United States District Court, E.D. California
M. KELLISON UNITED STATES MAGISTRATE JUDGE.
a prisoner proceeding pro se, brings this civil rights action
pursuant to 42 U.S.C. § 1983. Pursuant to the written
consent of all parties, this case is before the undersigned
as the presiding judge for all purposes, including entry of
final judgment. See 28 U.S.C. § 636(c). Pending
before the court is defendants' motion to dismiss (Doc.
22). Plaintiff filed an opposition to the motion (Doc. 23);
defendants filed a reply (Doc. 24). In addition, plaintiff
has filed two motions to amend his complaint (Docs. 16, 19),
and defendants have filed a motion to stay discovery (Doc.
brings this action for use of excessive force in violation of
the Eighth Amendment. Originally filed in June 2015, after
being served the defendant filed a motion to dismiss. In
response, plaintiff filed a motion to amend (Doc. 16) and his
first amended complaint (Doc. 15). Federal Rule of Civil
Procedure 15(a)(1) provides that a party may amend his
pleading once as a matter of right within 21 days after
serving it, or within 21 days of a responsive pleading or
motion under Rule 12(b), (e), or (f). Here, plaintiff filed
his amended complaint within the time provided by Rule 15(a),
thus a motion to amend was unnecessary and will be denied as
such. Plaintiff then filed a duplicative motion to amend
(Doc. 19) and amended complaint (Doc. 20). It is unclear to
the court whether this was in error or whether these
documents somehow ended up being filed twice by accident.
Either way, the second motion to amend and second amended
complaint are duplicative, and will be denied as such. The
operative complaint in this action is plaintiff's first
amended complaint (Doc. 15). As defendant's original
motion to dismiss was aimed at the original complaint, upon
the filing of the first amended complaint, defendant withdrew
the motion to dismiss (Doc. 14). Thereafter, and in response
to plaintiff's amended complaint, defendant filed a new
motion to dismiss (Doc. 22), which is now pending.
addition, given the pending motion to dismiss, defendant
filed a motion to stay discovery (Doc. 25) until resolution
of the motion to dismiss. Plaintiff filed a notice of
non-opposition to that motion. As no answer has been filed,
and no scheduling order issued, the motion to stay discovery
will therefore be granted. A scheduling order addressing
discovery deadlines will be issued after an answer to the
complaint is filed.
action proceeds on the first amended complaint. Therein,
plaintiff alleges that defendant Lucca used unnecessary and
excessive force maliciously against him. He contends that he
was placed in a holding cage wherein he was required to
undergo an unclothed body search by the defendant. After the
search was complete, he was given a pair of boxers to wear.
At that time, plaintiff was suicidal and informed defendant
Lucca that he wanted to kill himself. As a result, defendant
placed him in restraints and required a urinalysis. Defendant
Lucca handled him aggressively and was verbally abusive to
him. Plaintiff attempted to provide urine for the test, but
was unable out of fear and his suicidal thoughts. Defendant
Lucca became irate and stated, “watch motherfucker,
your gonna get yours, ” intimating plaintiff's
safety was in jeopardy. Defendant Lucca was aggressive while
placing plaintiff back in the holding cage. Defendant Lucca
then escorted plaintiff to suicide watch, with plaintiff in
restraints. During the escort to suicide watch, defendant
Lucca sprayed plaintiff with pepper spray on the back, arm
and buttock areas. Defendant Lucca laughed, and stated,
“I told you so.” The pepper spray made
plaintiff's torso, boxers, arm and buttocks dripping wet,
and covered his anus which resulted in extreme pain while
defecating for three days. Defendant Lucca took plaintiff to
the medical clinic for decontamination. Because defendant
Lucca was present, plaintiff was fearful of telling medical
what actually happened, so Lucca reported he accidently
pepper sprayed plaintiff which resulted in the incident being
reported as an unusual occurrence instead of use of force.
MOTION TO DISMISS
brings this motion to dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(6) for failure to state a claim.
Specifically, defendant contends the first amended complaint
fails to state a claim for use of excessive force as it is
clear from the facts alleged and the attachment to the
complaint that the discharge of the pepper spray was
accidental and therefore cannot be the basis for use of
excessive force claim. In addition, defendant claims he is
entitled to qualified immunity as the discharge of pepper
spray was accidental.
12(b)(6) 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,
the court must accept all allegations of material fact in the
complaint as true. See Erickson v. Pardus, 551 U.S.
89, 93-94 (2007). The court must also construe the alleged
facts in the light most favorable to the plaintiff. See
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see
also Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S.
738, 740 (1976); 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 (1969). Legally
conclusory statements, not supported by actual factual
allegations, need not be accepted. See Ashcroft v.
