(PC) Dubrin et al v. Bonilla

Filing 28

FINDINGS and RECOMMENDATIONS recommending that Defendant Cate be DISMISSED re #24 Amended Complaint signed by Magistrate Judge Jennifer L. Thurston on 7/12/2012. Referred to Judge Ishii. Objections to F&R due within fourteen (14) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DUBRIN, et al.,
Plaintiffs,
vs.
BONILLA, et al.,
Defendants.

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Case No.: 1:11-cv-01484 AWI JLT (PC)
FINDINGS AND RECOMMENDATIONS TO
DISMISS DEFENDANT CATE
(Docs. 19, 23, and 24).

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Plaintiffs are state prisoners who are represented by counsel. Plaintiffs initiated this civil rights

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action against Defendants Cate, Stainer, and Bonilla pursuant to 42 U.S.C. § 1983 on September 2,

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2011. (Doc. 2). On June 25, 2012, this Court issued an order granting Defendants’ motion to dismiss

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Plaintiffs’ Second Amended Complaint (“SAC”), in part and denying in part. (Doc. 23). Specifically,

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the Court’s June 25, 2012 order granted the motion to dismiss as to Defendant Cate and denied the

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motion as to Defendants Stainer and Bounville. Plaintiffs were provided an opportunity to amend the

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complaint as to Defendant Cate. (Doc. 23).

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On July 10, 2012 and again on July 11, 2012, Plaintiffs filed a Notice of Non-filing of the

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Third Amended Complaint. (Docs. 24 and 26). Plaintiffs notice stated that they did not possess

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additional facts upon which to support an amended complaint against Defendant Cate and, therefore,

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requested the Second Amended Complaint be deemed the operative complaint (with the exception of

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Defendant Cate).

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For the reasons set forth below, it is recommended that Defendant Cate be

dismissed.1

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I.

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Plaintiffs are state prisoners confined in the Security Housing Unit (“SHU”) at the California

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Correctional Institution (“CCI”) in Tehachapi. (Doc. 19 at 2.) Plaintiffs allege that they are being

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deprived of the minimum amount of out of cell exercise. (Id. at ¶ 2.) Plaintiffs indicate that in the

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four months preceding the filing of the FAC, they have received a total of 12 hours of exercise time.

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(Id. at ¶ 6.) Plaintiffs indicate that their remaining time was spent confined in a 6 x 8 foot cell. (See

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id. at ¶ 6.) Plaintiffs aver that the lack of out of cell exercise has had an adverse impact on their

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BACKGROUND

physical health and mental well-being. (Id. at ¶ 17.)

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Plaintiffs’ SAC names Correctional Sergeant Bounville, CCI Warden Michael Stainer, and

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Matthew Cate, Secretary of the California Department of Corrections and Rehabilitation (“CDCR”) in

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their individual capacities. (Id. at 4-5). As to Defendant Cate, Plaintiffs’ SAC alleges Cate has

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received thousands of inmate appeals from SHU inmates at CCI regarding the lack of exercise but has

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failed to investigate or verify such claims. (Doc. 19 at ¶23). Plaintiffs conclude that Cate’s failure to

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act demonstrates that Cate has established a policy of non-compliance with exercise provisions and

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that his actions amount to a failure to train Defendant Stainer. (Id.)
II.

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LEGAL STANDARDS
A. Federal Rules Of Civil Procedure Rule 12(B)(6)

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A motion to dismiss under Fed. R. Civ. P. 12(b)(6) tests the sufficiency of a complaint. See

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Fed. R. Civ. P. 12(b)(6); see also Ileto v. Glock, Inc., 349 F.3d 1191, 1199-1200 (9th Cir. 2003). A

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complaint may be dismissed as a matter of law for two reasons: (1) lack of a cognizable legal theory,

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or (2) insufficient facts under a cognizable theory. See Navarro v. Block, 250 F.3d 729, 732 (9th Cir.

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2001).

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In reviewing the motion, the Court will assume the truth of all factual allegations and will

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construe them in the light most favorable to the nonmoving party. See Gompper v. VISX, Inc., 298

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Because the recommendation only relates to Defendant Cates, these Findings and Recommendations will only discuss the
SAC and the Motion to Dismiss, as they relate to Defendant Cate.

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F.3d 893, 895 (9th Cir. 2002). However, the court is not bound to accept as true a legal conclusion

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couched as a factual allegation. “When there are well-pleaded factual allegations, a court should

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assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.”

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Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009). However, the conclusions contained in the pleading

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“are not entitled to the assumption of truth.” (Id.)

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B. 42 U.S.C. § 1983

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To plead a § 1983 violation, a plaintiff must allege facts from which it may be inferred (1) he

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was deprived of a federal right, and (2) a person who committed the alleged violation acted under

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color of state law. West v. Atkins, 487 U.S. 42, 28 (1988); Williams v. Gorton, 529 F.2d 668, 670

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(9th Cir. 1976). In addition, a plaintiff must allege he suffered a specific injury, and show causal

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relationship between the defendant’s conduct and the injury suffered by the plaintiff. See Rizzo v.

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Goode, 423 U.S. 362, 371-72, 377 (1976); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a

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person deprives another of a federal right “if he does an affirmative act, participates in another’s

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affirmative acts, or omits to perform an act which he is legally required to do so that it causes the

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deprivation of which complaint is made”).

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unsupported by facts are insufficient to state a civil rights claim under § 1983. Sherman v. Yakahi,

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549 F.2d 1287, 1290 (9th Cir. 1977).

