Anderson v. Hansen et al
Filing
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FINDINGS and RECOMMENDATIONS Recommending that Defendants' Lewis and Hartley's 28 Motion to Dismiss be Denied; Objections Due within Thirty Days signed by Magistrate Judge Michael J. Seng on 11/21/2011. Referred to Judge Lawrence J. O'Neill. Objections to F&R due by 12/27/2011. (Sant Agata, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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IREN ANDERSON,
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Plaintiff,
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CASE NO.
v.
1:09-cv-1924-LJO-MJS (PC)
FINDINGS AND RECOMMENDATION
THAT DEFENDANTS’ LEWIS AND
HARTLEY’S MOTION TO DISMISS BE
DENIED
JAMES D. HARTLEY, et al.,
(ECF No. 28)
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Defendants.
OBJECTIONS DUE WITHIN THIRTY DAYS
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Plaintiff Iren Anderson (“Plaintiff”) is a state prisoner proceeding pro se and in forma
pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
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On March 31, 2011, the Court screened Plaintiff’s First Amended Complaint and
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found that it stated a claim against Defendant Hartley for failure to protect and Defendant
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Hansen for excessive force, but failed to state a claim in all other respects. (ECF No. 18.)
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The Court ordered Plaintiff to either file a second amended complaint or notify the Court
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of his willingness to proceed only on the cognizable claims. (Id.) On April 5, 2011, Plaintiff
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filed a Second Amended Complaint. (ECF No. 19.) On April 21, 2011, the Court screened
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Plaintiff’s Second Amended Complaint and found that he had stated a claim for excessive
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force against Defendant Hansen, for failure to protect against Defendant Hartley, and for
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failure to intervene against Defendant Lewis. (ECF No. 20.) Plaintiff submitted the
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required service documents for these three Defendants and the United States Marshall
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effectuated service. (ECF Nos. 21 & 22.) Defendants Hansen, Hartley, and Lewis filed an
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Answer. (ECF No. 25.)
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In addition to their Answer, Defendants Hartley and Lewis filed a Motion to Dismiss.
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(Mot., ECF No. 28.) Plaintiff has filed an Opposition to Defendants Hartley and Lewis’
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Motion to Dismiss (Opp., ECF No. 31), and Defendants Hartley and Lewis filed a Reply
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(Reply, ECF No. 32). The Motion to Dismiss is now ready for ruling.
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At the outset, the Court notes that the Motion to Dismiss raises challenges to the
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pleadings that necessarily were addressed by the Court in its screening orders. The Court
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does not find anything in the Motion to Dismiss to cause it to reconsider its last screening
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order. Nevertheless, the Court will once again address the points raised by the Motion
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to Dismiss even though they are essentially the same as those already addressed in that
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screening order..
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I.
LEGAL STANDARD
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“The focus of any Rule 12(b)(6) dismissal . . . is the complaint,” Schneider v.
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California Dept. of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998), which must contain “a
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short and plain statement of the claim showing that the pleader is entitled to relief . . . ,”
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Fed. R. Civ. P. 8(a)(2). “To survive a motion to dismiss, a complaint must contain
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sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’”
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Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly,
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550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)); Moss v. U.S. Secret Service, 572
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F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting
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this plausibility standard. Iqbal, 129 S.Ct. at 1949-50; Moss, 572 F.3d at 969.
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Detailed factual allegations are not required, but “[t]hreadbare recitals of the
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elements of a cause of action, supported by mere conclusory statements, do not suffice,”
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Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 555), and courts “are not required
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to indulge unwarranted inferences,” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th
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Cir. 2009) (internal quotation marks and citation omitted).
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II.
ANALYSIS
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A.
Claim Against Defendant Lewis
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Defendant Lewis moves for dismissal pursuant to Federal Rule of Civil Procedure
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12(b)(6). Defendant Lewis argues that Plaintiff’s Second Amended Complaint fails to
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make any factual allegations against him and, therefore, fails to state a claim upon which
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relief can be granted.
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The Ninth Circuit has held that “police officers have a duty to intercede when their
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fellow officers violate the constitutional rights of a suspect or other citizen.” U.S. v. Koon,
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34 F.3d 1416, 1446-47 n.25 (9th Cir. 1994), rev’d on other grounds by 518 U.S. 81 (1996);
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Estate of Brutsche v. City of Federal Way, 2006 WL 3734153, *5-6 (W.D. Wash. Dec.14,
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2006). If a bystander officer fails to fulfill this duty, he can face the same liability as
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colleagues who directly violated the suspect’s rights.” Aragonez v. County of San
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Bernardino, 2008 WL 4948410, *6 (C.D. Cal. Nov. 18, 2008). However, “law enforcement
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officers are only liable for failure to intercede if they had a ‘realistic opportunity’ to do so.”
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Radwan v. County of Orange, 2010 WL 3293354, *24 (C.D.Cal. Aug. 18, 2010); see
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Cunningham v. Gates, 229 F.3d 1271, 1289-90 (9th Cir. 2000). If an officer is not present
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during a constitutional violation, or the violation happens too quickly, there may be no
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realistic opportunity to intercede. See id.; Knapps v. City of Oakland, 647 F.Supp.2d 1129,
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1159-60 (N.D. Cal. 2009).