Iqbal, 129 S.Ct. 1937, 1949-50 (2009). Pro se pleadings
are held to a less stringent standard than those drafted by
lawyers. See Haines v. Kerner, 404 U.S. 519, 520
(1972). However, 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. 662, 544, 555-57 (2007).
deciding a Rule 12(b)(6) motion, the court generally may not
consider materials outside the complaint and pleadings.
See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir.
1998); Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir.
1994). The court may, however, consider: (1) documents whose
contents are alleged in or attached to the complaint and
whose authenticity no party questions, see Branch,
14 F.3d at 454; (2) documents whose authenticity is not in
question, and upon which the complaint necessarily relies,
but which are not attached to the complaint, see Lee v.
City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001);
and (3) documents and materials of which the court may take
judicial notice, see Barron v. Reich, 13 F.3d 1370,
1377 (9th Cir. 1994).
treatment a prisoner receives in prison and the conditions
under which the prisoner is confined are subject to scrutiny
under the Eighth Amendment, which prohibits cruel and unusual
punishment. See Helling v. McKinney, 509 U.S. 25, 31
(1993); Farmer v. Brennan, 511 U.S. 825, 832 (1994).
The Eighth Amendment “embodies broad and idealistic
concepts of dignity, civilized standards, humanity, and
decency.” Estelle v. Gamble, 429 U.S. 97, 102
(1976). Conditions of confinement may, however, be harsh and
restrictive. See Rhodes v. Chapman, 452 U.S. 337,
347 (1981). Nonetheless, prison officials must provide
prisoners with “food, clothing, shelter, sanitation,
medical care, and personal safety.” Toussaint v.
McCarthy, 801 F.2d 1080, 1107 (9th Cir. 1986). A prison
official violates the Eighth Amendment only when two
requirements are met: (1) objectively, the official's act
or omission must be so serious such that it results in the
denial of the minimal civilized measure of life's
necessities; and (2) subjectively, the prison official must
have acted unnecessarily and wantonly for the purpose of
inflicting harm. See Farmer, 511 U.S. at 834. Thus,
to violate the Eighth Amendment, a prison official must have
a “sufficiently culpable mind.” See id.
prison officials stand accused of using excessive force, the
core judicial inquiry is “whether force was applied in
a good-faith effort to maintain or restore discipline, or
maliciously and sadistically to cause harm.” Hudson
v. McMillian, 503 U.S. 1, 6-7 (1992); Whitley v.
Albers, 475 U.S. 312, 320-21 (1986). The
“malicious and sadistic” standard, as opposed to
the “deliberate indifference” standard applicable
to most Eighth Amendment claims, is applied to excessive
force claims because prison officials generally do not have
time to reflect on their actions in the face of risk of
injury to inmates or prison employees. See Whitley,
475 U.S. at 320-21. In determining whether force was
excessive, the court considers the following factors: (1) the
need for application of force; (2) the extent of injuries;
(3) the relationship between the need for force and the
amount of force used; (4) the nature of the threat reasonably
perceived by prison officers; and (5) efforts made to temper
the severity of a forceful response. See Hudson, 503
U.S. at 7. The absence of an emergency situation is probative
of whether force was applied maliciously or sadistically.
See Jordan v. Gardner, 986 F.2d 1521, 1528 (9th Cir.
1993) (en banc). The lack of injuries is also probative.
See Hudson, 503 U.S. at 7-9. Finally, because the
use of force relates to the prison's legitimate
penological interest in maintaining security and order, the
court must be deferential to the conduct of prison officials.
See Whitley, 475 U.S. at 321-22.
undersigned agrees with defendant's contention that an
accidental use of force does not suffice for an Eighth
Amendment violation. See Wilson v. Seiter, 501 U.S.
294, 300 (1991). However, reading the complaint in the light
most favorable to plaintiff, as the court must, plaintiff
alleges the actions of the defendant were not accidental but
malicious and done with the intent to harm or punish
plaintiff. While the medical report does indicate the
application of the pepper spray was done accidentally, and
the notes indicate that is was as plaintiff reported, the
complaint explains plaintiff did not state the spraying was
accidental. Instead, plaintiff alleges that he was fearful of
reporting what happened so he stayed silent, that it was
actually defendant Lucca who informed the nurse that it was
an accidental spray. In addition, plaintiff alleges in the
complaint that defendant Lucca sprayed him with the pepper
spray in direct response to plaintiff being unable to provide
a urine test and plaintiff's suicidal statement.
truth of the allegations is not weighed in resolving a motion
to dismiss. See Erickson, 551 U.S. at 93-94. Rather,
the alleged facts are taken as true so long as they are
reasonably plausible. Here, it is reasonably plausible that
the defendant intentionally sprayed plaintiff with the pepper
spray. There is nothing in the complaint, even considering
the medical notes attached thereto, which ...