United States District Court, E.D. California
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE.
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.)
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.
Legal Standard for Motion to Dismiss Brought Pursuant to
Federal Rule of Civil Procedure 12(b)(6)
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.
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).
action proceeds on the first amended complaint against
defendants Tehama County and Tehama County Sergeant Gibson.
(ECF No. 10).
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. (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.
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.
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.
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.)
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
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.)
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.)
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.
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.)
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.
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 ...