United States District Court, S.D. California
ORDER: (1) ADOPTING THE REPORT & RECOMMENDATION,
(DOC. NO. 53); (2) GRANTING DEFENDANTS' MOTION TO
DISMISS, (DOC. NO. 19); (3) ALLOWING PLAINTIFF LEAVE TO
Anthony J. Battaglia United States District Judge.
the Court is Plaintiff Allen Hammler's First Amended
Complaint (“FAC”)under the Civil Rights Act, 42
U.S.C. § 1983. (Doc. No. 1.) In the Report and
Recommendation (“R&R”), the Magistrate Judge
recommended: (1) Plaintiff's Claim One for Excessive
Force be dismissed without leave to amend; (2) Defendants
Alvarez and Deis are entitled to qualified immunity as to
Claim One; (3) Claim Two for retaliation be dismissed against
all defendants with leave to amend; and (4) ruling on
qualified immunity for Claim Two be delayed until Plaintiff
has amended the retaliation claim. (Doc. No. 53 at 2.) For
the reasons discussed herein, the Court
ADOPTS the R&R's holding, (Doc. No.
53), GRANTS the motion to dismiss, (Doc. No.
19), and DISMISSES Plaintiff's complaint
against all Defendants.
purposes of the instant objection, Plaintiff does not dispute
the factual background outlined in the R&R. (Doc. No. 58
at 2.) Because of this absence of dispute, the Court will
provide a narrow background of the facts that are vital to
the Court's review.
November 28, 2016, Plaintiff was escorted back to his cell by
Defendants Alvarez and Deis, when he discovered his cell had
been searched and his personal belongings had been damaged.
(Doc. No. 1 ¶ 2.) Plaintiff demanded to speak to
Lieutenant Piket and stated to Alvarez that he would not give
up his handcuffs until then. (Id. ¶ 5.) Alvarez
and Deis then took hold of the chain and directed Plaintiff
to place his hands outside of the food-port. (Id.)
Plaintiff refused, again demanding to speak to the
then slowly began pulling the chain, bringing Plaintiff's
back to the door. (Id. ¶ 7.) Plaintiff then
began yelling at Defendants, “stop pulling the . . .
chain, I'm not resisting, and won't resist.”
(Id.) As Alvarez and Deis continued to pull the
chain, Alvarez took hold of Plaintiff's handcuffs and
pulled his hands through the food-port. (Id. ¶
8.) Plaintiff's left hand caught on the food-port's
lower corner, causing him pain as Defendants continued to
pull the chain. (Id. ¶ 10.) Alvarez then
reached through the food-port and attempted to unlock
Plaintiff's handcuffs. (Id.) Plaintiff's
left hand moved into the way, and Alvarez “jabbed at it
[twice] with the key[.]” (Id.) Alvarez took
hold of Plaintiff's right hand and unlocked that cuff,
allowing Plaintiff to “unhitch his left hand from the
food-port.” (Id. ¶ 11.) Plaintiff's
left hand was then “forcfully [sic] pulled through and
out of the food-port where Dies [sic] grabbed hold of it and
violently twisted it while Alvarez unlocked the cuff upon
Review of the Report and Recommendation
court shall make a de novo determination of those portions of
the [report and recommendation] to which objection is
made.” 28 U.S.C. § 636(b)(1). The “statute
makes it clear that the district judge must review the
magistrate judge's findings and recommendations de novo
if objection is made, but not otherwise.” United
States v. Reyna- Tapia, 328 F.3d 1114, 1121 (9th Cir.
2003) (en banc) (emphasis in original); see Schmidt v.
Johnstone, 263 F.Supp.2d 1219, 1225-26 & n. 5 (D.
Ariz. 2003) (applying Reyna- Tapia to habeas
Motion to Dismiss
motion to dismiss under Rule 12(b)(6) tests the legal
sufficiency of a plaintiff's complaint. See Navarro
v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “[A]
court may dismiss a complaint as a matter of law for (1) lack
of cognizable legal theory or (2) insufficient facts under a
cognizable legal claim.” SmileCare Dental Grp. v.
Delta Dental Plan of Cal., 88 F.3d 780, 783 (9th Cir.
1996) (internal quotations and citation omitted). However, a
complaint will survive a motion to dismiss if it contains
“enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). In making this
determination, a court reviews the contents of the complaint,
accepting all factual allegations as true and drawing all
reasonable inferences in favor of the nonmoving party.
See Cedars-Sinai Med. Ctr. v. Nat'l League of
Postmasters of U.S., 497 F.3d 972, 975 (9th Cir. 2007).
Notwithstanding this deference, a reviewing court need not
accept legal conclusions as true. See Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). It is also improper for
a court to assume “the [plaintiff] can prove facts that
[he or she] has not alleged.” Assoc. Gen.
Contractors of Cal., Inc. v. Cal. State Council of
Carpenters, 459 U.S. 519, 526 (1983). However,
“[w]hen there are well-pleaded factual allegations, a
court should assume their veracity and then determine whether
they plausibly give rise to an entitlement to relief.”
Iqbal, 556 U.S. at 664.
pleadings are held “to less stringent standards than
formal pleadings drafted by lawyers” because pro se
litigants are more prone to making errors in pleading than
litigants represented by counsel. Hughes v. Rowe,
449 U.S. 5, 9 (1980) (internal quotations omitted). Thus, the
Supreme Court has stated that federal courts should liberally
construe the “‘inartful pleading' of pro se
litigants.” Eldridge v. Block, 832 F.2d 1132,
1137 (9th Cir. 1987) (quoting Boag v. MacDougall,
454 U.S. 364, 365 (1982)). Nonetheless, Federal Rule of Civil
Procedure 8(a) requires that a complaint contain a short
plain statement of “the claim showing that the pleader
is entitled to relief[.]” Even if some claims may not-
on their face-be subject to dismissal under Rule12(b), a
court still has discretion to dismiss those that fail to
comply with the requirement that they be “simple,
concise, and direct.” McHenry v. Renne, 84
F.3d 1172, 1179 (9th Cir. 1996) (quoting Fed.R.Civ.P. 8(e)).
objects to the R&R's recommendation for Claim One,
arguing: (1) the Magistrate Judge failed to consider certain
facts and unreasonably ignored others for his Eighth
Amendment claim, and (2) Defendants Alvarez and Deis ...