McCloud v. Bird-Hunt

          REPORT AND RECOMMENDATION FOR ORDER GRANTING DEFENDANTS' MOTION TO DISMISS [ECF NO. 10]

          Hon. Jill L. Burkhardt, United States Magistrate Judge.

         I. INTRODUCTION

         Before the Court is Defendants' Motion to Dismiss Plaintiff Willie McCloud's Complaint for failure to state a claim. (ECF No. 10.) Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 48 U.S.C. § 1983. (ECF Nos. 1; 4.) The Court submits this Report and Recommendation to United States District Judge William Q. Hayes pursuant to 28 U.S.C. § 636(b)(1) and Civil Local Rule 72.1 of the Local Rules of Practice for the United States District Court for the Southern District of California. After a thorough review of the Complaint, the parties' filings, and all supporting documents, and for the reasons discussed below, the Court RECOMMENDS that the District Court GRANT Defendants' Motion to Dismiss.

         II. BACKGROUND

         A. Factual Background ^[1]

         The Court derives the following facts from the Complaint: Plaintiff is a state prisoner currently incarcerated at Richard J. Donovan Correctional Facility (“RJDCF”).^[2](ECF No. 1 at 1.) On February 7, 2018, Plaintiff overheard another inmate, C. Johnson, telling Correctional Officers T. Bird-Hunt^[3] and A. Ruelas that he was “going to stab and kill” Plaintiff. (Id. at 4.) After hearing Johnson's threats, Plaintiff made “repeated request[s]” to Officers Bird-Hunt and Ruelas to move Johnson to another cell that was not next to Plaintiff's cell or to a new building, or to move Plaintiff. (Id.) Officers Bird-Hunt and Ruelas disregarded Plaintiff's requests and said, “We're not moving anyone and don't worry about Johnson he isn't gonna do shit.” (Id.) Plaintiff “knew his safety was at risk, ” so he continued to ask the officers to move Johnson or himself. (Id.)

         The next day, Plaintiff “was being escorted to his cell” when Johnson approached Plaintiff and threatened him with a “large[, ] sharp[, ] knife-like weapon.” (Id. at 3.) The weapon was in Officer Bird-Hunt's “clear view.” (Id.) Johnson proceeded to attack Plaintiff with the weapon, cutting his ear and “other parts of [his] body.” (Id.) Johnson then stabbed Plaintiff in the shoulder. (Id.) While Johnson was attacking Plaintiff, Officer Bird-Hunt “panicked” and “failed to intervene, ” leaving Plaintiff “to fend for himself.” (Id.) Officer Bird-Hunt did not call for assistance. (Id.) However, another correctional officer intervened and “saved [Plaintiff's] life.”^[4] (Id.)

         Following Johnson's attack, Plaintiff filed an inmate grievance in the form of a CDCR Form 602. (Id. at 5.) Because Plaintiff is mentally ill, he did not write the grievance himself and “obtained assistance from a jailhouse lawyer” to write it for him. (Id.) The jailhouse lawyer, however, did not include in the grievance information regarding the threats Plaintiff overheard Johnson make prior to the attack or Plaintiff's subsequent requests to Officers Bird-Hunt and Ruelas to be separated from Johnson. (Id.) On March 25, 2018, Sergeant F. Lewis interviewed Plaintiff regarding his inmate grievance. (Id.) Plaintiff informed Sergeant Lewis about the information the jailhouse lawyer had failed to include in the grievance, but Lewis told Plaintiff that he was “not there to address events prior to” Johnson's attack. (Id.) Sergeant Lewis “disregarded what Plaintiff told him” and declined to add that Officers Bird-Hunt and Ruelas “had prior knowledge” that Plaintiff's “safety was at risk” in the “appeal response.” (Id. at 5-6.)

         Plaintiff alleges that Officer Bird-Hunt violated his Eighth Amendment rights by “failing to prevent and protect [him] from an attack” by Johnson and by being “deliberately indifferent” to his “safety and security.” (Id. at 2-4.) Plaintiff also alleges that Officer Bird-Hunt failed to protect him from Johnson's attack in retaliation for grievances Plaintiff filed against her and other prison staff-a First Amendment violation. (Id. at 2-3.)

         Plaintiff likewise alleges that Officer Ruelas violated his Eighth Amendment rights by being “deliberately indifferent” to his “safety and security.” (Id. at 2, 4.) Plaintiff alleges that Sergeant Lewis violated his Fifth Amendment rights under the Due Process Clause by “failing to input all of Plaintiff's statement from the interview in the appeal response, ” which “omitt[ed] serious case factors that needed to be exhausted in the administrative appeal process.” (Id. at 2, 5.)

         Plaintiff seeks both injunctive relief and damages from Defendants in their official and individual capacities. (Id. at 2, 7.)

         B. Procedural Background

         On June 27, 2019, Defendants Bird-Hunt, Ruelas, and Lewis filed a Motion to Dismiss Plaintiff's Complaint for failure to state a claim. (ECF No. 10.) Specifically, Defendants move to dismiss Plaintiff's claims for damages against all Defendants in their official capacities and Plaintiff's due process claim against Defendant Lewis. (See id.)

         On August 5, 2019, Plaintiff filed a response in opposition to Defendants' motion. (ECF No. 14.) On September 10, 2019, Defendants filed a reply. (ECF No. 15.)

         III. LEGAL STANDARDS

         A. Motion to Dismiss for Failure to State a Claim

         The Federal Rules of Civil Procedure require a plaintiff's complaint to provide a “short and plain statement of the claim showing that [he] is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The pleading standard that Rule 8 announces does not require detailed factual allegations, and the statement need only “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) (citing Twombly, 550 U.S. at 555).

         A motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the claims in the complaint. See Twombly, 550 U.S. at 555. “To survive a motion to dismiss, a complaint must contain 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). “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). “Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Cooney v. Rossiter, 583 F.3d 967, 971 (9th Cir. 2009) (quoting Iqbal, 556 U.S. at 679). The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 556 U.S. at 678-79.

         In ruling on a Rule 12(b)(6) motion to dismiss, the court does not look at whether the plaintiff will “ultimately prevail but whether the [plaintiff] is entitled to offer evidence to support the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The court may consider allegations contained in the pleadings, exhibits attached to the complaint, and documents and matters properly subject to judicial notice. Outdoor Media Grp., Inc. v. City of Beaumont, 506 F.3d 895, 899 (9th Cir. 2007); Roth v. Garcia Marquez, 942 F.2d 617, 625 n.1 (9th Cir. 1991). The court must assume the truth of the facts presented and construe all inferences from them in the light most favorable to the nonmoving party. Buckey v. County of Los Angeles, 968 F.2d 791, 794 (9th Cir. 1992). However, the court is “not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged.” Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994). In addition, when an allegation in the complaint is refuted by an attached document, the court need not accept the allegation as true. Roth, 942 F.2d at 625 n.1.

         B. Standards Applicable to Pro Se Litigants

         With respect to a plaintiff proceeding pro se, his factual allegations, “however inartfully pleaded, ” must be held “to less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972); see also Erickson v. Pardus, 551 U.S. 89, 94 (2007) (reaffirming that this standard applies to pro se pleadings post-Twombly). Thus, when a plaintiff proceeds pro se in a civil rights case, the court must construe the pleadings liberally and afford the plaintiff any benefit of the doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). However, in giving liberal interpretation to a pro se civil rights complaint, the court may not “supply essential elements of the claim that were not initially pled.” Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). “The plaintiff must ‘allege with at least some degree of ...