Bradley v. Villa et al

Filing 44

FINDINGS and RECOMMENDATIONS Recommending That: (1) Defendants' Unenumerated Rule 12(b) Motion be Denied on Procedural Grounds, Without Prejudice, and (2) Defendants' Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim be Granted in Part, With Leave to Amend, signed by Magistrate Judge Gary S. Austin on 4/17/2014, referred to Judge O'Neill. Objections to F&R Due Within Thirty Days. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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1:10-cv-01618-LJO-GSA-PC

WILLIAM BRADLEY,

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Plaintiff,

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vs.

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FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT:

J. VILLA, et al.,

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(1) DEFENDANTS‟ UNENUMERATED
RULE 12(b) MOTION BE DENIED ON
PROCEDURAL GROUNDS,
WITHOUT PREJUDICE,

Defendants.

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AND

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(2) DEFENDANTS‟ RULE 12(b)(6)
MOTION TO DISMISS FOR FAILURE
TO STATE A CLAIM BE GRANTED
IN PART, WITH LEAVE TO AMEND

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(Doc. 29.)

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OBJECTIONS, IF ANY, DUE WITHIN
THIRTY DAYS

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I.

BACKGROUND

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William Bradley (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights

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action pursuant to 42 U.S.C. ' 1983. Plaintiff filed the Complaint commencing this action on

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September 8, 2010. (Doc. 1.) This case now proceeds on the Third Amended Complaint filed

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by Plaintiff on September 14, 2012, against defendant Correctional Officer (C/O) J. Villa for

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use of excessive force in violation of the Eighth Amendment, and against defendants Sergeant

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(Sgt.) J. Hightower, Lieutenant (Lt.) S. Henderson, and Captain (Cpt.) Wood (collectively, four

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“Defendants”) for failure to intercede and protect Plaintiff, in violation of the Eighth

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Amendment. (Doc. 19.)
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On October 11, 2013, Defendants filed an unenumerated Rule 12(b) motion to dismiss

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this action for failure to exhaust administrative remedies, and a Rule 12(b)(6) motion to dismiss

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for failure to state a claim. (Doc. 29.) On November 25, 2013, Plaintiff filed an opposition to

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the motions. (Doc. 34.) On December 18, 2013, Defendants filed a reply.

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Defendants‟ motions to dismiss are now before the court.

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II.

(Doc. 38.)

PLAINTIFF’S ALLEGATIONS

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Plaintiff is a state prisoner in the custody of the California Department of Corrections

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and Rehabilitation (CDCR), presently incarcerated at the California Substance Abuse

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Treatment Facility and State Prison in Corcoran, California.

The events at issue in the

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operative Third Amended Complaint allegedly occurred at Kern Valley State Prison in Delano,

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California (KVSP), when Plaintiff was incarcerated there. Plaintiff names as defendants C/O

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J. Villa, Sgt. J. Hightower, Lt. S. Henderson, and Cpt. Wood. Defendants are all correctional

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officials employed by the CDCR at KVSP.

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The events giving rise to this lawsuit occurred on February 18, 2010. As Plaintiff was

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walking toward the plaza gate to an appointment at KVSP, C/O Villa stopped Plaintiff and told

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him to tuck his shirt into his pants. Plaintiff told Villa that he could not comply with the order

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because of a spinal brace. Plaintiff lifted up his shirt to show C/O Villa the brace. Villa

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ordered Plaintiff to “[g]o back to your building or cuff it up.” (3rd Amd Cmp, Doc. 19 at 5:16-

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17.) Plaintiff asked to speak to the Sergeant. Villa approached Plaintiff and ordered him to

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cuff up. Plaintiff told Villa that he had a waist chain chrono.

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As Plaintiff attempted to retrieve the chrono from a manila folder, Villa “grabbed

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Plaintiff‟s right arm „aggressively‟ [and] Plaintiff then stated „I have medical chrono to

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substantiate my waist chain chrono.‟” (3rd Amd Cmp at 5:23-26.) Villa stepped forward, and

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at the same time Villa grabbed Plaintiff‟s right arm and yanked down. “As a result of these

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actions, Plaintiff fell down, and split his lip, & left side of jaw area (against the concrete), deep

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abrasions on right hand, severe spinal pain lower region, and deep cuts on knee area, right leg.”

