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Hardney v. Warren

United States District Court, E.D. California

December 12, 2019

JOHN HARDNEY, Plaintiff,
v.
R. WARREN, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS

          EDMUND F. BRENNAN, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff is a California Department of Corrections and Rehabilitation (“CDCR”) inmate proceeding without counsel in an action brought under 42 U.S.C. § 1983. He filed this action on January 27, 2016 (ECF No. 1) and, after filing an amended complaint (ECF No. 10), the court found that he had stated: (1) a cognizable Eighth Amendment excessive force claim against defendants Pogue, Hickman, Almodovar, and Brazil; and (2) a cognizable Eighth Amendment deliberate indifference to medical needs claim against defendant Kumeh. ECF No. 16 at 2.

         Defendants Almodovar, Hickman, Pogue, and Kumeh move to dismiss.[1] ECF No. 75. Plaintiff has filed an opposition. ECF No. 79. For the reasons stated hereafter, it is recommended that defendants' motion be granted in part.

         Plaintiff has also filed what the court construes as a motion for injunctive relief. ECF No. 78. As discussed below, that motion should be denied without prejudice.

         Motion to Dismiss

         I. Legal Standards

         A complaint may be dismissed under that rule for “failure to state a claim upon which relief may be granted.” Fed.R.Civ.P. 12(b)(6). To survive a motion to dismiss for failure to state a claim, a plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). The plausibility standard is not akin to a “probability requirement, ” but it requires more than a sheer possibility that a defendant has acted unlawfully. Iqbal, 556 U.S. at 678.

         For purposes of dismissal under Rule 12(b)(6), the court generally considers only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice, and construes all well-pleaded material factual allegations in the light most favorable to the nonmoving party. Chubb Custom Ins. Co. v. Space Sys./Loral, Inc., 710 F.3d 946, 956 (9th Cir. 2013); Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012).

         Dismissal under Rule 12(b)(6) may be based on either: (1) lack of a cognizable legal theory, or (2) insufficient facts under a cognizable legal theory. Chubb Custom Ins. Co., 710 F.3d at 956. Dismissal also is appropriate if the complaint alleges a fact that necessarily defeats the claim. Franklin v. Murphy, 745 F.2d 1221, 1228-1229 (9th Cir. 1984).

         Pro se pleadings are held to a less-stringent standard than those drafted by lawyers. Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). However, the Court need not accept as true unreasonable inferences or conclusory legal allegations cast in the form of factual allegations. See Ileto v. Glock Inc., 349 F.3d 1191, 1200 (9th Cir. 2003) (citing Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981)).

         II. Background

         A. Plaintiff's Allegations

         Plaintiff alleges that, on October 10, 2014, defendant Pogue approached his cell and informed him that he was there to “counsel plaintiff on masturbation.” ECF No. 10 at 7. Plaintiff told Pogue to leave and the latter informed him that a non-party prison official had seen him masturbating in his cell. Id. At 7-8. Plaintiff alleges that he deemed Pogue's comments to be harassment and “told him to get the [s]ergeant.” Id. At 8. He was handcuffed and escorted by “three or four officers” to the unit medical clinic. Id. Defendant Almodovar was allegedly among these officers. Id.

         Plaintiff allegedly arrived at the medical clinic to find more officers waiting for him, including defendant Hickman. Id. Defendant Kumeh - a nurse - is also alleged to have been present. Id. Someone - the complaint does not specify who - told plaintiff that he would be rehoused in administrative segregation for indecent exposure. Id. Plaintiff alleges that, at that time, he did nothing more than verbally express his disbelief that he was being punished. Id. Defendant Pogue allegedly responded to these comments by slamming plaintiff's head ...


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