United States District Court, S.D. California
REPORT AND RECOMMENDATION FOR ORDER GRANTING
DEFENDANTS' MOTION TO DISMISS [ECF NO. 10]
Jill L. Burkhardt, United States Magistrate Judge.
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.
Factual Background 
Court derives the following facts from the Complaint:
Plaintiff is a state prisoner currently incarcerated at
Richard J. Donovan Correctional Facility
(“RJDCF”).(ECF No. 1 at 1.) On February 7, 2018,
Plaintiff overheard another inmate, C. Johnson, telling
Correctional Officers T. Bird-Hunt 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.
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.” (Id.)
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.)
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.
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.)
seeks both injunctive relief and damages from Defendants in
their official and individual capacities. (Id. at 2,
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.)
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.)
Motion to Dismiss for Failure to State a Claim
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).
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.
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
Standards Applicable to Pro Se Litigants
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 ...