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(3rd Amd Cmp at 6:3-7.)

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Plaintiff alleges that while on the ground and offering no resistance, he was hit “three

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times about the head” by C/O Villa, while Sgt. Hightower, Lt. Henderson, and Cpt. Wood

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watched. (3rd Amd Cmp at 6:9-10.) Plaintiff yelled for help and for medical care “for being

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stabbed in the back area with cuffs, causing extreme spinal spasms and pains and discomforts.”

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(3rd Amd Cmp at 6:14-17.) Plaintiff alleges that he suffered “strained ligaments, and soft

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tissue damage, active bleeding, on lip & jaw area, abrasion & scratches, and spinal and back

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pain.” (3rd Amd Cmp at 6:18-22.)

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III.

UNENUMERATED RULE 12(b) MOTION TO DISMISS

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Defendants have brought an unenumerated Rule 12(b) motion to dismiss the claims

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against them on the ground that Plaintiff failed to exhaust the available administrative

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remedies. 42 U.S.C. § 1997e(a); Fed. R. Civ. P. 12(b).

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On April 3, 2014, the United States Court of Appeals for the Ninth Circuit issued a

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decision overruling Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003) with respect to the

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proper procedural device for raising the issue of administrative exhaustion. Albino v. Baca,

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No. 10-55702, 2014 WL 1317141, at *1 (9th Cir. Apr. 3, 2014) (en banc). Following the

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decision in Albino, Defendants may raise the issue of exhaustion in either (1) a motion to

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dismiss pursuant to Rule 12(b)(6), in the rare event the failure to exhaust is clear on the face of

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the complaint, or (2) a motion for summary judgment. Albino, 2014 WL 1317141, at *4

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(quotation marks omitted). An unenumerated Rule 12(b) motion is no longer the proper

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procedural device for raising the issue of exhaustion. Id.
In light of the decision in Albino, Defendants‟ unenumerated Rule 12(b) motion should

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be denied on procedural grounds, without prejudice.

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IV.

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RULE 12(b)(6) MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM
A motion to dismiss pursuant to Rule 12(b)(6) operates to test the sufficiency of the

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complaint.

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conclusory allegations. Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 1950 (2009).

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AThreadbare recitals of the elements of a cause of action, supported by mere conclusory

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statements, do not suffice.@ Id. at 1949 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

The first step in testing the sufficiency of the complaint is to identify any

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555 (2007)). A[A] plaintiff=s obligation to provide the grounds of his entitlement to relief

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requires more than labels and conclusions, and a formulaic recitation of the elements of a cause

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of action will not do.@ Twombly, 550 U.S. at 555 (citations and quotation marks omitted).

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Although the court must accept well-pleaded factual allegations of the complaint as true for

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purposes of a motion to dismiss, the court is Anot bound to accept as true a legal conclusion

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couched as a factual allegation.@ Id.

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After assuming the veracity of all well-pleaded factual allegations, the second step is for

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the court to determine whether the complaint pleads Aa claim to relief that is plausible on its

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face.@ Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556) (rejecting the traditional

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12(b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). A claim is facially

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plausible when the plaintiff Apleads factual content that allows the court to draw the reasonable

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inference that the defendant is liable for the misconduct alleged.@ Id. at 678 (citing Twombly,

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550 U.S. at 556). The standard for plausibility is not akin to a Aprobability requirement,@ but it

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requires Amore than a sheer possibility that a defendant has acted unlawfully.@ Id. (citing

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Twombly, 550 U.S. at 556).
Defendants’ Motion

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A.

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Defendants argue that defendant C/O Villa did not use excessive force against Plaintiff,

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and at most, any force was de minimus. Defendants also argue that defendants Hightower,

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Henderson, and Wood were not deliberately indifferent to Plaintiff‟s health and safety.

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Excessive Force – Eighth Amendment Claim

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AWhat 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). AThe objective component of an Eighth Amendment claim

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is . . . 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.

