Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Drake v. Kernan

United States District Court, E.D. California

June 21, 2019

SAM DRAKE, Plaintiff,
v.
SCOTT KERNAN, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS BE GRANTED [ECF No. 25]

         Plaintiff Sam Drake is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.

         Currently before the Court is Defendants' motion for judgment on the pleadings, filed May 13, 2019.

         I.

         RELEVANT BACKGROUND

         This 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.

         On December 19, 2018, Defendants filed an answer to the second amended complaint.

         On December 27, 2018, the Court issued the discovery and scheduling order.

         As 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.

         II.

         DISCUSSION

         A. Legal Standard

         Under 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)).

         B. Allegations of Complaint

         In 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.

         Defendants Navarro, Gonzalez, Allison, Moak, Sexton and McCabe agreed on a course of treatment to injure and oppress Plaintiff.

         On 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.

         On 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.

         On 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.”

         On May 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.