Venson v. Jackson

          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. 40]

          HON. BARBARA L. MAJOR UNITED STATES MAGISTRATE JUDGE.

         This 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.

         PROCEDURAL BACKGROUND

         On 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. Id.

         On January 4, 2019, Defendants Paramo, Jackson, Hernandez, and Diaz^[1] 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.

         On 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.^[2] 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.

         COMPLAINT ALLEGATIONS

         Because 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).

         According 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.

         Plaintiff 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 7.

         LEGAL STANDARD

         Pursuant 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, the-defendant-unlawfully-harmed--me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

         A 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).

         When a 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 at 268).

         The 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 ...