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Amendment excessive force standard examines de minimis uses of force, not de minimis

Id. at 9; see also Oliver v. Keller, 289 F.3d 623, 628 (9th Cir. 2002) (Eighth

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injuries)). However, not Aevery malevolent touch by a prison guard gives rise to a federal cause

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of action.@ Id. at 9. AThe Eighth Amendment=s prohibition of cruel and unusual punishments

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necessarily excludes from constitutional recognition de minimis uses of physical force,

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provided that the use of force is not of a sort >repugnant to the conscience of mankind.@ Id. at

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9-10 (internal quotations marks and citations omitted).

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A[W]henever prison officials stand accused of using excessive physical force in

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violation of the Cruel and Unusual Punishments Clause, the core judicial inquiry is . . . whether

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force was applied in a good-faith effort to maintain or restore discipline, or maliciously and

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sadistically to cause harm.@ Id. at 7. AIn determining whether the use of force was wanton and

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unnecessary, it may also be proper to evaluate the need for application of force, the relationship

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between that need and the amount of force used, the threat reasonably perceived by the

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responsible officials, and any efforts made to temper the severity of a forceful response.@ Id.

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(internal quotation marks and citations omitted). AThe absence of serious injury is . . . relevant

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to the Eighth Amendment inquiry, but does not end it.@ Id.

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Defendants’ Position

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With respect to Plaintiff‟s excessive force claim, Defendants argue that defendant C/O

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Villa‟s conduct was a mere de minimus use of force. Defendants cite cases in which courts

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found that (1) a single blow to the back of the head while a prisoner was handcuffed during a

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transport, requiring only treatment by a non-prescription medication, did not constitute

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excessive force;1 (2) striking plaintiff in the back of the neck and kicking his ankle is a mere de

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minimus use of force;2 (3) hitting an inmate in the back because he is not moving fast enough

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does not amount to a violation of the Eighth Amendment;3 and (4) allegations of bumping,

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grabbing, elbowing, and pushing plaintiff do not approach an Eighth Amendment claim.4

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Olson v. Coleman, 804 Supp. 148, 150 (D. Kansas 1992).

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Jackson v. D. D. Hurley, 1993 U.S. Dist. LEXIS 16954 (N.D. Cal. Nov. 24, 1993).

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Turner v. Contra Costa Cnty., 1997 U.S. Dist. LEXIS 21512 (N.D. Cal. Nov. 6, 1997).

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Boddie v. Schnieder, 105 F.3d 857, 861 (2d Cir. 1997.)
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Defendants argue that Plaintiff mischaracterized defendant Villa‟s grabbing of his arm as an

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“attack,” and that defendant Villa merely grabbed Plaintiff‟s arm as he was reaching into his

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manila folder, in order to prevent any possible perceived assault on correctional staff. In

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addition, Defendants argue that Plaintiff‟s alleged injuries from the fall were not readily

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apparent.

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Plaintiff’s Position

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In his opposition, Plaintiff argues that defendant C/O Villa used excessive force in

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violation of the Eighth Amendment because during the incident at issue, Plaintiff was not a

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threat to defendant, defendant knew Plaintiff was extremely disabled, and defendant “yanked

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him down with force,” causing Plaintiff to fall to the pavement, splitting his lip, causing

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Plaintiff to suffer “deep abrasions. . , . . severe lower spinal pains, and deep cuts on [his] knee

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area and right leg, while on [the] ground with [cuffs forced] in [his] back area.” (Opp‟n, Doc.

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34 at 7-8.) Plaintiff also alleges that he was hit three or four times about the head by defendant

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Villa. (Id. at 8.) Plaintiff alleges that he was forced to remain on the pavement on his stomach,

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cuffed in back, for at least 45 minutes, causing him to suffer excruciating pain. (Id.)

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Discussion

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The court looks to Plaintiff‟s allegations in the Third Amended Complaint, taking as

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true any of Plaintiff‟s well-pleaded factual allegations. Plaintiff alleges that when he was

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unable to comply with Villa‟s order to tuck in his shirt, Villa aggressively “yanked down” on

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his arm, causing him to fall to the pavement, splitting his lip and causing “deep abrasions” on

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his right hand, “severe spinal pain,” and “deep cuts” on his knee. (3rd Amd Cmp at 6:3-7.)

