United States District Court, S.D. California
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
JUDGE RE: MOTION TO DISMISS [ECF NO. 12]
MITCHELL D. DEMBIN UNITED STATES MAGISTRATE JUDGE.
Report and Recommendation is submitted to the United States
District Judge Janis L. Sammartino pursuant to 28 U.S.C.
§ 636(b)(1) and Local Civil Rule 72.1(c) of the United
States District Court for the Southern District of
reasons set forth herein, the Court RECOMMENDS
Defendants' Motion to Dismiss be GRANTED IN PART AND
DENIED IN PART.
Otoñiel Tyler Pennings (“Plaintiff”) is a
state prisoner proceeding pro se and in forma
pauperis. (ECF Nos. 1, 6). On March 7, 2016, Plaintiff
filed a complaint pursuant to 42 U.S.C. § 1983. (ECF No.
1). Plaintiff's complaint sets forth various claims
against four named individuals working at the George Bailey
Detention Facility (“GBDF”) alleging that they
violated his civil rights by: (1) retaliating against him in
violation of the First Amendment; (2) imposing cruel and
unusual conditions of confinement in violation of the Eighth
Amendment; (3) treating him inhumanely in violation of the
Fourteenth Amendment's Equal Protection Clause; (4)
failing to provide Plaintiff his due process rights in
violation of the Fourteenth Amendment; (5) using excessive
force against him; (6) assaulting and battering him; (7)
providing inadequate medical care; (8) providing negligent
medical care; and (9) intentionally inflicting emotional
distress upon him. (See id.).
October 12, 2016, Defendants Stapleton and Benjamin filed a
motion to dismiss some of the claims against them. (ECF No.
12). Defendants contend that: (1) Plaintiff's First
Amendment retaliation claim against Defendant Benjamin should
be dismissed because Defendant Benjamin did not
“prevent Plaintiff from engaging in protected
conduct[;]” (2) Plaintiff's Eighth Amendment claim
against both Defendants should be dismissed because Plaintiff
did not allege that Defendants caused the unsanitary living
conditions; (3) Plaintiff's denial of religious
accommodations claim should be dismissed because Plaintiff
did not allege “facts indicating that the responding
defendants denied him the kosher meals, or that they were
necessary for him to practice” his
religion; (4) Plaintiff's destruction of
property claim against Defendant Stapleton must be dismissed
because “Plaintiff does not allege the absence of an
administrative remedy to challenge property
destruction[;]” (5) Plaintiff's intentional
infliction of emotional distress claim against Defendant
Stapleton should be dismissed because he does not allege
extreme and outrageous conduct; and (6) the state law claims
should be dismissed as untimely. (ECF No. 12-1 at 3-7).
October 13, 2016, this Court ordered Plaintiff to file a
Response in Opposition to Defendants' Motion to Dismiss
on or before November 3, 2016, and Defendants to file a reply
on or before November 10, 2016. (ECF No. 13). On November 2,
2016, Plaintiff requested a 90-day continuance to file his
opposition to Defendants' motion to dismiss in a
duplicative action. (Pennings v. San Diego Sheriff's
Dep't, et al., S.D. Cal. Civil Case No.
16cv2318-CAB-DHB, ECF No. 7). On January 10, 2017, District
Judge Bencivengo closed Plaintiff's duplicative action
and denied Plaintiff's motion for a continuance without
prejudice to be re-filed in this case. (Id. at ECF
No. 11). Plaintiff did not re-file the motion as directed,
but the Court nevertheless amended the briefing schedule and
ordered Plaintiff to file a Response in Opposition to
Defendants' Motion to Dismiss on or before February 8,
2017, and Defendants to file a reply on or before February
15, 2017. (ECF No. 17). The Court granted Plaintiff one
continuance and ordered him to file a Response in Opposition
to Defendants' Motion to Dismiss on or before March 16,
2017. (ECF Nos. 21, 22). On March 17, 2017, the date of his
signature, Plaintiff filed a Response in Opposition to
Defendants' Motion to dismiss. (ECF No. 25). The Court
will consider Plaintiff's opposition even though it was
not timely filed.
opposes the motion to dismiss on the grounds that: (1)
Defendant Benjamin retaliated against Plaintiff by ordering
he be moved “to a dirty, feces-covered cell, in a
module used as ‘punishment[;]''' (2)
Defendant Stapleton intentionally inflicted emotional
distress by calling Plaintiff derogatory names and assaulting
him because of his religion; and (3) his state law claims are
timely because he mailed his Complaint on February 26,
2016. (Id. at 5-9).
reply that Plaintiff's Complaint should be dismissed
because: (1) Plaintiff failed to timely file his opposition;
(2) Plaintiff provided no proof that his Complaint was mailed
on February 26, 2016; and (3) Plaintiff's Complaint
“consist[s] of mere conclusions in the form of
allegations . . . . [that] fall woefully short of
establishing a claim against Defendants for any
constitutional violation.” (ECF No. 26 at 2-5).
facts are taken from Plaintiff's Complaint and are not to
be construed as findings of fact by the Court.
claims arise from a series of events that occurred while
Plaintiff was held at GBDF as a subpoenaed witness for an
evidentiary hearing in the criminal case of another state
prisoner. (ECF No. 1 at 3). Plaintiff was placed in an
administrative segregation unit (“Module 5A”) and
immediately “noticed unconstitutional living conditions
. . . and began the ‘grievance process.'”
