth Amendment. Accordingly, defendants' motion to dismiss based on the affirmative defense of qualified immunity should be denied at this time.

In accordance with the above, IT IS HEREBY RECOMMENDED that:

1. Defendants' motion to dismiss (Dkt. No. 59) be GRANTED in part, as to (1) defendant Christe and (2) the injunctive relief claim against Christe and Hopson; and DENIED in part, as to the damages claim against Hopson.

2. Defendants' motion to dismiss (Dkt. No. 69) be GRANTED in part, as to (1) defendants Acquaviva, Dunn, and Callegori, (2) the damages claims against Felker, and Leo, (3) the damages claims against defendants in their official capacities, and (4) the injunctive relief claims against Acquaviva, Dunn, and Callegori; and DENIED in part, as to (1) the damages claim against defendant Simpson, and (2) the injunctive relief claim against defendants Felker and Leo in their official capacity.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).


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