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Even if defendant Villa grabbed Plaintiff to prevent an assault on correctional staff, according

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to Plaintiff‟s allegations there appears no justification for defendant Villa hitting Plaintiff three

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times in the head after he was prone on the pavement. Once Plaintiff was on the ground, cuffed

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behind his back and offering no resistance, there would appear to be no further need to apply

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force to restore discipline. Defendants‟ argument that Plaintiff‟s alleged injuries from the fall

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were not readily apparent is not persuasive. The Eighth Amendment excessive force standard

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examines de minimis uses of force, not de minimis injuries. Hudson, 503 U.S. at 8. Therefore,
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the court finds that Plaintiff states a cognizable claim in the Third Amended Complaint against

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defendant C/O Villa for use of excessive force.

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Failure to Protect – Eighth Amendment Claim

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The Eighth Amendment protects prisoners from inhumane methods of punishment and

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from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th

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Cir. 2006). Although prison conditions may be restrictive and harsh, prison officials must

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provide prisoners with food, clothing, shelter, sanitation, medical care, and personal safety.

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Farmer v. Brennan, 511 U.S. 825, 832-33, 114 S.Ct. 1970 (1994) (internal citations and

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quotations omitted). Prison officials have a duty to take reasonable steps to protect inmates

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from physical abuse. Farmer, 511 U.S. at 833; Hearns v. Terhune, 413 F.3d 1036, 1040 (9th

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Cir. 2005).

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To establish a violation of this duty, the prisoner must establish that prison officials

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were Adeliberately indifferent to a serious threat to the inmates=s safety.@ Farmer at 834. The

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question under the Eighth Amendment is whether prison officials, acting with deliberate

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indifference, exposed a prisoner to a sufficiently substantial >risk of serious damage to his

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future health . . . .=@ Id. at 843 (citing Helling v. McKinney, 509 U.S. 25, 35 (1993)). The

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Supreme Court has explained that Adeliberate indifference entails something more than mere

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negligence . . . [but] something less than acts or omissions for the very purpose of causing harm

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or with the knowledge that harm will result.@ Farmer at 835. The Court defined this Adeliberate

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indifference@ standard as equal to Arecklessness,@ in which Aa person disregards a risk of harm

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of which he is aware.@ Id. at 836-37. An officer can be held liable for failing to intercede only

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if he had a Arealistic opportunity@ to intercede. Cunningham v. Gates, 229 F.3d 1271, 1289

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(9th Cir. 2000); Robins v. Meecham, 60 F.3d 1436, 1442 (9th Cir. 1995).

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The deliberate indifference standard involves both an objective and a subjective prong.

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First, the alleged deprivation must be, in objective terms, Asufficiently serious.@ Id. at 834.

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Second, subjectively, the prison official must Aknow of and disregard an excessive risk to

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inmate health or safety.@ Id. at 837; Anderson v. County of Kern, 45 F.3d 1310, 1313 (9th Cir.

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1995). To prove knowledge of the risk, however, the prisoner may rely on circumstantial
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evidence; in fact, the very obviousness of the risk may be sufficient to establish knowledge.

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Farmer, 511 U.S. at 842; Wallis v. Baldwin, 70 F.3d 1074, 1077 (9th Cir. 1995).

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Defendants’ Position

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Defendants argue that Plaintiff‟s allegation that defendants Hightower, Wood, and

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Henderson “ignored Plaintiff‟s cry and anguish which he expressed loudly and agonizingly

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clear” is not enough to show that the defendants were deliberately indifferent. Defendants

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argue that Plaintiff‟s statement is vague and amounts to nothing more than baseless speculation.

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Defendants also argue that Plaintiff‟s complaint is devoid of any allegations that the officers

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were aware of and disregarded any excessive risk to Plaintiff‟s safety. Defendants argue that

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Plaintiff‟s allegation that the defendants were present in the vicinity of the alleged incident of

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de minimus force, alone, does not demonstrate that they knew of an excessive risk to Plaintiff‟s

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safety.

