Estate of Jose Herrera, et al v. California Department of Corrections,et al

Filing 20

FINDINGS and RECOMMENDATIONS recommending that 16 Defendants' Motion to Dismiss be GRANTED and that Warden Christian Pfeiffer and All Claims Against Him be DISMISSED Without Prejudice re 13 First Amended Complaint signed by Magistrate Judge Sheila K. Oberto on 1/11/2017. Referred to Judge Drozd. Objections to F&R due within twenty-one (21) days. (Jessen, A)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

EASTERN DISTRICT OF CALIFORNIA

8
9
10

13

FINDINGS AND RECOMMENDATION
TO GRANT DEFENDANTS’ MOTION
TO DISMISS

Plaintiffs,

11
12

1:16-cv-01053-DAD-SKO (PC)

HERRERA, et al.,

v.

(Doc. 19)

CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATIONS, et al,

14

TWENTY-ONE DAY DEADLINE

Defendants.

15
INTRODUCTION

16

This action is proceeding on Plaintiffs’ allegations surrounding the shooting death of

17
18

inmate Jose E. Herrera by Correctional Officer Bradley Atkinson. Defendants, C.O. Bradley

19

Atkinson and Warden Christian Pfeiffer, filed a motion to dismiss Warden Pfeiffer under Federal

20

Rule of Civil Procedure1 12(b)(6), asserting that Plaintiff’s allegations fail to state a claim against

21

him upon which relief can be granted. (Doc. 16, MTD.) Plaintiff filed a statement of non-

22

opposition on the condition that Warden Pfeiffer be dismissed without prejudice so they can

23

conduct discovery to determine liability, if any, of Warden Pfeiffer or any other persons. (Doc.

24

19, Non-Opp.)2 Despite lapse of more than sufficient time, Defendants did not file a reply. The

25

motion is deemed submitted per Local Rule 230(l). For the reasons discussed below, it is

26
1

27
28

The Federal Rules of Civil Procedure will be referred to as ARule *.@ Any reference to other statutory authorities
shall so indicate.
2
All references to pagination of specific documents pertain to those noted on the upper right corners via the
CM/ECF electronic court docketing system.

1

1

recommended that the motion be GRANTED, and that Warden Pfeiffer and all claims against

2

him be dismissed without prejudice.

3

LEGAL STANDARD

4

Dismissal is proper under Rule 12(b)(6) if there is a lack of a cognizable legal theory, or

5

the absence of sufficient facts alleged under a cognizable legal theory. Conservation Force v.

6

Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011), cert. denied, 132 S.Ct. 1762 (2012). To survive

7

a motion to dismiss, a complaint must contain sufficient factual allegations, accepted as true, to

8

state a claim that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937,

9

1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65

10

(2007)); Conservation Force, 646 F.3d at 1242; Moss v. U.S. Secret Service, 572 F.3d 962, 969

11

(9th Cir. 2009). The Court must accept well-pled factual allegations as true and draw all

12

reasonable inferences in favor of the non-moving party. Daniels-Hall v. National Educ. Ass’n,

13

629 F.3d 992, 998 (9th Cir. 2010); Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007); Huynh

14

v. Chase Manhattan Bank, 465 F.3d 992, 1003-04 (9th Cir. 2006); Morales v. City of Los

15

Angeles, 214 F.3d 1151, 1153 (9th Cir. 2000).

16

Further, "[i]f there are two alternative explanations, one advanced by defendant and the

17

other advanced by plaintiff, both of which are plausible, plaintiff's complaint survives a motion to

18

dismiss under Rule 12(b)(6)." Starr v. Baca, 652 F.3d 1202, 1216-17. "Plaintiff’s complaint may

19

be dismissed only when defendant's plausible alternative explanation is so convincing that

20

plaintiff's explanation is implausible. The standard at this stage of the litigation is not that

21

plaintiff’s explanation must be true or even probable. The factual allegations of the complaint

22

need only 'plausibly suggest an entitlement to relief.'" Id. (emphasis in original). "Rule 8(a) 'does

23

not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise

24

a reasonable expectation that discovery will reveal evidence' to support the allegations." Id.,

25

quoting Twombly, 550 U.S. at 556 (emphasis added in Starr).

