United States District Court, E.D. California
JOSEPH E. ANDERSON, Plaintiff,
v.
A. GONZALES, et al., Defendants.
FINDINGS AND RECOMMENDATION RECOMMENDING
DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S SECOND
AMENDED COMPLAINT BE DENIED (ECF No. 15) FOURTEEN (14) DAY
DEADLINE (ECF NO. 15)
BARBARA A. MCAULIFFE UNITED STATES MAGISTRATE JUDGE
FINDINGS
AND RECOMMENDATION
I.
Introduction
Plaintiff
Joseph E. Anderson (“Plaintiff) is state prisoner
proceeding pro se and in forma pauperis in this civil rights
action pursuant to 42 U.S.C. § 1983. This action
proceeds on Plaintiffs second amended complaint against
Defendant Laita for excessive force in violation of the
Eighth Amendment, and against Defendant Gonzales for failure
to intervene in the use of excessive force in violation of
the Eighth Amendment and failure to protect from an assault
by another inmate in violation of the Eighth Amendment.
Currently
before the Court is Defendants’ motion to dismiss (1)
Plaintiffs Eighth Amendment claim against Defendant Laita;
and (2) Plaintiffs claim for failure to intervene in the use
of excessive force against Defendant Gonzales.[1] (ECF No. 27.) The
grounds for Defendants’ motion are that (1)
Plaintiff’s second amended complaint fails to state a
claim for relief pursuant to Federal Rule of Civil Procedure
12(b)(6), and (2) Defendants are entitled to qualified
immunity from suit. (ECF No. 15.) Plaintiff opposed the
motion, (ECF No. 27), and Defendants replied to
Plaintiff’s opposition, (ECF No. 28). The motion is
deemed submitted. Local Rule 230(l).
II.
Motion to Dismiss for Failure to State a Claim
A.
Legal Standard
Rule
12(b)(6) of the Federal Rules of Civil Procedures provides
for motions to dismiss for “failure to state a claim
upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6). In considering a motion to dismiss under Rule
12(b)(6), the court must accept as true the allegations of
the complaint in question, Erickson v. Pardus, 551
U.S. 89 (2007), and construe the pleading in the light most
favorable to the plaintiff. Jenkins v. McKeithen,
395 U.S. 411, 421 (1969); Meek v. County of
Riverside, 183 F.3d 962, 965 (9th Cir. 1999). To survive
dismissal for failure to state a claim, a pro se complaint
must contain more than “naked assertions, ”
“labels and conclusions” or “a formulaic
recitation of the elements of a cause of action.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57
(2007). A claim upon which the court can grant relief must
have facial plausibility. Id. at 570. “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). In general, pro se pleadings are held to a less
stringent standard than those drafted by lawyers. Haines
v. Kerner, 404 U.S. 519, 520 (1972). The court has an
obligation to construe such pleadings liberally. Bretz v.
Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en
banc).
B.
Relevant Allegations in Second Amended Complaint
Plaintiff’s
factual allegations are brief. He alleges that he refused to
enter his cell because he did not want to live with an inmate
that was in a gang. Defendant Laita handcuffed Plaintiff and
dragged him into his cell, where he got into a fight with the
inmate in his cell. Defendant Gonzales stood by and did
nothing. Plaintiff’s left wrist was broken when
Defendant Laita handcuffed him and dragged him into the cell.
C.
Defendant’s Motion to Dismiss
Defendants
first argue that Plaintiff’s has failed to state an
Eighth Amendment excessive force claim against Defendant
Laita because he failed to allege facts showing that
Defendant Laita utilized excessive force against him. They
argue that although Plaintiff alleged an injury that is
greater than de minimis, the force Defendant Laita applied
“was the least amount of force to compel
Plaintiff’s compliance.” (ECF No. 51-1, p. 4.)
Defendants emphasize Plaintiff’s admission that he was
a prisoner who refused orders to enter his cell. Defendants
also argue that Plaintiff physically resisted.
Second,
Defendants note that Plaintiff’s Eighth Amendment
failure to protect claim against Defendant Gonzales is
entirely dependent on the allegations of excessive force
against Defendant Laita. They argue that since there was no
excessive force by Defendant Laita, there can be no liability
against Defendant Gonzales either.
Lastly,
Defendants argue that they both are entitled to qualified
immunity because of the inadequate factual allegations in the
second amended complaint. Even if construed in the light most
favorable to Plaintiff, Defendants argue that
Plaintiff’s complaint has neither established a
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