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Plaintiff’s Position

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In opposition, Plaintiff argues that defendants Hightower, Wood, and Henderson

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(Supervisory Officers) were present when he was beaten by C/O Villa and when he was on the

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ground and on a stretcher, shouting that he was in excruciating pain and has a spinal disc

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disorder.

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Discussion

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The court again looks to Plaintiff‟s allegations in the Third Amended Complaint, taking

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as true any of Plaintiff‟s well-pleaded factual allegations. Plaintiff alleges that defendants

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Hightower, Wood, and Henderson were present when C/O Villa hit Plaintiff three times about

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the head when Plaintiff was cuffed and prone on the pavement, and they stood by and watched

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while Plaintiff suffered and yelled for help.

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Plaintiff‟s allegation that the Supervisory Officers watched while defendant Villa hit

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Plaintiff three times on the head is sufficient to show that they were aware of a risk of harm to

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Plaintiff. However, Plaintiff has not alleged facts showing that the risk of harm was excessive.

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Plaintiff does not describe the forcefulness of the blows to his head or the injuries caused by the

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blows. Moreover, Plaintiff‟s allegation that the officers failed to step in and stop the attack, or
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assist him when he lay in pain on the ground, is not sufficient to show they deliberately

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disregarded a risk to his health or safety. Plaintiff also fails to allege sufficient facts showing

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that the officers had a realistic opportunity to intercede during the assault. Plaintiff has not

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described whether the three blows were in quick succession, or would have allowed the

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Supervisory Officers an opportunity to intercede before the assault was over.

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Based on the foregoing, the court finds that Plaintiff fails to allege sufficient facts to

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state a claim against defendants Hightower, Wood, and Henderson for failing to protect him in

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violation of the Eighth Amendment.

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Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend >shall be

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freely given when justice so requires.=@ Therefore, the court should provide Plaintiff with a

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choice to either proceed only with the excessive force claim against defendant Villa, or file a

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Fourth Amended Complaint curing the deficiencies identified above. Lopez v. Smith, 203 F.3d

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1122, 1126-30 (9th Cir. 2000).

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IV.

CONCLUSION AND RECOMMENDATION

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With respect to Defendants‟ unenumerated Rule 12(b) motion to dismiss for failure to

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exhaust, the Court finds that the motion should be denied, without prejudice, on procedural

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grounds, in light of the Ninth Circuit‟s decision in Albino.

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With respect to Defendants‟ Rule 12(b)(6) motion to dismiss, the court finds that

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Plaintiff states a cognizable claim against defendant Villa for use of excessive force in violation

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of the Eighth Amendment, but fails to state a claim against defendants Hightower, Wood, and

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Henderson for failing to protect him in violation of the Eighth Amendment. Therefore, the

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motion should be granted in part, and the claims against defendants Hightower, Wood, and

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Henderson should be dismissed, with leave to amend.

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Based on the foregoing, IT IS HEREBY RECOMMENDED that:

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Defendants‟ unenumerated Rule 12(b) motion to dismiss for failure to exhaust

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remedies be DENIED for procedural reasons, without prejudice to renewal of

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the motion;

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2.

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Defendants‟ Rule 12(b)(6) motion to dismiss for failure to state a claim be
GRANTED IN PART;

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Defendants‟ motion to dismiss the claims against defendant Villa be DENIED;

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Defendants‟ motion to dismiss the claims against defendants Hightower, Wood,

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and Henderson be GRANTED, with leave to amend; and
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Plaintiff be granted a choice to either (1) proceed only with the excessive force

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claim against defendant Villa, or (2) file a Fourth Amended Complaint curing

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the deficiencies found in the Third Amended Complaint.

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These Findings and Recommendations will be submitted to the United States District

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Court Judge assigned to this action pursuant to the provisions of 28 U.S.C. ' 636 (b)(1).

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Within thirty (30) days after being served with a copy of these Findings and

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Recommendations, any party may file written objections with the Court and serve a copy on all

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parties. Such a document should be captioned AObjections to Magistrate Judge=s Findings and

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Recommendations.@ Any reply to the objections shall be served and filed within ten (10) days

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after service of the objections. The parties are advised that failure to file objections within the

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specified time may waive the right to appeal the order of the District Court. Martinez v. Ylst,

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951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:

April 17, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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