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Hammler v. J. Alvarez

United States District Court, S.D. California

July 23, 2019

ALLEN HAMMLER, Plaintiff,
v.
J. ALVAREZ, et al., Defendants.

          ORDER: (1) ADOPTING THE REPORT & RECOMMENDATION, (DOC. NO. 53); (2) GRANTING DEFENDANTS' MOTION TO DISMISS, (DOC. NO. 19); (3) ALLOWING PLAINTIFF LEAVE TO AMEND.

          Hon. Anthony J. Battaglia United States District Judge.

         Before the Court is Plaintiff Allen Hammler's First Amended Complaint (“FAC”)[1]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.

         I. BACKGROUND

         For 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.

         On 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 Lieutenant. (Id.)

         Alvarez 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 it.” (Id.)

         II. LEGAL STANDARDS

         A. Review of the Report and Recommendation

         “The 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 review).

         B. Motion to Dismiss

         A 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.

         Pro se 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)).

         III. DISCUSSION

         Plaintiff 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 ...


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