Minjarez v. Director of the CA Dept of Corrections & Rehabilitation, et al.
Filing
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FINDINGS and RECOMMENDATIONS Regarding Dismissal of Certain Claims in 11 Second Amended Complaint signed by Magistrate Judge Dennis L. Beck on 11/01/2011. Referred to Judge O'Neill; Objections to F&R due by 12/5/2011. (Flores, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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RUDY MINJAREZ,
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Plaintiff,
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1:10cv01560 LJO DLB PC
FINDINGS AND RECOMMENDATIONS
REGARDING DISMISSAL OF CERTAIN
CLAIMS IN SECOND AMENDED
COMPLAINT
v.
DIRECTOR OF CDCR, et al.,
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Defendants.
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I.
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Background
Plaintiff Rudy Minjarez (“Plaintiff”), a prisoner in the custody of the California
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Department of Corrections and Rehabilitation (“CDCR”), is proceeding pro se and in forma
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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed his initial
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complaint on August 30, 2010, and filed a First Amended Complaint on November 16, 2010.
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On April 25, 2011, the Court issued a screening order requiring Plaintiff to either file a
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Second Amended Complaint or inform the Court of his willingness to proceed only on the
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cognizable claim. Of the four causes of action, the Court found that Plaintiff’s Eighth
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Amendment excessive force claim against Defendants Cortez, Swetalla, Gaona, Fidler and
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Barajas stated a claim and could go forward.
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Plaintiff opted to file a Second Amended Complaint on June 7, 2011.
II.
Legal Standard
The Court is required to screen complaints brought by prisoners seeking relief against a
governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The
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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are
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legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or
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that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.
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§ 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion thereof, that may have been
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paid, the court shall dismiss the case at any time if the court determines that . . . the action or
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appeal . . . fails to state a claim upon which relief may be granted.” 28 U.S.C. §
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1915(e)(2)(B)(ii).
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A complaint must contain “a short and plain statement of the claim showing that the
pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not
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required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere
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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing
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Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual
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matter, accepted as true, to ‘state a claim that is plausible on its face.’” Id. (quoting Twombly,
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550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id.
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III.
Summary Of Second Amended Complaint
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Plaintiff is incarcerated at California Correctional Institution (“CCI”) in Tehachapi,
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California, where the events giving rise to this action occurred. Plaintiff names Director of
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CDCR John Doe 1, Warden Gonzales, Sergeant Barajas, Sergeant Fidler, Officer Cortez, Officer
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Swetalla, Officer Gaona, and Correctional Captain John Doe 2 as Defendants.
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Plaintiff alleges that on March 6, 2009, when he was housed in Unit 4, Cell 139, Officer
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Sweaney arbitrarily chose to withhold his canteen purchases, as well as the purchases of his cell
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mate and two inmates housed in Cell 137. Plaintiff, his cell mate, and the inmates in Cell 137
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withheld their food trays and covered their door windows in protest. Hours later, Facility
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Captain Hill negotiated an agreement and the inmates received their canteen items. Plaintiff was
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subsequently moved to Unit 2.
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On March 7, 2009, Plaintiff was ordered by the Unit 2 Officer to report to the Unit
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Office. Once there, Defendants Cortez and Swetalla conducted a strip search and then gave him
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paper underwear. Defendants Cortez and Swetalla ordered the inmate porters to exit the office.
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Fifteen minutes later, Plaintiff was escorted to the sergeant’s office and ordered to
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straddle a chair. Defendant Fidler asked Plaintiff why he kept his morning meal tray and Plaintiff
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responded that he had not. Defendant Fidler then asked Plaintiff why he had caused trouble the
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night before. Plaintiff explained that Captain Hill had assured Plaintiff that the incident from
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Unit 4 would not follow him to Unit 2. Plaintiff alleges that Defendant Fidler then raised his
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voice and told Plaintiff that he didn’t care about what Captain Hill said and that he ran the
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program. Plaintiff responded that he was better off in ad-seg (administrative segregation).
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Defendant Fidler ordered Plaintiff to stand with his hands behind his back and cuff up.
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As Plaintiff stood with his hands behind his back, Defendants Cortez, Swetalla, Gaona, Fidler,
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and Barajas began to beat Plaintiff. Plaintiff alleges that he suffered multiple injuries, including
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bruises, scratches, and an injury to his knee caused by Defendant Fidler twisting his foot. He
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believes that the beating was in retaliation for the events of March 6.
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Plaintiff then alleges that Defendant John Doe 2 placed him on “potty watch” for five
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days. Plaintiff was “kept with no blankets, no jacket, cuffed, chained, and under 24 hour guard,
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in an open door room that was exposed to freezing outdoor temperatures.” Second Amended
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Complaint, at 5C.
