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Murillo v. Holland

United States District Court, E.D. California

April 27, 2017

JOAQUIN MURILLO, Plaintiff,
v.
HOLLAND, et al Defendants.

          FINDINGS AND RECOMMENDATION ON DEFENDANTS' MOTION TO DISMISS (DOC. 53) 21-DAY DEADLINE

          Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         Plaintiff is proceeding on claims under section 1983 against Defendants Warden K. Holland, Deputy Warden J. Gutierrez, and G. Ybarra violation of the Eighth Amendment via the promulgation and implementation of “Guard-One Safety and Security Checks” at CCI. Defendants filed a motion to dismiss (Doc. 53) and Plaintiff filed an opposition (Doc. 56) to which Defendants did not reply. The motion is deemed submitted per Local Rule 230(l ) and, for the reasons discussed herein, should be GRANTED in part and DENIED in part.

         II. LEGAL STANDARD

         A motion to dismiss brought pursuant to Rule 12(b)(6) tests the legal sufficiency of a claim. Dismissal is proper if there is a lack of a cognizable legal theory, or the absence of sufficient facts alleged under a cognizable legal theory. Conservation Force v. Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011), cert. denied, 132 S.Ct. 1762 (2012). In resolving a 12(b)(6) motion, a court's review is generally limited to the operative pleading. Daniels-Hall v. National Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010); Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007); Huynh v. Chase Manhattan Bank, 465 F.3d 992, 1003-04 (9th Cir. 2006); Schneider v. California Dept. of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998).

         To survive a motion to dismiss, a complaint must contain sufficient factual allegations, accepted as true, to state a claim that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)); Conservation Force, 646 F.3d at 1242; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The Court must accept well-pled factual allegations as true and draw all reasonable inferences in favor of the non-moving party. Daniels-Hall, 629 F.3d at 998; Sanders, 504 F.3d at 910; Huynh, 465 F.3d at 996-97; Morales v. City of Los Angeles, 214 F.3d 1151, 1153 (9th Cir. 2000). Pleadings of prisoners proceeding pro se are liberally construed and any doubt is resolved in the inmate's favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012); Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); Silva v. Di Vittorio, 658 F.3d 1090, 1101 (9th Cir. 2011); Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).

         Further, "[i]f there are two alternative explanations, one advanced by defendant and the other advanced by plaintiff, both of which are plausible, plaintiff's complaint survives a motion to dismiss under Rule 12(b)(6)." Starr v. Baca, 652 F.3d 1202, 1216-17. "Plaintiff's complaint may be dismissed only when defendant's plausible alternative explanation is so convincing that plaintiff's explanation is implausible. The standard at this stage of the litigation is not that plaintiff's explanation must be true or even probable. The factual allegations of the complaint need only 'plausibly suggest an entitlement to relief.'" Id. (emphasis in original). "Rule 8(a) 'does not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence' to support the allegations." Id., quoting Twombly, 550 U.S. at 556 (emphasis added in Starr).

         III. FINDINGS

         A. Plaintiff's Allegations

         Plaintiff's general factual allegations are brief:

In July of 2014, K. Holland implemented a practice which causes sleep deprivation in violation of the U.S. Constitution. Sleep deprivation is torture. K. Holland did implement a loud, nose making practice. The torturous practice is called Guard-One Safety/Security Checks, it is carried out every 30-minutes of the day and night. A metal wand is used to bang on the metal cell door in order to register the check. When the wand makes contact with the metal door it causes a loud bang noise inside the cell, followed by a loud beep sound, which the wand itself emits. This practice deprives the Plaintiff of a basic human need. It causes fatigue, stress, anxiety, memory loss, depression, worsens overall health, kills brain cells, possible long term brain damage, sleep deprivation causes physical and psychological damages. The practice awakens the Plaintiff from sleep every 30-minutes of the day and night, it does not allow for REM-sleep.

(Doc. 52, FAC, p. 3.)

         Plaintiff alleges that Warden Holland implemented the Guard-One checks and was deliberately indifferent to his health and safety; was negligent when she failed to correct the unlawful practice; failed to properly investigate his inmate appeal on the issue; and violated his due process rights when she implemented the Guard-One checks on inmates who did not have mental health issues. (Id., p. 4.)

         Plaintiff alleges that Deputy Warden Gutierrez was deliberately indifferent in his implementation and enforcement of the Guard-One checks; was made aware of the problems with the Guard-One checks “via the inmates appeal process”; was negligent in his investigation of Plaintiff's inmate appeals; and violated Plaintiff's due process rights when he implemented the Guard-One checks on inmates who did not have mental health issues. (Id., pp. 4-5.)

         Plaintiff alleges that Sergeant Ybarra was deliberately indifferent in his implementation and enforcement of the Guard-One checks; was made aware of the problems with the Guard-One checks “via the inmates appeal process”; was negligent in his investigation of Plaintiff's inmate appeals and violated Plaintiff's due process rights by failing to interview Plaintiff or other inmates; committed fraud by stating in his report that he had interviewed Plaintiff when he had not; failed to properly supervise officers under his command to ensure the checks were being properly conducted; and was negligent for failing to step into a cell to verify the degree of noise emitted by the Guard-One checks. (Id., pp. 5-6.)

         Plaintiff also alleges that “Unnamed Correctional Officers for A-Yard, 5-Building” on all three shifts violated the Eighth Amendment and were malicious and grossly negligent in their implementation of the Guard-One checks; and violated due process by implementing a mental health practice on inmates who did not have mental health conditions. (Id., p. 6.)

         B. ...


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