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Smith v. Tehama County Sheriff's Department

United States District Court, E.D. California

April 17, 2017

LESLIE SMITH, Plaintiff,



         I. Introduction

         Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant to 42 U.S.C. § 1983. Both parties have consented to the jurisdiction of the undersigned. (ECF Nos. 5, 15.)

         Pending before the court is defendants' motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 16.) For the reasons stated herein, defendants' motion is granted in part and denied in part.

         II. Legal Standard for Motion to Dismiss Brought Pursuant to Federal Rule of Civil Procedure 12(b)(6)

         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 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). Still, 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). In other words, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim upon which the court can grant relief must have facial plausibility. Twombly, 550 U.S. 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.” Iqbal, 556 U.S. at 678. Attachments to a complaint are considered to be part of the complaint for purposes of a motion to dismiss for failure to state a claim. Hal Roach Studios v. Richard Reiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990).

         A motion to dismiss for failure to state a claim should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief. Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984). 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). However, the court's liberal interpretation of a pro se complaint may not supply essential elements of the claim that were not pled. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

         III. Plaintiff's Claims

         This action proceeds on the first amended complaint against defendants Tehama County and Tehama County Sergeant Gibson. (ECF No. 10).

         Plaintiff alleges that on October 23, 2012, he was arrested and taken to the Tehama County Jail. (Id. at 9.) Plaintiff was moved to a six-man cell in January 2013. (Id.) One of the other inmates in the six-man cell was Jakob Peterson.[1] (Id.) On the first day plaintiff arrived at the six-man cell, inmate Peterson threatened to attack plaintiff and cause bodily harm to plaintiff. (Id.) After four days, another inmate informed correctional officers of these threats. (Id.) As a result, Officer Bline moved plaintiff to another cell. (Id.) Officer Bline told plaintiff that she was moving plaintiff because another inmate informed correctional staff that inmate Peterson had been threatening plaintiff, so the move was for plaintiff's safety and protection. (Id.)

         Approximately two weeks later, inmate Peterson was moved into the cell where plaintiff had been relocated. (Id.) Inmate Peterson began threatening plaintiff again. (Id.) On the second day after inmate Peterson's arrival in plaintiff's cell, the inmates were released to pick up their breakfast trays. (Id.) After picking up their trays, the inmates returned to their cells to eat their breakfast. (Id.) After plaintiff sat down at the table with his breakfast tray, inmate Peterson told plaintiff to move because he wanted to sit where plaintiff was sitting. (Id. at 10.) Plaintiff refused to move. (Id.) Inmate Peterson took plaintiff's tray and threw it on to another table. (Id.) Plaintiff retrieved the tray and returned to the table where he (plaintiff) had been sitting. (Id.) Plaintiff asked inmate Peterson to move. (Id.) Inmate Peterson got up and struck plaintiff, knocking him down. (Id.) Plaintiff got up and inmate Peterson knocked him down a second time. (Id.) Plaintiff tried to talk to inmate Peterson, but inmate Peterson struck plaintiff again. (Id.)

         Plaintiff got up and picked up his breakfast tray. (Id.) Plaintiff tried to reason with inmate Peterson, but inmate Peterson threatened plaintiff, stating that “this time, [plaintiff] wouldn't get up.” (Id.) As inmate Peterson started to stand up, plaintiff defended himself by striking inmate Peterson in the chin with the tray. (Id.) This caused a small gash in inmate Peterson's chin. (Id.) Plaintiff tried to defend himself with another tray. (Id.) Inmate Peterson struck plaintiff again, knocking plaintiff to the floor. (Id.) Inmate Peterson dragged plaintiff to the back of the cell by the shower and began kicking plaintiff in the head and ribs. (Id.) Inmate Peterson stomped on plaintiff's chest and punched him in the upper body, head and face. (Id.) Plaintiff blacked out. (Id.)

         Plaintiff remembered that inmate Peterson invited another inmate to participate in the assault. (Id. at 10-11.) When that inmate refused, inmate Peterson began attacking plaintiff again. (Id. at 11.)

         Plaintiff later went to Officer Holte and told him that he needed to be taken to a hospital because he had been attacked. (Id.) Plaintiff was taken to St. Elizabeth Community Hospital. (Id.)

         When plaintiff returned to the jail, he told defendant Gibson that he would like to give a statement regarding the assault. (Id.) Defendant Gibson refused to take plaintiff's statement. (Id.) Defendant Gibson told plaintiff that he had taken statements from other inmates who were in the cell during the attack. (Id.) Plaintiff later learned that the attack was reported as “mutual combat, ” and contained no statements from witnesses or plaintiff. (Id.)

         About one week later, plaintiff told defendant Gibson that he wanted to file a formal complaint against inmate Peterson for the attack. (Id.) Defendant Gibson told plaintiff that if he filed a complaint against inmate Peterson, defendant Gibson would file felony assault charges against plaintiff for striking inmate Peterson with the food tray. (Id.) Plaintiff alleges that defendant Gibson told plaintiff that he would be looking at five years if convicted on those charges. (Id.) Plaintiff declined to file the complaint. (Id.)

         Plaintiff alleges that defendant Gibson violated his Fifth and Fourteenth Amendment rights by failing to protect him from inmate Peterson. (Id. at 3.) Plaintiff alleges that defendant Gibson approved relocating plaintiff to a new cell after the first round of threats by inmate Peterson. (Id.) Plaintiff alleges that two weeks later, defendant Gibson approved moving inmate Peterson to the cell where plaintiff had been relocated, where inmate Peterson later brutally attacked plaintiff. (Id.) Plaintiff alleges that defendant Gibson approved the transfer of inmate Peterson to plaintiff's cell knowing that inmate Peterson had previously threatened plaintiff with great bodily harm. (Id.)

         Plaintiff alleges that defendant Tehama County violated his Fifth and Fourteenth Amendment rights by enacting a uniform policy that contributed to his attack. (Id. at 4.) Plaintiff alleges that shortly after his confinement at the jail, the Tehama County Sheriff's Department changed its uniform policy so that inmates who were not in protective custody were required to wear solid colors with a different color based on the crimes they were charged with. (Id.) This meant that the color of the uniform informed other inmates what crime the inmate had been charged with. (Id.) Inmates in protective custody wore the same color uniform “representative of their charges except that their uniforms have alternating strips, white and black for sex related crimes.” (Id.) Plaintiff goes on to allege that the change in uniform policy “identify's my alleged crimes as sex-related, which lead to the assault on myself, ” in apparent reference to the assault by inmate Peterson. (Id.)

         Plaintiff alleges that based on this uniform policy, all inmates knew if an inmate was in protective custody based on a sex-related criminal charge. (Id.) Plaintiff alleges that this change in policy was a contributing factor to the inmate assaults within the jail, including his own assault. (Id.)

         Attached to the first amended complaint is a declaration by plaintiff dated October 17, 2013, in which he describes an incident involving inmate Mat Jones and himself. (Id. at 12.) Plaintiff alleges that on October 17, 2013, inmate Jones reached through the bars and grabbed plaintiff's shirt and struck at plaintiff with his other hand through the bars. (Id.) Plaintiff broke free. (Id.) Inmate Jones told plaintiff that he was going to get plaintiff and hurt him if he got the chance. (Id.) Plaintiff alleges that after dinner, inmate Jones began ranting about how he was going to hurt plaintiff. (Id.) At 6:30 p.m., Correctional Officer Bernard came in to do the count. (Id.) Inmate Jones told Correctional Officer Bernard that she better move him because there was going to be problems and that he would ...

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