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Plaintiff alleges that (1) a conspiracy existed between Defendant Fidler and Defendants
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Gaona, Cortez, Swetalla and Barajas to violation Plaintiff’s constitutional rights; (2) John Doe 2
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violated his constitutional rights by placing him on “potty watch” for five days; (3) John Doe 1
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and Defendant Gonzales failed to train and supervise Defendants Gaona, Cortez, Swetalla,
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Barajas, Fidler and John Doe 2; and (4) Defendants Cortez, Swetalla, Gaona, Fidler and Barajas
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beat him in retaliation for the March 6 incident.
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Plaintiff seeks monetary damages, declaratory judgment, and injunctive relief.
IV.
Analysis
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A.
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Plaintiff alleges that Defendants John Doe 1 and Gonzales are liable for their failure to
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Supervisory Liability
train or supervise Defendants Cortez, Swetalla, Gaona, Fidler, Barajas, and John Doe 2.
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Specifically, Plaintiff alleges that Defendants John Doe 1 and Gonzales failed to inform the other
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Defendants that their actions related to the alleged beating and “potty watch” were violations of
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Plaintiff’s constitutional rights.
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Under section 1983, Plaintiff must demonstrate that each named defendant personally
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participated in the deprivation of his rights. Ashcroft v. Iqbal, 129 S.Ct 1937 (2009); Simmons v.
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Navajo County, Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010). Liability may not be imposed on
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supervisory personnel under the theory of respondeat superior, as each defendant is only liable
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for his or her own misconduct. Iqbal, 129 S.Ct. at 1948-49; Ewing, 588 F.3d at 1235.
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Supervisors may only be held liable if they “participated in or directed the violations, or knew of
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the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.
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1989); accord Starr v. Baca, 652 F.3d 1202, 1205-08 (9th Cir. 2011).
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Therefore, to state a claim for relief under section 1983 for supervisory liability, plaintiff
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must allege some facts indicating that the defendant either: personally participated in the alleged
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deprivation of constitutional rights; knew of the violations and failed to act to prevent them; or
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promulgated or “implemented a policy so deficient that the policy ‘itself is a repudiation of
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constitutional rights’ and is ‘the moving force of the constitutional violation.’” Hansen v. Black,
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885 F.2d 642, 646 (9th Cir. 1989) (internal citations omitted); Taylor, 880 F.2d at 1045.
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In his Second Amended Complaint, Plaintiff continues to allege a failure to train and
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supervise. The only difference between the allegations in this complaint and those in his prior
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complaint is Plaintiff’s contention that the failure to train and/or supervise was based on
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Defendants’ failure to tell the other Defendants that their acts were unconstitutional. This does
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not cure the deficiency, however. Plaintiff’s allegations again fail to allege sufficient facts which
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demonstrate that Defendants either personally participated in, knew of the violations and failed to
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act to prevent them, or promulgated a constitutionally deficient policy.
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Plaintiff has been granted one opportunity to amend the allegations but has failed to
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successfully do so. Accordingly, the Court recommends that this claim be dismissed without
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leave to amend.
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B.
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“What is necessary to show sufficient harm for purposes of the Cruel and Unusual
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Punishments Clause [of the Eighth Amendment] depends upon the claim at issue . . . .” Hudson
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v. McMillian, 503 U.S. 1, 8 (1992). “The objective component of an Eighth Amendment claim is
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. . . contextual and responsive to contemporary standards of decency.” Id. (internal quotation
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marks and citations omitted). The malicious and sadistic use of force to cause harm always
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violates contemporary standards of decency, regardless of whether or not significant injury is
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evident. Id. at 9; see also Oliver v. Keller, 289 F.3d 623, 628 (9th Cir. 2002) (Eighth
Eighth Amendment - Excessive Force
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Amendment excessive force standard examines de minimis uses of force, not de minimis
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injuries)). However, not “every malevolent touch by a prison guard gives rise to a federal cause
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of action.” Hudson, 503 U.S. at 9. “The Eighth Amendment’s prohibition of cruel and unusual
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punishments necessarily excludes from constitutional recognition de minimis uses of physical
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force, provided that the use of force is not of a sort ‘repugnant to the conscience of mankind.”
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Id. at 9-10 (internal quotations marks and citations omitted).
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Here, Plaintiff has sufficiently alleged an Eighth Amendment claim against Defendants
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Cortez, Swetalla, Gaona, Fidler, and Barajas. The Court will instruct Plaintiff on service by
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separate order.
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C.
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The Eighth Amendment protects prisoners from inhumane methods of punishment and
Eighth Amendment - Conditions of Confinement
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from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir.
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2006). Extreme deprivations are required to make out a conditions of confinement claim, and
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only those deprivations denying the minimal civilized measure of life’s necessities are
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sufficiently grave to form the basis of an Eighth Amendment violation. Hudson, 503 U.S. at 9.
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In order to state a claim for violation of the Eighth Amendment, Plaintiff must allege facts
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sufficient to support a claim that officials knew of and disregarded a substantial risk of serious
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harm to him. Farmer v. Brennan, 511 U.S. 825, 837 (1994); see Frost v. Agnos, 152 F.3d 1124,
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1128 (9th Cir. 1998).