(Id.). Plaintiff filed grievances alleging cruel and
unusual living conditions, lack of access to the law library
and law books, failure to provide three hours of recreation
time, failure to provide a kosher diet or religious services
and reading material and that Defendants were posting
“excessive personal and private information” on
cell doors. (Id. at 4).
Complaint describes his claim in nine counts as follows:
count one, Plaintiff contends that Defendants Barrera,
Stapleton and Benjamin violated his First Amendment right to
freedom of speech by retaliating against him for filing
grievances. (Id. at 4-6).
count two, Plaintiff contends that Defendants Barrera,
Sanchez, Stapleton and Benjamin imposed cruel and unusual
conditions of confinement in violation of the Eighth
Amendment. (Id. at 7-8).
count three, Plaintiff contends Defendants Barrerra and
Sanchez violated his equal protection rights when they
treated him differently than other inmates and made
“racially insensitive slurs” targeted at his
Jewish faith. (Id. at 8-9).
count four, Plaintiff contends that Defendants Benjamin,
Barrera, Sanchez and Stapleton violated his due process
rights under the Fourteenth Amendment. (Id. at 9;
ECF No. 1-1 at 1).
count five, Plaintiff contends that on November 17, 2014,
Defendants Benjamin, Stapleton, Barrera and Sanchez used
excessive force upon him. (ECF No. 1-1 at 1-3).
count six, Plaintiff contends Defendants Barrera, Sanchez and
Stapleton assaulted and battered him during the excessive
force incident explained in count six. (Id. at 5).
count seven, Plaintiff contends that he received inadequate
medical care from an unknown person treating Plaintiff's
injuries sustained during the assault, battery and excessive
force incident. (Id. at 5-6).
count eight, Plaintiff contends that some unknown person
committed medical malpractice and was medically negligent
when treating Plaintiff's injuries. (Id. at 6).
count nine, Plaintiff contends Defendants Barrera, Sanchez,
Stapleton and Benjamin intentionally inflicted emotional
distress upon Plaintiff. (Id.).
STANDARD OF REVIEW
Rule 12(b)(6) motion tests the legal sufficiency of a
claim.” Navarro v. Block, 250 F.3d 729, 732
(9th Cir. 2001). “Under Federal Rule of Civil Procedure
8(a)(2), a pleading must contain a short and plain statement
of the claim showing that the pleader is entitled to
relief.” Ashcroft v. Iqbal, 556 U.S. 662,
677-78 (2009) (internal quotations omitted). The pleader must
provide the Court with “more than an unadorned,
Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007)). “Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Iqbal, 556 U.S. at 678. “Although for the
purposes of a motion to dismiss [a court] must take all of
the factual allegations in the complaint as true, [a court
is] not bound to accept as true a legal conclusion couched as
a factual allegation.” Iqbal, 556 U.S. at 678
(internal quotations omitted).
pro se pleading is construed liberally on a
defendant's motion to dismiss for failure to state a
claim. Thompson v. Davis, 295 F.3d 890, 895 (9th
Cir. 2002) (citing Ortez v. Washington Cnty. Oregon,
88 F.3d 804, 807 (9th Cir. 1996)). The pro se
pleader must still set out facts in his complaint that bring
his claims “across the line from conceivable to
plausible.” Twombly, 550 U.S. at 570. A court
“may not supply essential elements of the claim that
were not initially pled.” Ivey v. Bd. of
Regents, 673 F.2d 266, 268 (9th Cir. 1982). A pro
se litigant is entitled to notice of the deficiencies in
the complaint and an opportunity to amend, unless the
complaint's deficiencies cannot be cured by amendment.
See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir.
Court will only address challenged claims brought against
Defendants Benjamin and Stapleton. Those claims are: (1)
count one, First Amendment retaliation against Defendant
Benjamin; (2) count two, Eighth Amendment cruel and unusual
punishment against both Defendants; (3) count three,
Fourteenth Amendment violation of the Equal Protection Clause
against Defendant Benjamin; (4) count four, Fourteenth
Amendment violation of due process against Defendant
Stapleton; (5) count nine, intentional infliction of
emotional distress against Defendant Stapleton; and (6) the
timeliness of Plaintiff's state law claims. (See
ECF Nos. 1, 12-1).
First Amendment ...