Avalos v. Carpenter et al

Filing 25

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Jennifer L. Thurston on 6/23/2016 recommending that 12 MOTION to DISMISS Defendants Smith and Tyler be granted. Referred to Judge Lawrence J. O'Neill; Objections to F&R due by 7/18/2016. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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11 ANGEL AVALOS,
Plaintiff,

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v.

14 CARPENTER, et al.,
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Defendants.

Case No. 1:15-cv-00369-AWI-JLT (PC)
FINDINGS AND RECOMMENDATION
TO GRANT DEFENDANTS' MOTION TO
DISMISS DEFENDANTS SMITH AND
TYLER AND ALL CLAIMS AGAINST
THEM
(Doc. 12)
TWENTY-ONE DAY DEADLINE

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18 I.

INTRODUCTION

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This action is proceeding on Plaintiff’s claims that Defendants Officer Carpenter, Captain

20 S. Smith, and Sergeant N. Tyler were deliberately indifferent to a known serious risk of harm to
21 Plaintiff in violation of the Eighth Amendment. (See Doc. 9.)
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On November 3, 2015, Capt. Smith and Sgt. Tyler filed a motion to dismiss under Federal

23 Rule of Civil Procedure 12(b)(6), asserting that Plaintiff’s allegations fail to state a claim against
24 them upon which relief can be granted. (Doc. 12, MTD.) For the reasons discussed herein, the
25 Court recommends the motion be GRANTED.
26 II. LEGAL STANDARD
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A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a claim. Dismissal is

28 proper if there is a lack of a cognizable legal theory, or the absence of sufficient facts alleged

1 under a cognizable legal theory. Conservation Force v. Salazar, 646 F.3d 1240, 1241-42 (9th Cir.
2 2011), cert. denied, 132 S.Ct. 1762 (2012). In resolving a 12(b)(6) motion, a court’s review is
3 generally limited to the operative pleading. Daniels-Hall v. National Educ. Ass’n, 629 F.3d 992,
4 998 (9th Cir. 2010); Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007); Huynh v. Chase
5 Manhattan Bank, 465 F.3d 992, 1003-04 (9th Cir. 2006); Schneider v. California Dept. of Corr.,
6 151 F.3d 1194, 1197 n.1 (9th Cir. 1998).
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To survive a motion to dismiss, a complaint must contain sufficient factual allegations,

8 accepted as true, to state a claim that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678,
9 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)); Conservation Force,
10 646 F.3d at 1242; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The Court must
11 accept well-pled factual allegations as true and draw all reasonable inferences in favor of the non12 moving party. Daniels-Hall, 629 F.3d at 998; Sanders, 504 F.3d at 910; Huynh, 465 F.3d at 99613 97; Morales v. City of Los Angeles, 214 F.3d 1151, 1153 (9th Cir. 2000). Pleadings of prisoners
14 proceeding pro se are liberally construed and any doubt is resolved in the inmate’s favor. Wilhelm
15 v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012); Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir.
16 2012); Silva v. Di Vittorio, 658 F.3d 1090, 1101 (9th Cir. 2011); Hebbe v. Pliler, 627 F.3d 338,
17 342 (9th Cir. 2010).
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Further, "[i]f there are two alternative explanations, one advanced by defendant and the

19 other advanced by plaintiff, both of which are plausible, plaintiff's complaint survives a motion to
20 dismiss under Rule 12(b)(6)." Starr v. Baca, 652 F.3d 1202, 1216-17. "Plaintiff’s complaint may
21 be dismissed only when defendant's plausible alternative explanation is so convincing that
22 plaintiff's explanation is implausible. The standard at this stage of the litigation is not that
23 plaintiff’s explanation must be true or even probable. The factual allegations of the complaint
24 need only 'plausibly suggest an entitlement to relief.'" Id. (emphasis in original). "Rule 8(a) 'does
25 not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise
26 a reasonable expectation that discovery will reveal evidence' to support the allegations." Id.,
27 quoting Twombly, 550 U.S. at 556 (emphasis added in Starr).
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1 III. DISCUSSION
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A. Defendants’ Motion