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Plaintiff alleges that Defendant John Doe 2 placed him on “potty watch” for five days in
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unconstitutional conditions. He alleges that he was kept with “no blankets, no jacket, cuffed,
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chained, and under 24 hour guard, in an open door room that was exposed to freezing outdoor
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temperatures.” Second Amended Complaint, at 5C.
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Plaintiff’s prior complaint failed to allege which Defendant placed him in these
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conditions. He now alleges that it was Defendant John Doe 2. Accordingly, Plaintiff has cured
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this deficiency. The Court will address service by separate order.
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D.
Conspiracy
A conspiracy claim brought under section 1983 requires proof of “‘an agreement or
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meeting of the minds to violate constitutional rights,’” Franklin v. Fox, 312 F.3d 423, 441 (9th
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Cir. 2001) (quoting United Steel Workers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1540-41
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(9th Cir. 1989) (citation omitted)), and an actual deprivation of constitutional rights, Hart v.
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Parks, 450 F.3d 1059, 1071 (9th Cir. 2006) (quoting Woodrum v. Woodward County, Oklahoma,
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866 F.2d 1121, 1126 (9th Cir. 1989)). “‘To be liable, each participant in the conspiracy need not
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know the exact details of the plan, but each participant must at least share the common objective
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of the conspiracy.’” Franklin, 312 F.3d at 441 (quoting United Steel Workers, 865 F.2d at 1541).
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The federal system is one of notice pleading, and the court may not apply a heightened
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pleading standard to plaintiff’s allegations of conspiracy. Empress LLC v. City and County of
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San Francisco, 419 F.3d 1052, 1056 (9th Cir. 2005); Galbraith v. County of Santa Clara, 307
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F.3d 1119, 1126 (2002). However, although accepted as true, the “[f]actual allegations must be
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[sufficient] to raise a right to relief above the speculative level . . . .” Bell Atl. Corp. v. Twombly,
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550 U.S. 544, 555 (2007) (citations omitted). A plaintiff must set forth “the grounds of his
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entitlement to relief[,]” which “requires more than labels and conclusions, and a formulaic
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recitation of the elements of a cause of action . . . .” Id. (internal quotations and citations
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omitted). As such, a bare allegation that Defendants conspired to violate Plaintiff's constitutional
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rights will not suffice to give rise to a conspiracy claim under § 1983.
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In his prior complaint, Plaintiff based his conspiracy allegations on a conversation he had
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with John Doe 2. The Court explained that the conversation was insufficient to demonstrate a
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conspiracy between Defendant John Doe 2 and other Defendants to violate Plaintiff’s
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constitutional rights.
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In his Second Amended Complaint, Plaintiff omits the allegations about the conversation.
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Instead, he now alleges that his isolation in the Unit Office, his strip search and the instruction to
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stand with his hands behind his back are “circumstantial evidence from which a jury could
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conclude that there was a prior agreement by Defendants Gaona, Cortez, Swetalla, Sgt. Barajas,
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and Sgt. Fidler, to beat Plaintiff once he stood up.” Second Amended Complaint, at 5D.
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Plaintiff’s citation to circumstantial evidence is insufficient to raise Plaintiff’s right to
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relief above the speculative level. As Plaintiff has been granted one opportunity to amend but
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has failed to successfully do so, the Court recommends that this claim be dismissed without leave
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to amend.
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RECOMMENDATION
Plaintiff’s Second Amended Complaint appears to state causes of action for (1) use of
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excessive force in violation of the Eighth Amendment against Defendants Cortez, Swetalla,
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Gaona, Fidler, and Barajas; and (2) violation of the Eighth Amendment based on Plaintiff’s
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conditions of confinement against Defendant John Doe 2.
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However, Plaintiff’s Second Amended Complaint fails to state claims for (1) supervisory
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liability against Defendants John Doe 1 and Gonzales; and (2) conspiracy against Defendants
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Cortez, Swetalla, Gaona, Fidler, and Barajas.
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Accordingly, it is HEREBY RECOMMENDED that:
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1.
This action proceed Defendants Cortez, Swetalla, Gaona, Fidler, and Barajas on
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the excessive force claim, and against Defendant John Doe 2 on the conditions of
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confinement claim; and
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2.
Plaintiff’s claim for supervisory liability against Defendants John Doe 1 and
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Gonzales, and his claim for conspiracy against Defendants Cortez, Swetalla,
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Gaona, Fidler, and Barajas be DISMISSED from this action for failure to state a
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claim.
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These Findings and Recommendations are submitted to the Honorable Lawrence J.
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O’Neill pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) days after
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being served with these Findings and Recommendations, Plaintiff may file written objections
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with the Court. Such a document should be captioned “Objections to Magistrate Judge’s
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Findings and
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Recommendations.” Plaintiff is advised that failure to file objections within the specified
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time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153
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(9th Cir. 1991).
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IT IS SO ORDERED.
Dated:
3b142a
November 1, 2011
/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE
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