United States District Court, E.D. California
FINDINGS AND RECOMMENDATION ON DEFENDANTS' MOTION
TO DISMISS (DOC. 53) 21-DAY DEADLINE
Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE
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.
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).
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.
"[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).
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.)
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.)
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.)
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.)
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.)