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Defendants argue that Plaintiff fails to state a cognizable claim of supervisory liability

4 under section 1983 against them as his allegations fail to show either they personally/directly
5 participated in a constitutional violation, (Doc. 12, MTD, 2:1-3, 3:17-6:28), or an affirmative
6 causal link between their conduct and violation of his constitutional rights, (id., at 7:1-20).
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B. Plaintiff's Allegations

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Plaintiff alleges that on January 30, 2014, C/O Carpenter was working as D-5 control

9 officer and opened Plaintiff’s cell door “for medical.” (Doc. 1, p. 3.) Prior to that day there was a
10 stabbing which caused implementation of a lockdown memorandum/matrix requiring all inmate
11 movement to be escorted and in restraints. (Id.) Capt. Smith and Sgt. Tyler knew of the lockdown
12 requirements and the reasons behind it, but failed to enforce it. (Id.) This resulted in C/O
13 Carpenter, who also had full knowledge of the lockdown and the reason behind it, to disregard it
14 by opening various inmates’ cell doors that day, allowing them unrestrained and unescorted
15 movement, which resulted in Plaintiff being attacked. (Id.) The exhibits attached to the Complaint
16 show that this altercation involved not only Plaintiff and another inmate, but four inmates total (id., pp.
17 4, 18, 21-23, 29, 30, 32-40, 43, 47) and that various of the incident reports regarding the altercation
18 specifically noted that the inmates involved were seen walking around the bottom tier area
19 unrestrained (id., at pp. 32, 40, 43).
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C. Analysis

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Plaintiff is proceeding against Defendants for violation of his rights under the Eighth

22 Amendment for deliberate indifference to a known serious risk of harm.
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Under the Eighth Amendment, prison officials have a duty "to take reasonable measures to

24 guarantee the safety of inmates, which has been interpreted to include a duty to protect prisoners."
25 Labatad v. Corrections Corp. of America, 714 F.3d 1155, 1160 (citing Farmer v. Brennan, 511
26 U.S. 825, 832-33, 114 S.Ct. 1970 (1994); Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir.
27 2005)). To establish a violation of this duty, the prisoner must "show that the officials acted with
28 deliberate indifference to threat of serious harm or injury to an inmate." Labatad, at 1160 (citing
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1 Gibson v. County of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002). This involves both objective
2 and subjective components.
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First, objectively, the alleged deprivation must be "sufficiently serious" and where a failure

4 to prevent harm is alleged, "the inmate must show that he is incarcerated under conditions posing a
5 substantial risk of serious harm." Farmer, at 834, quoting Rhodes v. Chapman, 452 U.S. 337, 349,
6 (1981). Second, subjectively, the prison official must "know of and disregard an excessive risk to
7 inmate health or safety." Farmer, at 837; Anderson v. County of Kern, 45 F.3d 1310, 1313 (9th
8 Cir. 1995). A prison official must "be aware of facts from which the inference could be drawn
9 that a substantial risk of serious harm exists, and . . . must also draw the inference." Farmer, at
10 837. Liability may follow only if a prison official "knows that inmates face a substantial risk of
11 serious harm and disregards that risk by failing to take reasonable measures to abate it." Id. at
12 847.
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Defendants do not challenge the cognizability of Plaintiff’s claim against C/O Carpenter

14 for his personal actions which amounted to deliberate indifference to a serious risk of harm to
15 Plaintiff in violation of the Eighth Amendment. Rather, they assert that Plaintiff’s allegations
16 against Capt. Smith and Sgt. Tyler do not sufficiently demonstrate their personal involvement and
17 the requisite causation.
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Supervisory personnel may not be held liable under section 1983 for the actions of

