The opinion of the court was delivered by: Hon. Anthony J. Battaglia U.S. District Judge
) ORDER: ) (1) ADOPTING IN PART AND ) DECLINING TO ADOPT IN PART ) THE R&R, (DOC. NO. 227); ) (2) OVERRULING PLAINTIFF'S ) OBJECTIONS IN PART, (DOC. NO. ) 233); ) (3) GRANTING IN PART AND ) DENYING IN PART ) DEFENDANTS' MOTION TO DISMISS, (DOC. NO. 151); ) (4) GRANTING DEFENDANT ) HUBBEL'S MOTION TO DISMISS, ) (DOC. NO. 166); AND ) (5) DENYING PLAINTIFF'S ) MOTIONS FOR DEFAULT ) JUDGMENT, (DOC. NOS. 175, 177, ) & 210)
Before the Court are Plaintiff's Objections, (Doc. No. 233), to Magistrate Judge Skomal's Report and Recommendation ("R&R") entered February 1, 2013, (Doc. No. 227). In the R&R, Judge Skomal recommended the following: (1) Grant in Part and Deny in Part the Motion to Dismiss filed by Defendants Mills, Janda, White, and Barra, (Doc. No. 151); (2) Grant the Motion to Dismiss filed by Defendant Hubbel, (Doc. No. 166); and (3) Deny Plaintiff's three pending Motions for Default Judgment against Defendant Hubbel, (Doc. Nos. 175, 177, 201). For the reasons set forth below, the Court ADOPTS IN PART AND DECLINES TO ADOPT IN PART the pending R&R, (Doc. No. 227). The Court OVERRULES IN PART AND GRANTS IN PART Plaintiff's objections to the R&R, (Doc. No. 233) as noted in this order.*fn1 As such, the Court GRANTS IN PART and DENIES IN PART the motion to dismiss filed by Defendants Mills, Janda, White, and Barras, (Doc. No. 151), GRANTS Defendant Hubbel's motion to dismiss, (Doc. No. 166), and DENIES Plaintiff's motions for default judgment, (Doc. Nos. 175, 177, & 210).*fn2
Procedural Background On April 12, 2012, Plaintiff Condalee Morris, a state prisoner proceeding pro se in forma pauperis, filed his third amended complaint ("TAC") in this action alleging claims under 42 U.S.C. § 1983. (Doc. No. 138.) On May 2, 2012, Defendants Barra, Janda, Mills, and White filed a motion to dismiss the TAC pursuant to Rule 12(b) of the Federal Rules of Civil Procedure. (Doc. No. 151.) Defendants allege Plaintiff failed to exhaust his administrative remedies as to his claims against Mills and Barra and failed to state a claim against White and Janda. (Doc. No. 151.) After some discovery and extensions of time, Plaintiff filed a response in opposition on December 7, 2012, nunc pro tunc to November 15, 2012. (Doc. No. 221.) Defendants filed a reply in support of their motion on November 30, 2012. (Doc. No. 213.)
On July 31, 2012, Defendant Hubbel (erroneously sued as Hubble) also filed a motion to dismiss Plaintiff's TAC pursuant to Rule12(b) for failure to exhaust administrative remedies. (Doc. No. 166.) Despite being given a generous extension of time to file an opposition, Plaintiff did not file a response to Defendant Hubbel's motion to dismiss. (See Doc. No. 198.) However, Plaintiff previously filed three motions for entry of default against Defendant Hubbel, asking the Court to enter a judgment against Defendant Hubbel for $48.6 million dollars. (Doc. Nos. 175, 177, & 210.)
Defendants' motions to dismiss as well as Plaintiffs' three motions for entry of default judgment against Defendant Hubbel were referred to Magistrate Judge Skomal for an R&R. Magistrate Judge Skomal recommended (1) Defendants' motion to dismiss be granted in part and denied in part, (2) Defendant Hubbel's motion to dismiss be granted, and (3) Plaintiff's motions for default judgment be denied. (Doc. No. 227.) The R&R directed the parties to file any written objections before February 19, 2013. (Id. at 26.)
