United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS REGARDING
DEFENDANTS' MOTION TO DISMISS, (ECF NO. 17),
PLAINTIFF'S MOTION FOR LEAVE TO AMEND FIRST AMENDED
COMPLAINT, (ECF NO. 24), AND PLAINTIFF'S MOTION FOR
SCHEDULING ORDER, (ECF NO. 23)
BARBARA A. McAULIFFE, UNITED STATES MAGISTRATE JUDGE
Mark Hodge (“Plaintiff”) is a state prisoner
proceeding pro se and in forma pauperis in this civil rights
action pursuant to 42 U.S.C. § 1983. This action
currently proceeds on Plaintiff's first amended complaint
against Defendants Gonzalez and Flores for unconstitutional
conditions of confinement, against Defendant Gonzalez for
excessive force, and against Defendant Flores for failure to
protect Plaintiff, all in violation of the Eighth Amendment.
This matter was referred to the undersigned pursuant to 28
U.S.C. § 636(b)(1)(B) and Local Rule 302.
10, 2016, Defendants moved to dismiss this action on the
grounds that it is clear from the face of the first amended
complaint that Plaintiff's claims are barred by the
holdings of Heck v. Humphrey, 512 U.S. 477, 480
(1994), and Edwards v. Balisok, 520 U.S. 641, 643
(1997). (ECF No. 17.) Defendants also filed a request for
judicial notice in support. (ECF No. 18.) On May 26, 2016,
Plaintiff filed an opposition to the motion, (ECF No. 20),
and on June 1, 2016, Defendants filed a reply to
Plaintiff's opposition, (ECF No. 21.)
23, 2016, Plaintiff lodged a proposed second amended
complaint. (ECF No. 22.) On July 25, 2016, Plaintiff filed a
motion for scheduling order, asserting that since he lodged a
second amended complaint correcting the defects in his first
amended complaint, Defendants could not continue to argue for
dismissal on those grounds anymore. (ECF No. 23.)
August 15, 2016, Plaintiff filed a motion to amend his first
amended complaint. (ECF No. 24.) On September 6, 2016,
Defendants filed an opposition to Plaintiff's motion to
amend, (ECF No. 25), and on September 14, 2016, Plaintiff
filed a reply to that opposition, (ECF No. 26.)
motions are deemed submitted. Local Rule 230(1).
Summary of First Amended Complaint
first amended complaint concerns allegations against
Defendants Gonzalez and Flores while he was housed at
Corcoran State Prison, where Defendants were employed.
Plaintiff alleges that on January 8, 2013, he was placed on
the program holding cell in Facility 3A for “about an
hour” while handcuffed. (First Am. Compl., ECF No. 8,
p. 3.) Plaintiff recently had rotator cuff surgery, as well
as foot surgery, involving the placement of screws in
asked Defendant Gonzalez if he could remove the handcuffs and
give Plaintiff shower shoes, because of the pain from
Plaintiff's recent surgery. Defendant Gonzalez denied
Plaintiff's request. Plaintiff alleges that after an
hour, he began to bang on the holding tank door while
handcuffed. Plaintiff was told by Defendants Gonzalez and
Flores that “I ain't got nothing coming.”
(Id. at 5.) Plaintiff specifically told both
Defendants about his recent surgery, and again asked to have
his handcuffs removed and for shower shoes. Plaintiff also
asked to see a doctor. Defendants left him in the holding
cage for another hour.
alleges that after an hour, the following occurred:
Gonzalez and Flores came back into the holding tank area and
Gonzalez pulled out his O.C. pepper spray and opened the food
port and sprayed me point blank range at my genitals causing
unbearable pain, stating, this is for messing with our woman
folk; then he and Flores started laughing and coughing and
closed the food port and left out. I immediately could not
talk, or breathe, being inside the Plexiglas enclosed holding
tank. The left me in there like that for about ten minutes,
and then correctional officers Shelton and Meier came in and
escorted me barefooted out to the front of the 3A program
(Id. at 5, 6.)
alleges that when Gonzales came into the holding tank after
the first hour, Plaintiff had let his underwear fall to the
floor in order to have something to stand on. Plaintiff
alleges that when Gonzales sprayed Plaintiff with the pepper
spray through the food port door, he sprayed him “point
blank” in the genitals. Plaintiff alleges that earlier
that morning, Defendant Gonzales admitted that he was aware
that Plaintiff was having chest pains and breathing problems.
Plaintiff told Gonzales that he suffered from asthma and used
alleges that he was placed in the holding cell to be prepared
for escort to the Administrative Segregation Unit, but he
knew that Defendants never intended to escort him “like
they claimed in their reports, ” because he was never
given a jumpsuit or shower shoes for the escort.
(Id. at 6-7.)
Defendants' Motion to Dismiss
move to dismiss Plaintiff's first amended complaint under
Federal Rule of Civil Procedure 12(b)(6). They argue that if
Plaintiff were successful in this section 1983 action, that
judgment would render certain rule violations that Plaintiff
was convicted of invalid. Therefore, they assert that this
action is barred by the favorable termination rule of
Heck and Edwards.
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 pursuant to
Federal Rule of Civil Procedure 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). However, the Court need not credit “naked
assertions, ” “labels and conclusions” or
“a formulaic recitation of the elements of a cause of
action.” See Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555-57 (2007).
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). However, a court's liberal interpretation of a pro
se complaint may not supply essential elements of the claim
that were not pled. Ivey v. Board of Regents of Univ. of
Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
long been established that state prisoners cannot challenge
the fact or duration of their confinement in a section 1983
action and their sole remedy lies in habeas corpus relief.
Wilkinson v. Dotson, 544 U.S. 74, 78 (2005). Often
referred to as the favorable termination rule or the
Heck bar, this exception to section 1983's
otherwise broad scope applies whenever state prisoners
“seek to invalidate the duration of their
confinement-either directly through an injunction compelling
speedier release or indirectly through a judicial
determination that necessarily implies the unlawfulness of
the State's custody.” Wilkinson, 544 U.S.
at 81; Heck v. Humphrey, 512 U.S. 477, 482, 486-487
(1994); Edwards v. Balisok, 520 U.S. 641, 644
(1997). Thus, “a state prisoner's [section] 1983
action is barred (absent prior invalidation)-no matter the
relief sought (damages or equitable ...