19 subordinate employees based on respondeat superior, or vicarious liability. Crowley v. Bannister,
20 734 F.3d 967, 977 (9th Cir. 2013); accord Lemire v. California Dep’t of Corr. and Rehab., 726
21 F.3d 1062, 1074-75 (9th Cir. 2013); Lacey v. Maricopa County, 693 F.3d 896, 915-16 (9th Cir.
22 2012) (en banc). “A supervisor may be liable only if (1) he or she is personally involved in the
23 constitutional deprivation, or (2) there is a sufficient causal connection between the supervisor’s
24 wrongful conduct and the constitutional violation.” Crowley, 734 F.3d at 977 (citing Snow, 681
25 F.3d at 989) (internal quotation marks omitted); accord Lemire, 726 F.3d at 1074-75; Lacey, 693
26 F.3d at 915-16. Under the later theory, the requisite causal connection can be established by
27 setting in motion a series of acts by others, Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011), or
28 by “knowingly refus[ing] to terminate a series of acts by others, which [the supervisor] knew or
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1 reasonably should have known would cause others to inflict a constitutional injury,” Dubner v.
2 City & Cnty. of San Francisco, 266 F.3d 959, 968 (9th Cir. 2001). “A showing that a supervisor
3 acted, or failed to act, in a manner that was deliberately indifferent to an inmate's Eighth
4 Amendment rights is sufficient to demonstrate the involvement -- and the liability -- of that
5 supervisor.” Starr, 652 F.3d at 1206-07.
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Plaintiff’s allegations that Defendants Capt. Smith and Sgt. Tyler knew that a prior

7 stabbing caused D yard facility to be on lockdown and that the memorandum/matrix specifically
8 required inmates to be restrained and escorted at all times, yet failed to enforce the
9 memorandum/matrix which resulted in Plaintiff being involved in an altercation were leniently
10 construed upon screening to state a cognizable claim. However, in his opposition to the current
11 motion, Plaintiff focuses on his allegations against C/O Carpenter and statements made by another
12 officer in the course of the RVR Hearing to the effect that Plaintiff did not engage in the fight, but
13 rather appeared to hold on to his attacker in an attempt to avoid being punched. (Doc. 23.)
14 Plaintiff fails to present basis for inferences to be drawn and reasonable doubts to be resolved in
15 his favor as he does not address any of Defendants’ arguments. Further, Plaintiff did not make
16 any effort to present factual basis upon which to infer that Defendants Capt. Smith and Sgt. Tyler
17 “knowingly refused to terminate a series of acts by others, which [they] knew or reasonably should
18 have known would cause others to inflict a constitutional injury.” Dubner, 266 F.3d at 968. Thus,
19 Plaintiff fails to provide any basis upon which to find that his claims against Smith and Tyler are
20 based on their personal actions/inactions as opposed to vicarious liability solely on the acts of their
21 subordinate, Defendant C/O Carpenter. Because of this, and particularly in light of his multiple
22 previous attempts at amendment, granting further leave to amend would be futile. Akhtar v. Mesa,
23 698 F.3d 1202, 1212-13 (9th Cir. 2012).
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Accordingly, Defendants’ motion to dismiss Capt. Smith and Sgt. Tyler and all claims

25 against them should be granted since Plaintiff fails to advance a plausible alternative explanation
26 to Defendants’ assertion that his allegations do not establish their personal involvement or the
27 requisite causal link for a cognizable claim. Starr, 652 F.3d at 1216-17.
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1 IV. RECOMMENDATION
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Based on the foregoing, the Court RECOMMENDS that Defendants’ motion, filed on

3 November 3, 2015 (Doc. 12), to dismiss Defendants Capt. S. Smith and Sgt. N. Tyler and all
4 claims against them, should be GRANTED and Defendants Capt. S. Smith and Sgt. N. Tyler and
5 all claims against them should be DISMISSED with prejudice.
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These Findings and Recommendations will be submitted to the United States District

7 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within
8 twenty-one days after being served with these Findings and Recommendations, the parties may
9 file written objections with the Court. The document should be captioned “Objections to
10 Magistrate Judge’s Findings and Recommendations.” The parties are advised that failure to file
11 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v.
12 Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th
13 Cir. 1991)).
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IT IS SO ORDERED.
Dated:

June 23, 2016

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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