United States District Court, S.D. California
REPORT AND RECOMMENDATION GRANTING DEFENDANTS'
MOTION TO DISMISS CLAIMS AGAINST DEFENDANT KRALL [ECF No.
L. Burkhardt, United States Magistrate Judge
Elvis Jones, a state prisoner proceeding pro se and
in forma pauperis, filed a complaint in this Court
on September 19, 2016, alleging civil rights violations
pursuant to 42 U.S.C. § 1983 against Defendants Dr. T.
Krall (erroneously sued as “Dr. Kroll”) and Dr.
C. Daub (erroneously sued as “Dr. Daubs”). (ECF
No. 1.) Plaintiff's complaint alleges that Dr. Krall and
Dr. Daub violated his Eighth Amendment right to be free from
cruel and unusual punishment when they failed to protect him
from an attack by another inmate while housed at the Richard
J. Donovan Correctional Facility. (Id.)
before the Court is Defendants' motion to dismiss the
claims alleged in Plaintiff's complaint against Defendant
Krall. (ECF No. 7.) In response to Defendants' motion,
Plaintiff has filed a statement of non-opposition titled,
“Agreement to dismiss Dr. Kroll as defendant from
Complaint.” (ECF No. 11.)
Court submits this Report and Recommendation to United States
District Judge Larry A. Burns pursuant to 28 U.S.C. §
636(b)(1) and Local Civil Rule 72.1 of the Local Rules of
Practice for the United States District Court for the
Southern District of California. After a thorough review of
Plaintiff's complaint, Defendants' motion to dismiss,
and Plaintiff's response thereto, and for the reasons set
forth below, the Court RECOMMENDS that
Defendants' motion to dismiss (ECF No. 7) be
complaint alleges that Defendants Krall and Daub violated
Plaintiff's Eighth Amendment right when they failed to
protect him from an attack by another inmate. Specifically,
Plaintiff alleges that Defendants allowed an inmate gang
member and enemy of Plaintiff's, inmate Pride, into the
mental health program from which Plaintiff was receiving
treatment. (ECF No. 1 at 5-7.) As a result, Plaintiff
alleges, Plaintiff was attacked by another inmate on the
orders of inmate Pride. (Id. at 4, 7.) Plaintiff
sustained a broken jaw as a result of the attack.
(Id. at 4-5.)
prison official violates an inmate's Eighth Amendment
right to be free from cruel and unusual punishment when he
acts with deliberate indifference to a substantial risk of
serious harm to the inmate. Farmer v. Brennan, 511
U.S. 825, 828 (1994). The deliberate indifference standard
involves both an objective and subjective prong. Id.
at 834. Under the objective prong, the alleged deprivation
suffered as a result of the official's act or omission to
act must have been “sufficiently serious.”
Id. Under the subjective standard, the prison
official must have had a “sufficiently culpable state
of mind, ” which, in the context of prisoner §
1983 cases, is one of deliberate indifference. Id.
(quoting Wilson v. Seiter, 501 U.S. 294, 297
(1991)). To act with deliberate indifference, a prison
official must know of and disregard an excessive risk to an
inmate's health or safety. Id. at 837. That is,
the official must both be aware of facts from which the
inference could be drawn that a substantial risk of serious
harm exists and draw the inference. Id.
under § 1983 arises only upon a showing of personal
participation by the defendant. Taylor v. List, 880
F.2d 1040, 1045 (9th Cir. 1989). Within the context of §
1983, a person subjects another to the deprivation of a
constitutional right only “if he does an affirmative
act, participates in another's affirmative act, or omits
to perform an act which he is legally required to do that
causes the deprivation of which complaint is made.”
Preschooler II v. Clark Cty. Sch. Bd. of Trs., 479
F.3d 1175, 1183 (9th Cir. 2007) (quoting Johnson v.
Duffy, 588 F.2d 740, 743 (9th Cir. 1978)).
Defendants argue that Plaintiff's claims against Dr.
Krall should be dismissed because “the Complaint
contains virtually no details about Defendant Krall's
alleged involvement or culpability.” (ECF No. 7-1 at
4.) “The only allegations about Defendant Krall,
” Defendants argue, “are that Krall is a
psychologist, and that Krall met with inmate Pride one time
about the EOP program.” (Id.)
Court agrees with Defendants that Plaintiff's complaint
fails to allege sufficient facts both that Defendant Krall
personally participated in actions resulting in the
complained of deprivation and that Defendant Krall was
deliberately indifferent to a substantial risk of harm to
Plaintiff. Plaintiff's complaint makes only two mentions
of Defendant Krall: that Dr. Krall is a psychiatrist or
psychologist and that he had met with inmate Pride concerning
inmate Pride's need of mental health services. (ECF No. 1
at 2, 5.) The complaint does not allege that Dr. Krall was in
any way involved in allowing inmate Pride into the same
mental health program from which Plaintiff was receiving
treatment or that he did so with knowledge that inmate Pride
posed an excessive risk of harm to Plaintiff. Thus, in light
of both Plaintiff's failure to allege that Defendant
Krall personally participated in the events that Plaintiff
complains violated his Eighth Amendment right, see
Taylor, 880 F.2d at 1045, and Plaintiff's statement
agreeing to dismiss his claims against Defendant Krall (ECF
No. 11), the Court recommends that Defendants' motion to
dismiss (ECF No. 7) be GRANTED.
IT IS HEREBY RECOMMENDED that the District Court issue an
Order: (1) Accepting this Report and Recommendation; (2)
GRANTING Defendants' motion to dismiss the claims in
Plaintiff's complaint against Defendant Krall (ECF No.
7); and (3) DISMISSING without prejudice Plaintiff's
remaining claims against Defendant Krall.
IS ORDERED that no later than May 2, 2017, any party
to this action may file written objections with the Court and
serve a copy on all parties. The document should be captioned
“Objections to Report and Recommendation.”
IT IS FURTHER ORDERED that any reply to the
objections shall be filed with the Court and served on all
parties no later than May 9, 2017. The parties are advised
that failure to file objections within the specified time may
waive the right to raise those objections on appeal of the
Court's order. See Martinez v. Ylst, 951 F.2d 1153, 1156
(9th Cir. 1991).