Anderson v. Gonzales

          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 ...