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III.

As with other complaints, conclusory allegations

DISCUSSION
A.

Eighth Amendment

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The Eighth Amendment’s prohibition against cruel and unusual punishment protects prisoners

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

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2006) (citing Farmer v. Brennan, 511 U.S. 825, 832 (1994)). To establish a violation of this duty, a

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prisoner must satisfy both an objective and subjective component. See Wilson v. Seiter, 501 U.S. 294,

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298 (1991). Defendants’ motion is not directed to the objective component. The sole issue before this

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Court is whether Plaintiffs have pled facts against Defendants to sufficiently satisfy the subjective

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component of an Eighth Amendment violation for Cruel and Unusual Punishment.

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In order to meet the subjective component, a prisoner must demonstrate that prison officials

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acted with the state of mind of “deliberate indifference.” Wilson, 501 U.S. at 303; Johnson v. Lewis,
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217 F.3d 726, 733 (9th Cir. Ariz. 2000). A prison official acts with deliberate indifference if he knows

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of and disregards an excessive risk to the prisoner’s health and safety. Farmer, 511 U.S. at 837. In

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other words, the prison official “must both be aware of facts from which the inference could be drawn

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that a substantial risk of serious harm exists [to the inmate], and [the prison official] must also draw

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the inference.” Id. An individual may be liable for deprivation of constitutional rights, if he does an

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affirmative act, participates in another's affirmative acts, or omits to perform an act which he is legally

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required to do that causes the deprivation at issue. Tandel v. County of Sacramento, 2012 U.S. Dist.

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LEXIS 23959, *20 (E.D. Cal. Feb. 22, 2012) (citing Preschooler II v. Clark County Sch. Bd. of Trs.,

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479 F.3d 1175, 1183 (9th Cir. 2007)).

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Defendant Cate

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Although a prison official who had time to observe what was happening can “violate a

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prisoner's Eighth Amendment rights by failing to intervene in the violation imposed by someone else,”

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this analysis does not seem to extend to an official who merely reviews an administrative grievance.

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Jacobs v. Woodford, 2011 U.S. Dist. LEXIS 44742 (E.D. Cal. Apr. 25, 2011) (citing Robins v.

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Meecham, 60 F.3d 1436, 1442 (9th Cir. 1995); Lanier v. City of Fresno, 2010 U.S. Dist. LEXIS

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130459 * at 17 (E.D. Cal. Dec. 8, 2010). "[A prison] grievance procedure is a procedural right only,

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it does not confer any substantive right upon the inmates." A prisoner's right to petition the

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government is a right of expression and "does not guarantee a response to the petition or the right to

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compel government officials to act on" the petition. Apple v. Glenn, 183 F.3d 477, 479 (6th Cir.

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1999). "Liability under § 1983 must be based on active unconstitutional behavior and cannot be based

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upon a 'mere failure to act.'" Stocker v. Warden, 2009 U.S. Dist. LEXIS 31207, 29-30 (E.D. Cal. Apr.

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13, 2009) (quoting Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). Where a defendant's only

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involvement in the allegedly unconstitutional conduct is the denial of administrative grievances, the

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failure to intervene on a prisoner's behalf to remedy alleged unconstitutional behavior does not amount

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to active unconstitutional behavior for purposes of § 1983. Perkins v. Cal. Dep't of Corr. & Rehab.,

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2010 U.S. Dist. LEXIS 104413 (E.D. Cal. Sept. 30, 2010) (citing Shehee, 199 F.3d at 300); see also

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Stocker, 2009 U.S. Dist. LEXIS 31207, 29-30.

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However, a plaintiff may state a claim against a supervisor for deliberate indifference based

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upon the supervisor's knowledge of and acquiescence in unconstitutional conduct by his or her

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subordinates. Starr v. Baca (9th Cir. 2011) 652 F.3d 1202, 1206-1207 cert. denied, (U.S. 2012) 132

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S.Ct. 2101 (“A showing that a supervisor acted, or failed to act, in a manner that was deliberately

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indifferent to an inmate's Eighth Amendment rights is sufficient to demonstrate the involvement—and

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the liability—of that supervisor. Thus, when a supervisor is found liable based on deliberate

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indifference, the supervisor is being held liable for his or her own culpable action or inaction, not held

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vicariously liable for the culpable action or inaction of his or her subordinates.) In reaching its

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decision, the Starr court outlined the numerous factual allegations from multiple sources in the

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complaint which demonstrated what the defendant knew or should have known and what he did or

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didn’t do. (Id. at 1209).

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Here, the SAC alleges only that Defendant Cate failed to investigate the inmate grievances

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regarding lack of exercise time and based thereon, Plaintiffs contend Cate “established a policy”

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denying exercise time to Plaintiffs. In light of the authorities set forth above, the Court finds that these

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allegations are not sufficient to state a claim against Defendant Cate.

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Plaintiffs acknowledge they cannot currently plead additional facts as to Defendant Cate that would

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allow Plaintiffs to proceed against him at this time, it is recommended that Defendant Cate be

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dismissed.

Additionally, given that

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IV. FINDINGS AND RECOMMENDATIONS

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Accordingly, IT IS HEREBY RECOMMENDED that Defendant Cate be dismissed.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local

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Rules of Practice for the United States District Court, Eastern District of California. Within 14 days

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after being served with these findings and recommendations, any party may file written objections

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with the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.”

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The parties are advised that failure to file objections within the specified time may waive the

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right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.

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Dated:

July 12, 2012

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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