United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS RECOMMENDING
DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS BE
GRANTED [ECF No. 25]
Sam Drake is appearing pro se and in forma pauperis in this
civil rights action pursuant to 42 U.S.C. § 1983.
before the Court is Defendants' motion for judgment on
the pleadings, filed May 13, 2019.
action is proceeding on the following claims: (1) retaliatory
food poisoning under the First and Eighth Amendment against
Defendants Navarro and Gonzalez; (2) due process violation
relating to a RVR hearing under the Fourteenth Amendment
against Defendant Gonzalez; (3) conspiracy to set him up for
attack by other inmates against Defendants Allison, Gonzalez,
Moak, McCabe, Navarro, and Sexton; (4) for setting him up for
attack under the Eighth Amendment against Defendants Allison,
Gonzalez, Moak, McCabe, Navarro, and Sexton; and (5) lack of
medical treatment provided in response to his complaints of
food poisoning against Defendant Dr. McCabe.
December 19, 2018, Defendants filed an answer to the second
December 27, 2018, the Court issued the discovery and
previously stated, on May 13, 2019, Defendants Allison and
Moak filed a motion for judgment on the pleadings claiming
the conspiracy claim against them is unexhausted on the face
of the complaint. Plaintiff filed an opposition on May 24,
2019, and Defendants filed a reply on June 10, 2019.
Therefore, Defendants' motion is deemed submitted for
review without oral argument.
Federal Rule of Civil Procedure 12(c), a party may move for
“judgment on the pleadings” after the pleadings
are closed. The only difference between a motion under Rule
12(c) and a motion under Rule 12(d)(6) is the time of filing,
but they are otherwise functionally the same. Dworkin v.
Hustler Magazine, Inc., 867 F.2d 1188, 1192 (9th Cir.
1989). Thus, the Court applies the same standard applicable
to a motion to dismiss under Rule 12(b)(6) to a motion for
judgment on the pleadings under Rule 12(c). “A judgment
on the pleading is properly granted when, taking all the
allegations in the pleadings as true, a party is entitled to
judgment as a matter of law.” Lyon v. Chase Bank
USA, N.A., 656 F.3d 877, 883 (9th Cir. 2011) (quoting
Dunlap v. Credit Prot. Ass'n, L.P., 419 F.3d
1011, 1012 n.1 (9th Cir. 2005) (per curiam)).
Allegations of Complaint
1994, Plaintiff was remanded to the custody of CDCR. In June
2000, Plaintiff was a witness in a United States District
Court and testified against CDCR and Corcoran State Prison
corruption among prison staff.
Navarro, Gonzalez, Allison, Moak, Sexton and McCabe agreed on
a course of treatment to injure and oppress Plaintiff.
April 6, 2015, Defendants Navarro and Gonzalez conspired to
murder and inflict serious bodily injury on Plaintiff.
Plaintiff was randomly moved from the security housing unit
at Corcoran State Prison 4A facility to 4A2L where Defendants
Navarro and Gonzalez were posted.
April 6, 2015 through May 2015, Plaintiff wrote requests
complaining about the lack of in-cell air circulation,
bedding, linen, and sink sanitation. Plaintiff did not
receive a response to his requests.
April 23, 2015, under the auspice of enforcing CDCR security
check, Gonzalez stated in front of general population inmates
that Plaintiff was a “SNY” “piece of
shit” “rat” who has “been
‘snitching' on us to the sergeant.”
5, 2015, Navarro called Plaintiff a “snitch” in
front of general population inmates and stated: “Drake,
in cell #48, keeps snitching on us [guards] to the sergeant
and captain…writing complaints, ” and “if
you guys (e.g. black inmates) don't handle it, we are
going to handle it!” In addition, Gonzalez called
Plaintiff a ...