United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
F. BRENNAN, UNITED STATES MAGISTRATE JUDGE.
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.
Almodovar, Hickman, Pogue, and Kumeh move to
dismiss. 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
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.
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.
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.
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
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)).
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.
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