On February 14, 2013, Plaintiff filed a motion for an extension of time in which to file his objections (Doc. No. 232). While his request remained pending, Plaintiff's objections were filed on February 19, 2013. (Doc. No. 233.) Accordingly, the Court denied Plaintiff's request for an extension of time as moot, (Doc. No. 234), and Defendants Barra, Hubbel, Janda, Mills, and White filed their reply to Plaintiff's objections on March 5, 2013. (Doc. No. 236.) Plaintiff has also filed three supplemental declarations in support of his objections to the R&R that have been considered herein. (Doc. Nos. 238, 242, & 243.)
As previously noted, Plaintiff is a state prisoner proceeding pro se and in forma pauperis. In his TAC, Plaintiff brings claims pursuant to 42 U.S.C. § 1983 against Defendants. Specifically, Plaintiff alleges Mills and Barra sexually assaulted Plaintiff and used excessive force in violation of his Eighth Amendment rights. (Doc. No. 138 at 5-9.) Plaintiff further alleges Barra, Mace, and Hubbel violated his Eighth Amendment right to adequate medical care. (Id. at 10-13.) Additionally, Plaintiff claims White and Janda violated his Fourteenth Amendment right to due process. (Id. at 14-17.) All of Plaintiff's claims against Defendants arise out of an encounter Plaintiff had with Mills and Barra on August 12, 2010, the medical treatment made available to Plaintiff following this encounter, and a disciplinary hearing regarding the encounter held on September 8, 2010.
A. Plaintiff's Allegations Against Mills and Barra for Excessive Force
According to Plaintiff's TAC, Plaintiff and inmate Garcia went to the dining hall for dinner on August 12, 2010. (Doc. No. 138 at 5.)*fn3 Upon walking into the dining hall, Defendant Mills asked Plaintiff to go back out of the hall and tuck in his shirt. (Id.) Plaintiff complied, but untucked his shirt again before he sat down at the table. (Id.) On his way out of the dining hall, Defendant Mills stopped Plaintiff and asked to see his i.d. card. (Id.) Plaintiff told Defendant Mills he did not have one. (Id.) Defendant Mills then searched Plaintiff for contraband and weapons, but did not find anything. (Id.) Plaintiff and Garcia then went to the "B" yard clinic to get their medication. (Id.)
While Plaintiff was waiting at the "B" yard clinic for Garcia to get his medication, Defendant Mills asked Plaintiff to walk with him back to the front of the dining hall.
) Plaintiff told Defendant Mills that he "was a coward and a follower and that he don't have any guts." (Id. at 5-6.) Plaintiff and Garcia then returned to the front of the dining hall with Defendant Mills. (Id. at 6.) Defendant Barra was standing at the front of the dining hall when they arrived. (Id. at 6.) Defendant Mills again searched Plaintiff and grabbed and squeezed Plaintiff's testicles. (Id. at 6.) Plaintiff alleges he did not resist or threaten the officer in any fashion or break any prison rules during his encounter with Defendant Mills. (Id. at 6.) Plaintiff alleges he suffered swollen testicles and testicular dysfunction as a result of Defendant Mills's excessive force. (Id. at 6.)
After Defendant Mills searched Plaintiff and grabbed his testicles, Plaintiff said to Defendant Barra, "your [sic] a punk bitch, why don't you do your own dirty work yourself." (Id. at 7.) Defendant Barra then searched Plaintiff and grabbed and squeezed Plaintiff's testicles. (Id. at 7.) Defendant Barra's search of Plaintiff did not reveal any contraband or weapons. (Id. at 7.) Plaintiff alleges Defendant Barra, in using excessive force during his search, caused serious injury to Plaintiff's testicles and inflicted pain upon Plaintiff. (Id. at 7.) Plaintiff alleges he did not resist or threaten Defendant Barra in any fashion or break any prison rules during this encounter. (Id. at 8.) After Defendant Barra squeezed Plaintiff's testicles, Plaintiff clenched his fist because he was in so much pain. (Id. at 7.) Defendant Barra then ordered Plaintiff to turn around and "cuff up." (Id. at 7.) Plaintiff complied, was placed in handcuffs, and escorted to facility "B" medical clinic. (Id. at 7.)
