Wheeler v. Alison et al

Filing 37

FINDINGS and RECOMMENDATIONS recommending that 29 Defendants' Motion to Dismiss for Failure to State a Claim be GRANTED as to Plaintiff's Claim for Damages Against Defendants in their Official Capacity re 1 Prisoner Civil Rights Complaint, signed by Magistrate Judge Dennis L. Beck on 11/21/2013. Referred to Judge O'Neill. Objections to F&R due within thirty (30) days. (Jessen, A)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

EASTERN DISTRICT OF CALIFORNIA

8
9
10
11

ERIC WHEELER,

12
13
14
15

Plaintiff,
vs.
ALISON, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

1:12cv00861 LJO DLB PC
FINDINGS AND RECOMMENDATIONS
REGARDING DEFENDANTS’ MOTION
TO DISMISS
(Document 29)

16
17
18
19
20

Plaintiff Eric Wheeler (“Plaintiff”), a state prisoner proceeding pro se and in forma
pauperis, filed this civil rights action filed on May 25, 2012.
On March 11, 2013, the Court issued a screening order finding that the complaint stated
the following cognizable claims (1) excessive force in violation of the Eighth Amendment

21

against Defendants Duck, Murrieta and Lowder; (2) failure to protect in violation of the Eighth
22
23
24
25

Amendment against Defendants Duck, Murrieta, Lowder and Loftis; and (3) deliberate
indifference to a serious medical in violation of the Eighth Amendment against Defendants Ross,
Mui, Neubarth and Ancheta. By order dated April 8, 2013, the Court ordered that the action also

26

proceed against Defendant Alison on the failure to protect claim. The remaining claims and

27

Defendants were dismissed.

28
1

1
2
3
4

On August 22, 2013, Defendants Murrieta, Lowder, Loftis, Duck and Alison1 filed this
Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff filed an
opposition on September 3, 3013. Defendants filed a reply on September 9, 2013, and on
September 16, 2013, Plaintiff filed a “counter-motion” to the reply. The motion is deemed

5

submitted pursuant to Local Rule 230(l).
6
7

I.

A motion to dismiss brought pursuant to Rule 12(b)(6) tests the legal sufficiency of a

8
9
10

LEGAL STANDARD

claim, and dismissal is proper if there is a lack of a cognizable legal theory or the absence of
sufficient facts alleged under a cognizable legal theory. Conservation Force v. Salazar, 646 F.3d

11

1240, 1241-42 (9th Cir. 2011) (quotation marks and citations omitted), cert. denied, 132 S.Ct.

12

1762 (2012). In resolving a 12(b)(6) motion, a court’s review is generally limited to the

13

operative pleading. Daniels-Hall v. National Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010);

14

Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007); Schneider v. California Dept. of Corr., 151

15

F.3d 1194, 1197 n.1 (9th Cir. 1998).

16
17
18
19
20

To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662,
678, 129 S.Ct. 1937 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct.
1955 (2007)) (quotation marks omitted); Conservation Force v. Salazar, 646 F.3d 1240, 1241-42
(9th Cir. 2011); Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The Court must

21

accept the well-pleaded factual allegations as true and draw all reasonable inferences in favor of
22
23
24

the non-moving party. Daniels-Hall v. National Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010);
Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007); Huynh v. Chase Manhattan Bank, 465

25
26
1

27
28

Defendants Ross, Mui, Neubarth and Ancheta have not yet been served. On October 18, 2013, the United States
Marshal returned the summons unexecuted as to Defendant Mui. The Court ordered re-service on Defendant Mui
October 24, 2013. There is no information on the docket as to the status of service for Defendants Ross, Neubarth
or Ancheta.
2

1
2
3

F.3d 992, 996-97 (9th Cir. 2006); Morales v. City of Los Angeles, 214 F.3d 1151, 1153 (9th Cir.
2000).
II.

4

ALLEGATIONS IN PLAINTIFF’S COMPLAINT
A detailed summary of the allegations in Plaintiff’s complaint is unnecessary, as

5

Defendants solely seek to dismiss the claim for damages against Defendants in their official
6
7

capacity. 2
Plaintiff allegations stem from an incident in January 2011, when he was attacked by

8
9

another inmate and subsequently assaulted by Defendants Duck, Murrieta and Lowder. Plaintiff

10

states an excessive force claim against Defendants Duck, Murrieta and Lowder, a failure to

11

protect claim against Defendants Duck, Murrieta, Lowder, Loftis and Alison, and a deliberate

12

indifference to a serious medical need against Defendants Ross, Mui, Neubarth and Ancheta

13

based on subsequent medical care.

14
15
16

Plaintiff sues Defendants in both their official and individual capacity and requests
declaratory and injunctive relief, as well as monetary damages.
III.

17
18

DISCUSSION
Defendants seek to dismiss Plaintiff’s official capacity claim against them on the ground

that the Eleventh Amendment bars suits for money damages against the state.

19

“The Eleventh Amendment bars suits for money damages in federal court against a state,

20
21
22
23

its agencies, and state officials in their official capacities.” Aholelei v. Dept. of Public Safety,
488 F.3d 1144, 1147 (9th Cir. 2007) (citations omitted). However, “[t]he Eleventh Amendment
does not bar suits against a state official for prospective relief,” Wolfson v. Brammer, 616 F.3d

24

1045, 1065-66 (9th Cir. 2010), and it does not bar suits seeking damages against state officials in

25

their personal capacities,” Hafer v. Melo, 502 U.S. 21, 30, 112 S.Ct. 358 (1991); Porter v. Jones,

26

319 F.3d 483, 491 (9th Cir. 2003).

27
2

28

The gains from this motion appear minimal, especially when viewed in relation to the impact such motions have on
the taxed resources of this Court.
3

1
2
3
4

Therefore, insofar as Plaintiff requests monetary damages against Defendants in their
official capacity, his claim should be dismissed.3
IV.

FINDINGS AND RECOMMENDATIONS

5

Based on the above, the Court HEREBY RECOMMENDS that Defendants’ Motion to
6
7
8

Dismiss for failure to state a claim, filed on August 22, 2013, be GRANTED as to Plaintiff’s
claim for damages against Defendants in their official capacity.
These Findings and Recommendations will be submitted to the United States District

9
10

Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within

11

thirty (30) days after being served with these Findings and Recommendations, the parties may

12

file written objections with the Court. The document should be captioned “Objections to

13

Magistrate Judge’s Findings and Recommendations.” A party may file a reply to the objections

14

within fourteen (14) days of service of the objections. The parties are advised that failure to file

15

objections within the specified time may waive the right to appeal the District Court’s order.

16

Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

17
18

IT IS SO ORDERED.

19

Dated:
20

November 21, 2013

/s/ Dennis

L. Beck

UNITED STATES MAGISTRATE JUDGE
DEAC_Signature-END:

21
22

3b142a

23
24
25
26
27
28

3

In their reply, Defendants argue, for the first time, that the Court should also dismiss Plaintiff’s claim for injunctive
relief. While the argument was made in response to statements in Plaintiff’s opposition, it is not properly before the
Court and will not be addressed.
4