United States District Court, S.D. California
REPORT AND RECOMMENDATION FOR AN ORDER GRANTING IN
PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS
PLAINTIFF'S FIRST AMENDED COMPLAINT AND ORDER GRANTING IN
PART DEFENDANTS' REQUEST FOR JUDICIAL NOTICE [ECF NO.
BARBARA L. MAJOR UNITED STATES MAGISTRATE JUDGE.
Report and Recommendation is submitted to United States
District Judge Cynthia Bashant pursuant to 28 U.S.C. §
636(b) and Civil Local Rules 72.1(c) and 72.3(f) of the
United States District Court for the Southern District of
California. For the following reasons, the Court
RECOMMENDS that Defendants' motion to
dismiss Plaintiff's First Amended Complaint be
GRANTED IN PART AND DENIED IN PART.
September 28, 2018, Plaintiff Clifford Allan Venson, a state
prisoner proceeding pro seand in forma
pauperis, filed a complaint under the Civil Rights Act,
42 U.S.C. § 1983, against Defendants Daniel Paramo,
Sergeant Q. Jackson, and Correctional Officers R. Hernandez,
A. S. Diaz, Durant, and Juarez. ECF No. 1
("Compl."). Plaintiff alleged claims under the
Eighth Amendment for unnecessary and excessive force.
January 4, 2019, Defendants Paramo, Jackson, Hernandez, and
filed a motion to dismiss Defendant Paramo from
Plaintiff's complaint for failure to state a claim
against Defendant Paramo. ECF No. 18. Plaintiff filed a
timely opposition on January 22, 2019. ECF No. 21. Plaintiff
filed a second opposition on January 28, 2019 [see
ECF No. 25] and a third opposition on February 5, 2019
[see ECF No. 27]. Defendants replied on February 25,
2019. ECF No. 29. On February 28, 2019, the Court issued a
Report and Recommendation for Order Granting Defendants'
Motion to Dismiss Defendant Paramo from Plaintiff's
Complaint. ECF No. 30. On April 8, 2019, Judge Bashant issued
an Order Approving and Adopting Report and Recommendation and
Granting Defendants' Motion to Dismiss with Leave to
Amend. ECF No. 33.
March 27, 2019, Plaintiff submitted a First Amended Complaint
("FAC") which was accepted by the Court on
discrepancy on April 8, 2019. ECF Nos. 34-35. On May 3, 2019,
Defendants R. Hernandez, A. Diaz, Q. Jackson, and D. Paramo
filed a Motion to Dismiss Plaintiff's First Amended
Complaint. ECF No. 40-1 ("MTD"). Plaintiff
filed a timely opposition to the motion on May 13, 2019
[see ECF No. 42 ("Oppo.")] and a
declaration in support of his opposition on June 7, 2019. ECF
No. 43 ("P- Decl."). Defendants replied on June 24,
2019 [see ECF No. 45 C'Reply")]- On June 16, 2019,
Plaintiff submitted a Memorandum Of Points and Authorities in
Support of Plaintiff's Opposition to Defendants'
Motion to Dismiss which was accepted by the Court on
discrepancy on June 25, 2019. ECF Nos. 46-47
Q'P. Memo"). On July 8, 2019, Defendant
Bracamonte filed a Notice of Joinder to Motion to Dismiss
Plaintiff's First Amended Complaint. ECF No. 49.
this case comes before the Court on a motion to dismiss, the
Court must accept as true all material allegations in the
complaint, and must construe the complaint and all reasonable
inferences drawn therefrom in the light most favorable to
Plaintiff. See Thompson v. Davis, 295 F.3d 890, 895
(9th Cir. 2002).
to the Complaint, Defendants "utilized unnecessary &
excessive force on plaintiff." FACat4. Specifically,
[o]n 5/7/18 at 1406 defendant c/o R. Hernandez instructed
plaintiff to exit his assigned cell, c/o R. Hernandez placed
handcuffs on plaintiff & escorted plaintiff (5) five
cells down the tier. Defendant c/o R. Hernandez
'yanked' &'pulled' plaintiff down to the
ground by the handcuffs & said 'stop resisting.'
Defendant c/o A.S. Diaz began punching & kicking
plaintiff along with Defendant c/o J. Duran. Defendant c/o K.
Juarez placed leg restraints on plaintiff. Defendant c/o R.
Hernandez sat on plaintiff punched & smashed
plaintiff['s] face into concrete. While defendants A.S.
Diaz, c/o J. Duran & c/o K. Juarez continued to kick,
punch & yell at plaintiff, Defendant c/o R. Hernandez,
took a pepper spray nozzle & sprayed plaintiff in face.