Upon arriving at the "B" yard medical clinic, Defendants placed Plaintiff in holding cell number one. (Id. at 8.) Upon entry, Defendant Barra instructed Plaintiff to walk to the back of the cage and face the wall, which Plaintiff did. (Id. at 8.) Defendant Barra closed the door, locked it, stuck his hands into the tray slot, and grabbed the handcuffs, causing Plaintiff to fall back against the door and injure his wrist. (Id. at 8.) When Plaintiff tried to stand up, Defendant Barra pulled on the handcuffs again causing Plaintiff to fall back into the door a second time. (Id. at 8.) Plaintiff alleges he suffered swollen wrists as a result. (Id. at 8.)
B. Plaintiff's Allegations Against Barra, Mace, and Hubbel for Denial of Medical Care
Plaintiff alleges Defendant Mace witnessed the assault by Defendant Barra on him in the "B" yard clinic. (Id. at 10.) According to Plaintiff's TAC, Plaintiff also complained to Defendant Mace about the sexual assault committed by Defendants Mills and Barra. (Id. at 10.) Plaintiff alleges Defendant Barra interfered with Defendant Mace's job, causing Defendant Mace to not treat Plaintiff's swollen testicles, swollen wrist, and substantial pain. (Id. at 10.) Plaintiff was denied and delayed medical care for sixteen days. (Id. at 10.) Defendant Mace also allegedly fabricated CDCR7219 in order to conceal Defendants Mills and Barra's actions. (Id. at 10-11.)
Thereafter, Plaintiff was placed in administrative segregation ("Ad-Seg") on August 12, 2010. (Id. at 11.) After being placed in Ad-Seg, Plaintiff complained to Ad-Seg medical staff member Defendant Hubbel about the sexual assault by Defendants Mills and Barra and about Defendant Barra's assault in the "B" yard clinic. (Id. at 12.) Defendant Hubbel ignored and failed to respond to Plaintiff's medical complaints. (Id. at 12.) Plaintiff wrote a 602 grievance concerning the sexual assault by Defendant Mills and Barra on August 12, 2010. (Id. at 12.) On August 13, 2010, Plaintiff wrote two sick call requests, seeking appointments for his wrist injury and the sexual assault, but Plaintiff only received treatment for his wrist injury. (Id. at 12.) Plaintiff alleges that from August 12 to August 27, 2010, he suffered pain as a result of a delay in treatment of his swollen testicles. (Id. at 12-13.) Plaintiff suffered swelling that caused him to be unable to sleep, walk, close his legs, or urinate without pain. (Id. at 13.) On August 27, 2010, Plaintiff was removed from Ad-Seg and placed in central medical before being taken to Pioneers Memorial Healthcare District for the examination of his testicles. (Id. at 13; id. at 47-49.) While there, Plaintiff was diagnosed with testicular swelling and dysfunction. (Id. at 13; id. at 47-49.)
C. Plaintiff's Allegations Against White and Janda for Due Process Violations
Following his encounter with Defendants Mills and Barra, Plaintiff wrote a 602 grievance stating that he was sexually assaulted by Mills and Barra and claiming they were trying to cover up the assault by saying Plaintiff committed an assault and battery on a peace officer. (Id. at 14.) On August 21, 2010, Plaintiff received a disciplinary charge for battery on a peace officer based on his encounter with Mills and Barra. (Id. at
The rules violation report ("RVR") contains the following version of events. (Id. at 54.) The RVR states Plaintiff began clenching his fists after stating to Defendant Barra that he is "a punk bitch, why don't you do your own dirty work yourself." (Id. at 54.) Barra then ordered Plaintiff to cuff up and escorted Plaintiff to holding cell number one
in the "B" yard clinic. (Id.) Barra instructed Plaintiff to turn around in order to remove the handcuffs. (Id.) As Barra placed his handcuff key in the handcuffs to remove them, Plaintiff turned his body to the left and pulled Barra forward into the cell cuff port, causing Barra's forearms to strike the cuff port opening. (Id.) When Barra attempted to remove the handcuff key, Plaintiff continued pulling Barra into the cuff port opening.
