United States District Court, E.D. California
G. J. GUTIERREZ, Plaintiff,
A. GUTIERREZ, Defendant.
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANTS RULE 12(b)(6) MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM, OR BASED ON QUALIFIED IMMUNITY, BE DENIED (Doc. 20.)
OBJECTIONS, IF ANY, DUE WITHIN THIRTY DAYS
GARY S. AUSTIN, Magistrate Judge.
G. J. Gutierrez ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds on the initial Complaint filed by Plaintiff on March 22, 2013, against defendant Correctional Officer A. Gutierrez ("Defendant") for use of excessive force and failure to protect Plaintiff, in violation of the Eighth Amendment. (Doc. 1.)
On June 5, 2014, Defendant filed a Rule 12(b)(6) motion to dismiss this action for failure to state a claim, or in the alternative, based on qualified immunity. (Doc. 20.) On August 19, 2014, Plaintiff filed an opposition to the motion. (Doc. 35.) On September 3, 2014, Defendant filed a reply. (Doc. 38.) Defendants motion to dismiss is now before the court.
II. PLAINTIFF'S ALLEGATIONS
Plaintiff is a state prisoner presently incarcerated at High Desert State Prison in Susanville, California. The events at issue in the Complaint allegedly occurred at Pleasant Valley State Prison in Coalinga, California (PVSP), when Plaintiff was incarcerated there.
Plaintiff alleges that on January 14, 2012, there was a prison disturbance involving rival gangs. Plaintiff alleges that thirteen inmates associated with the Fresno Bulldog gang "viciously, and for no apparent reason, " attacked seven Southern Hispanic inmates. Plaintiff specifically alleges that:
Plaintiff (a Southern Hispanic affiliate), was merely watching television when he was grabbed by the back of his shirt and stabbed and slashed repeatedly by a Fresno Bulldog affiliated prisoner. Naturally, Plaintiff attempted to defend himself and fight off his attackers as best he could. Plaintiff was bleeding profusely. Blood covered his entire face, head, and upper torso area.
It was clear and plainly obvious to any human being that Plaintiff was the victim in this incident. After shots were fired and chemical agents deployed, all combatants (including Plaintiff) stopped fighting and lie on the floor in a prone position.
Suddenly, and without warning, the Fresno Bulldog affiliated prisoners got back up and attacked the Southern Hispanic affiliated prisoners again.
Gutierrez, who was part of the second responders, joined the already-set skirmish line, and witnessed the Fresno Bulldog affiliated prisoners get up from the floor to resume their attack on the Southern Hispanic affiliated prisoners that included Plaintiff.
Gutierrez sadistically and maliciously aimed his 40mm launcher at Plaintiffs already slashed and bloody head and fired striking him directly above the left eye.
The Fresno Bulldog affiliated prisoners then struck Plaintiff several more times in the face before breaking off their attack and resuming a prone position.
As Plaintiff was en route to the hospital for treatment to his life-threatening wounds, Gutierrez approached Plaintiff and, in a low tone of voice, stated to Plaintiff, "I told you not to f**k with my people. The next time itll be worse." (the term "my people" refers to the Fresno Bulldog affiliated prisoners)
(Complaint, Doc. 1, ¶¶8-16.) Plaintiff also alleges that Defendants crime/incident report failed to acknowledge that Defendant witnessed the attack on Plaintiff by the Fresno Bulldog affiliated prisoners, and that Plaintiff was the victim and bleeding profusely.
III. RULE 12(b)(6) MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM
A. Prior Screening Order
Under the Prison Litigation Reform Act ("PLRA") the Court has a statutory duty to screen complaints in cases such as this and dismiss any claims that fail to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2); 28 U.S.C. § 1915A. Given the requirements of the PLRA, the Court is disinclined to view with favor a subsequent motion seeking dismissal for failure to state a claim. On February 12, 2014, this Court issued an order indicating that it had screened Plaintiff's Complaint pursuant to 28 U.S.C. § 1915A and found that it stated cognizable claims against defendant Gutierrez for use of excessive force and failure to protect Plaintiff, in violation of the Eighth Amendment. (Doc. 6.) While the order finding cognizable claims did not include a full analysis,  the Court conducted the same examination as it does in all screening orders. In other words, the Court's conclusion was based upon the same legal standards as this 12(b)(6) motion.
B. Legal Standard
In considering a motion to dismiss, the court must accept all allegations of material fact in the complaint as true. Erickson v. Pardus , 551 U.S. 89, 93-94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007); Hosp. Bldg. Co. v. Rex Hosp. Trustees , 425 U.S. 738, 740, 96 S.Ct. 1848, 48 L.Ed.2d 338 (1976). The court must also construe the alleged facts in the light most favorable to the plaintiff. Scheuer v. Rhodes , 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), overruled on other grounds by Davis v. Scherer , 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984); Barnett v. Centoni , 31 F.3d 813, 816 (9th Cir.1994) (per curiam). All ambiguities or doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen , 395 U.S. 411, 421, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969). In addition, pro se pleadings are held to a less stringent standard than those drafted by lawyers. See Haines v. Kerner , 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972).
A motion to dismiss pursuant to Rule 12(b)(6) operates to test the sufficiency of the complaint. Rule 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief" in order to "give the defendant fair notice of what the... claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson , 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). "The issue is not whether a plaintiff will ultimately prevail ...