[T]he Defendants A.S. Diaz, J. Duran & K. Juarez carried
plaintiff downstairs to sallyport & began to punch
plaintiff in the ribs. The four same defendants carried
plaintiff to gym side door & were joined by defendant
Sgt. Q. Jackson & took turns punching plaintiff in head
& face. Defendant Sgt. Q. Jackson told plaintiff 'I
told you I was gonna get you!'
Id. Plaintiff alleges that his videotaped interview
was not conducted for seventeen days and that Defendants
"conspired in retaliatory beating to falsify write
up." Id. at 4-5. The write up or Rules
Violation Report ("RVR") Plaintiff received was
classified by Defendant Bracamonte as a battery on Defendant
R. Hernandez despite evidence showing that Defendant
Hernandez was not "hit" by Plaintiff. Id.
at 5. The May 7, 2018 beating was retaliation against
Plaintiff for filing a third level appeal. Id. at 5.
next alleges that he received an RVR that was
"classified" by Defendant Bracamonte and written by
Sergeant J. Canedo on behalf of Correctional Officer Natasha
Taylor. Id. at 5. Plaintiff claims that his right to
due process was violated by Senior Hearing Officer, Christina
Frost, who denied Plaintiff's request to call Sergeant J.
Canedo and Officer Natasha Taylor as witnesses at his June
30, 2018 hearing on the RVR. Id. On July 30, 2018,
Defendant Paramo ordered a rehearing. Id. Plaintiff
alleges that he was again denied due process at his October
3, 2018 rehearing. Id. On December 10, 2018, Warden
Covello ordered a rehearing. Id. The rehearing was
held on February 28, 2019 and Plaintiff was found guilty of
battery. Id. Plaintiff argues that his right to due
process was violated because he was not allowed to call the
"reporting employee" as a witness and because the
RVR was issued to him after forty-five days. Id.
Plaintiff seeks mental and emotional damages. Id. at
to Federal Rule of Civil Procedure ("Fed. R. Civ.
P.") 8(a), a complaint must contain "a short and
plain statement of the claim showing that the pleader is
entitled to relief." Fed.R.Civ.P. 8(a)(2).
''[T]he pleading standard Rule 8 announces does not
require 'detailed factual allegations,' but it
demands more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
motion to dismiss under Rule 12(b)(6) tests the legal
sufficiency of the plaintiff's claims. See
Fed.R.Civ.P. 12(b)(6). The issue is not whether the plaintiff
ultimately will prevail, but whether he has properly stated a
claim upon which relief could be granted. Jackson v.
Carey, 353 F.3d 750, 755 (9th Cir. 2003). In order to
survive a motion to dismiss, a plaintiff must set forth
"sufficient factual matter, accepted as true, to
'state a claim to relief that is plausible on its
face.'" Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 570). If the facts alleged in
the complaint are "merely consistent with" the
defendant's liability, the plaintiff has not satisfied
the plausibility standard. Id. (quoting
Twombly, 550 U.S. at 557). Rather, "[a] claim
has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Id. (citing Twombly, 550
U.S. at 556).
plaintiff appears pro se, the court must be careful
to construe the pleadings liberally and to afford the
plaintiff any benefit of the doubt. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007); Thompson v.
Davis, 295 F.3d 890, 895 (9th Cir. 2002). This rule of
liberal construction is "particularly important" in
civil rights cases. Hendon v. Ramsey, 528 F.Supp.2d
1058, 1063 (S.D. Cal. 2007) (citing Ferdik v.
Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)); see
also Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010)
(stating that because "Iqbal incorporated the
Twombly pleading standard and Twombly did
not alter the Court's treatment of pro se
filings; accordingly we continue to construe pro se
filings liberally . . . ." This is particularly
important where the petitioner is a pro se prisoner
litigant in a civil rights matter). When giving liberal
construction to a pro se civil rights complaint,
however, the court is not permitted to "supply essential
elements of the claim that were not initially pled."
Easter v. CDC, 694 F.Supp.2d 1177, 1183 (S.D. Cal.
2010) (quoting Ivey v. Bd. of Regents of the Univ. of
Alaska, 673 F.2d 266, 268 (9th Cir. 1982)). "Vague
and conclusory allegations of official participation in civil
rights violations are not sufficient to withstand a motion to
dismiss." Id. (quoting Ivey, 673 F.2d
court should allow a pro se plaintiff leave to amend
his or her complaint, "unless the pleading could not
possibly be cured by the allegation of other facts."
Ramirez v. Galaza, 334 F.3d 850, 861 (9th Cir. 2003)
(internal quotation marks and citations omitted). Moreover,
"before dismissing a pro se complaint the district court
must provide the litigant with notice of the deficiencies in
his complaint in order to ensure that the litigant uses the
opportunity to amend ...