) Plaintiff and Barra were then evaluated by on duty medical staff, who documented the injuries Barra sustained as a result of Plaintiff's actions. (Id.)
Plaintiff had his disciplinary hearing on September 8, 2010 before Defendant White. (Id. at 15.) Plaintiff asked Defendant White to call inmate Garcia, Defendant Mills, Defendant Barra, Correctional Officer Coronado, Lieutenant Sigler, Defendant Mace, and Registered Nurse Herrera as witnesses at the hearing. (Id. at 14-15.) Defendant White only called Defendant Barra as a witness and failed to call the other six witnesses Plaintiff requested. (Id. at 15.) Defendant White stated that he was not going to call the other witnesses because they would not provide any new or relevant information for the hearing. (Id. at 15.) Following the hearing, Plaintiff received a written disposition signed by Defendant White and finding him guilty as charged based on a preponderance of the evidence submitted at the hearing. (Id. at 15.) The written disposition noted the evidence included employees' written reports and photographs taken of cell number one in the "B" yard clinic. (Id. at 15.) As a result of his being found guilty of a Division "D" offense, Plaintiff was originally assessed ninety (90) days forfeiture of credit. (Id. at 70, 72.) On September 20, 2010, Defendant Janda, a Chief Disciplinary Officer ("CDO"), reviewed Defendant White's findings and disposition.
at 87, 92, 93.) On September 24, 2010, Defendant Janda again reviewed the findings and disposition, and noticed the RVR was originally misclassified as a Division "D" Offense when the correct classification of the RVR was a Division "B" Offense. (Id.) Accordingly, Defendant Janda disallowed all credit loss initially assessed and reclassified the offense as a Division "B" offense. (Id. at 87, 92, 93.)
Plaintiff filed an administrative appeal with Defendant Janda complaining that only one of Plaintiff's witnesses was called by Defendant White. (TAC at 16; see id. at 37-39, 98-100.) Defendant Janda denied Plaintiff's appeal. (Id. at 16.) Plaintiff contends Janda should have ordered a remand and rehearing because Defendant White failed to call all of his witnesses, the offense was later reclassified as a Division "B" offense, a serious offense, and because Plaintiff was assessed a twelve-month segregated housing unit ("SHU") term. (Id. at 16-17.)
A district court has jurisdiction to review a magistrate judge's R&R's on dispositive matters. Fed. R. Civ. P. 72(b). "The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to." Id. "A judge of the court 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). The Court reviews de novo those portions of the R&R to which specific written objection is made. United States v. Reyna--Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). "The statute makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." Id.
Plaintiff makes specific objections to several aspects of Judge Skomal's R&R. Additionally, Plaintiff more broadly "objects to each and every respect of the Magistrate Judge['s] order except as expressly admitted." Id. The Court will first address Plaintiff's specific objections.
Plaintiff's Objection to the Recommendation to Dismiss Plaintiff's Excessive Force Claims Against Mills and Barra for Failure to Exhaust Administrative Remedies In the R&R, Magistrate Judge Skomal concluded Plaintiff failed to exhaust his administrative remedies as to his excessive force claims against Defendants Mills and Barra because he did not include the required Rights and Responsibilities Statement ("the Statement") necessary to comply with the grievance procedures for submitting his appeal.
(Doc. No. 227 at 11.) Thus, the R&R recommends the dismissal of Plaintiff's claims without prejudice and without leave to amend.
Plaintiff does not suggest that he actually submitted the Statement as required. Instead, Plaintiff contends Defendants have not established his failure to exhaust his administrative remedies because the 2010 Statement impermissibly references an unconstitutional provision from the California Penal Code. As set forth in significant detail in the R&R, the Ninth Circuit deemed certain language in California Penal Code § 148.6 unconstitutional in Chaker v. Crogan, 428 F.3d 1215 (9th Cir. 2005). While Plaintiff admits the language found unconstitutional ...