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In the Motion, Defendant Lewis argues that the claim against him should be
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dismissed because “the complaint is silent as to whether Defendant Lewis was actually
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aware of the risk posed by Defendant Hansen.” (Mot. at 4.) However, as the Court stated
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in its third Screening Order (ECF No. 20), the degree of force attributed to Defendant
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Hansen during the course of the incident was severe enough that Defendant Lewis should
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have known that it violated the Eighth Amendment. Plaintiff also alleged that Defendant
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Lewis was near enough to the incident itself to intercede.
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alleged sufficient facts to state a claim against Defendant Lewis for failure to protect in
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violation of the Eighth Amendment. The Court recommends that Defendant Lewis’ Motion
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Accordingly, Plaintiff has
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to Dismiss be DENIED.
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B.
Claim Against Defendant Hartley for Failure to Protect
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Defendant Hartley moves for dismissal pursuant to Federal Rule of Civil Procedure
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12(b)(6). Defendant Hartley argues that Plaintiff’s Second Amended Complaint fails to
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state a claim for failure to protect against him because there is no liability for a federal civil
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rights violation based on respondeat superior or other theory of vicarious liability.
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Personnel are generally not liable under Section 1983 for the actions of their
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employees under a theory of respondeat superior. Monell v. Dep’t. of Soc. Servs., 436
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U.S. 658, 691 (1978). Therefore, when a named defendant holds a supervisory position,
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the causal link between him and the claimed constitutional violation must be specifically
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alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979). In other words, “[u]nder
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§ 1983 a supervisor is only liable for his own acts. Where the constitutional violations were
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largely committed by subordinates the supervisor is liable only if he participated in or
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directed the violations.” Humphries v. County of Los Angeles, 554 F.3d 1170, 1202 (9th
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Cir. 2009).
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indifference, a plaintiff may state a claim for supervisory liability based upon the
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supervisor’s knowledge of and acquiescence in unconstitutional conduct by others.” Star
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v. Baca, 633 F.3d 1191, 1196 (9th Cir. 2011).
However, “where the applicable constitutional standard is deliberate
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In ruling on a motion to dismiss pursuant to Rule 12(b)(6), a Court may consider
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exhibits attached to the complaint, matters subject to judicial notice, or documents
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necessarily relied on by the complaint whose authenticity no party questions. See Swartz
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v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007); Lee v. City of Los Angeles, 250 F.3d
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668, 688-689 (9th Cir. 2001). Moreover, pro se complaints are held to less stringent
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standards than formal pleadings by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972).
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A court must construe a pro se plaintiff’s “inartful pleading” liberally in determining whether
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a claim has been stated, including pro se motions as well as complaints. Zichko v. Idaho,
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247 F.3d 1015, 1020 (9th Cir. 2001); Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir.
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1987). This is especially true when a plaintiff appears pro se in a civil rights case. Ferdik
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v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992).
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Defendant Hartley argues that Plaintiff’s claim against him is “too general to
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overcome the bar to respondeat superior liability.” (Mot. at 5.) The Court did not find, or
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even suggest that the claim against Defendant Hartley rested on respondeat superior
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liability. As the Court stated in its second Screening Order (ECF No. 18), Plaintiff has
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alleged a causal link between Defendant Hartley and the constitutional violation caused
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by Defendant Hansen. Plaintiff alleged that Defendant Hartley had or should have had
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knowledge of the risk created by Defendant Hansen and was deliberately indifferent to
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that risk. Specifically, Plaintiff alleged that multiple incidents of excessive force by
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Defendant Hansen were brought to the attention of Defendant Hartley. Despite having
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knowledge of several such incidents, Defendant Hartley took no action to prevent further
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harm to prisoners. Instead he left Defendant Hansen in a position where he could, and
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did, continue using excessive force on prisoners and did use such force against Plaintiff.
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Plaintiff attached to his Second Amended Complaint one sworn statement from another
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inmate describing Defendant Hansen’s use of excessive force and alleges there were
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other similar reports and complaints presented to Defendant Hartley before the incident
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involving Defendant Hansen and Plaintiff. (Pl.’s 2nd Am. Compl. p. 24.) Plaintiff has
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alleged sufficient facts to state a claim against Defendant Hartley for failure to protect in
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violation of the Eighth Amendment. The Court recommends that Defendant Hartley’s
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Motion to Dismiss be DENIED.
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III.
CONCLUSION
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For the reasons stated above, the Court recommends the following:
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Defendant Lewis’ Motion to Dismiss be DENIED; and
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2.
Defendant Hartley’s Motion to Dismiss be DENIED.
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These Findings and Recommendations are submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1).
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Within thirty days after being served with these Findings and Recommendations, any party
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may file written objections with the court and serve a copy on all parties. Such a
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document should be captioned “Objections to Magistrate Judge’s Findings and
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Recommendations.” Any reply to the objections shall be served and filed within ten days
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after service of the objections. The parties are advised that failure to file objections within
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the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst,
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951 F.2d 1153 (9th Cir. 1991).
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IT IS SO ORDERED.
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Dated:
ci4d6
November 21, 2011
Michael J. Seng
/s/
UNITED STATES MAGISTRATE JUDGE
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