United States District Court, S.D. California
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
JUDGE RE: DEFENDANT CORCORAN'S MOTION TO DISMISS [ECF NO.
Mitchell D. Dembin United States Magistrate Judge
Report and Recommendation is submitted to United States
District Judge Cynthia Bashant 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 California.
reasons set forth herein, the Court RECOMMENDS Defendant J.
Corcoran's Partial Motion to Dismiss be GRANTED.
Moriano Millare is a state prisoner proceeding pro
se and in forma pauperis. (ECF Nos. 1, 2, 3).
On June 24, 2016, Plaintiff filed a complaint pursuant to 42
U.S.C. § 1983. (ECF No. 1). Plaintiff's Complaint
sets forth various claims against seventeen individuals
alleging that they retaliated against him in violation of the
First Amendment, imposed cruel and unusual conditions of
confinement in violation of the Eighth Amendment, violated
California Government Code § 19572(f), failed to comply
with several California Codes of Regulation and failed to
enforce the Department of Corrections Operations Manual
(“DOM”). (Id. at 31-57).
December 19, 2016, twelve Defendants moved to dismiss counts
ten through fifteen. (ECF No. 16). Defendant Shelland joined
the motion on January 23, 2017. (ECF No. 21). On February 28,
2017 this Court issued a Report and Recommendation regarding
Defendant's Motion to Dismiss. (ECF No. 30). This Court
recommended denying the Motion as to Plaintiff's First
Amendment retaliation claims and granting the Motion as to
Plaintiff's Eighth Amendment and state law claims.
District Judge Bashant adopted the Report and Recommendation
on April 6, 2017. (ECF No. 37).
Corcoran was not a movant in the original Motion to Dismiss.
He was served by mail at a date later than the aforementioned
parties, and waived service on February 6, 2017. (ECF No.
28). Defendant Corcoran now moves to dismiss only the
Plaintiff's claims that the previous Movants were
successful in dismissing, for cruel and unusual punishment
under the Eighth Amendment and all claims arising under state
law. (ECF No. 31-1 at 2).
Corcoran contends that (1) Plaintiff's twelfth count
fails to state a claim under the Eighth Amendment because he
does not allege the loss of a fundamental right, (2) counts
thirteen through fifteen should be dismissed because
Defendant is immune from liability under state law, or in the
alternative (3) counts thirteen through fifteen should be
dismissed because Plaintiff failed to exhaust his
administrative remedies against Defendant Corcoran in the
manner required by the California Government Claims Act. (ECF
No. 31). Defendant also requests the Court take judicial
notice of Plaintiff's government claims filed with the
Victims Compensation and Government Claims Board
(“VCGCB”). (ECF No. 31-2).
has not filed an opposition. Under Civil Local Rules, failure
to object to a Motion may be construed as consent to the
granting of the motion. Civ. L.R. 7.1(f)(3)(c). Nevertheless,
the Court will consider the motion on its merits.
facts are taken from Plaintiff's Complaint, are not to be
construed as findings of fact by the Court, and are limited
to the claims relating to the movant, Defendant Corcoran.
Plaintiff alleges that Defendant Corcoran is a
“employed as a correctional officer on ‘A'
facility at [Richard J. Donovan Correction Facility], and is
responsible for the custody treatment and discipline of all
inmates under his charge.” (ECF No. 1 at 11).
claims arise from a series of appeals that Plaintiff filed
and Rules Violation Reports (“RVR”) filed against
him while incarcerated at Richard J. Donovan Correction
Facility (“RJD”) in San Diego, California.
(See ECF No. 1). From July of 2014 to May of 2015,
Plaintiff alleges that Defendants filed false RVRs against
him, alleging that Plaintiff refused to report to work.
(Id. at 18-20, 68, 76, 77, 100-01, 106-08, 125,
128). The RVRs state that the correctional officer in control
of opening Plaintiff's cell door reported that they
opened Plaintiff's cell door, but that Plaintiff refused
to come out. (Id.). In response to the RVRs,
Plaintiff filed appeals against the Defendants who authored
the reports. (Id. at 18-20, 64-65, 73, 90-97, 96-97,
101-104, 115-17, 186-87). In the appeals, Plaintiff claims
that counter to the information in the RVR, either his cell
door was never opened or that he reported to work on the date
listed in the RVR. (Id.). Plaintiff alleges that
these appeals were improperly rejected, cancelled or denied.
(Id. at 19, 22, 66, 72-76, 82-83, 86-87, 88, 92-93,
95, 98-99, 114-22, 188).
June of 2015 to April of 2016, Plaintiff filed inmate appeals
alleging that Defendants were retaliating against
Plaintiff's previous inmate appeals by improperly
handling them or otherwise impeding his access to file
prisoner grievances. (Id. at 135-36, 144-45, 171-72,
183-84). Plaintiff alleges that these appeals were also
improperly rejected, cancelled or denied. (Id. at
133, 138-41, 143, 148-53, 170, 173-77, 179-82).
to the movant, Plaintiff alleges on March 6, 2015, Defendant
Corcoran issued a RVR stating Plaintiff had failed to report
to work and referenced prior documentation of Plaintiff's
refusal to work. (Id. at 25-26). In the RVR,
Defendant Corcoran detailed that Plaintiff's cell door
was opened but he refused to come out. (Id.).
Defendant Corcoran recommended Plaintiff appear before the
appropriate classification committee for his immediate
removal from his job assignment. (Id.). On March 11,
2015, the RVR was adjudicated by Senior Hearing Officer,
Lieutenant A. Allamby, Plaintiff was found not guilty of the
allegations made by Defendant Corcoran, and the RVR was
Complaint describes his claims in fifteen counts as follows:
counts one through eleven, Plaintiff contends that Defendants
Limon, Charlton, Shelland, Corcoran, Fernandez, Vasquez,
Brown, Asbury, Moore, Olsen, Olivarria, Baenziger, Self,
Sosa, Seibel and Stratton violated his First Amendment right
to freedom of ...