26

///

27

///

28

//
2

1

DISCUSSION

2

A. Defendants’ Motion

3

Defendants argue that Plaintiffs do not allege that Warden Pfeiffer personally participated

4

in the shooting death of Mr. Herrera. (Doc. 16, p. 2.) Plaintiffs instead assert that Mr. Herrera’s

5

death was the result of (a) Warden Pfeiffer’s policies or procedures, or the lack thereof; and/or (b)

6

the failure of Warden Pfeiffer to properly supervise or discipline the prison’s employees. (Id.)

7

Defendants assert that the allegations in support of Plaintiffs’ supervisory liability claim against

8

Warden Pfeiffer are insufficient and do not establish a “direct causal link” between any policy or

9

practice of Warden Pfeiffer and Mr. Herrera’s death. (Id.)

10

1. Plaintiff Fails to State a Cognizable Claim Against Warden Pfeiffer

11

Plaintiffs assert two § 1983 survival claims against Warden Pfeiffer based on supervisory

12

liability. Plaintiffs allege than Mr. Herrera’s death was the result of (a) “customs, practices or

13

policies, or the lack thereof” of Warden Pfeiffer; and/or (b) the failure of Warden Pfeiffer to

14

adequately supervise or discipline the employees at KVSP. (Doc. 13, FAC, ¶¶ 30-44.)

15

Defendants assert that the allegations in support of these claims are fairly general, with Plaintiffs

16

concluding that the shooting “was the result of the custom within the institution to deal with

17

minor events and confrontations with excessive and deadly force,” and that “correctional officers

18

using this force knew there were no repercussions and were allowed to abandon training and

19

normal police policies in exchange for violations and unjustified use of force.” (Doc. 16, 3:8-12,

20

citing Doc. 13, at ¶ 17.)

21

Under section 1983, liability may not be imposed on supervisory personnel for the actions

22

of their employees under a theory of respondeat superior. Ashcroft v. Iqbal, 556 U.S. 662, 677

23

(2009). Liability by a supervisor for “knowledge and acquiescence” in subordinates’ wrongful

24

discriminatory acts is likewise not cognizable. Id. "In a § 1983 suit or a Bivens action - where

25

masters do not answer for the torts of their servants - the term 'supervisory liability' is a

26

misnomer." Id. Therefore, when a named defendant holds a supervisory position, the causal link

27

between him and the claimed constitutional violation must be specifically alleged. See Fayle v.

28

Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir.
3

1
2

1978), cert. denied, 442 U.S. 941 (1979).
To state such a claim, a plaintiff must allege facts that show supervisory defendants either

3

personally participated in the alleged deprivation of constitutional rights; knew of the violations

4

and failed to act to prevent them; or promulgated or "implemented a policy so deficient that the

5

policy 'itself is a repudiation of constitutional rights' and is 'the moving force of the constitutional

6

violation.'" Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989) (internal citations omitted);

7

Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). An unconstitutional policy cannot be proved

8

by a single incident Aunless proof of the incident includes proof that it was caused by an existing,

9

unconstitutional policy.@ City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24, 105 S.Ct. 2427

10

(1985). In this instance, a single incident establishes a Apolicy@ only when the decision-maker has

11

Afinal authority@ to establish the policy in question. Collins v. City of San Diego, 841 F.2d 337,

12

341 (9th Cir. 1988), citing Pembauer v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292 (1986).

13

Defendants contend that Plaintiffs only generally allege that Mr. Herrera’s death was the

14

result of Warden Pfeiffer’s customs, practices, and policies, or the lack thereof; and/or the failure

15

of Warden Pfeiffer to properly supervise or discipline the staff at KVSP. (Doc. 16-1, p. 5.)

16

Defendants correctly contend that Plaintiffs do not identify any specific policy of Warden Pfeiffer

17

that directly resulted in Mr. Herrera’s death and that the FAC is devoid of facts establishing that

18

any policy promulgated by Warden Pfeiffer was a “repudiation” of Mr. Herrera’s constitutional

19

rights or “the moving force” behind the alleged violation of Mr. Herrera’s rights. (Id.) Plaintiffs’

20

allegations are conclusory and assert that unspecified policies of Pfeiffer permit correctional

21

officers to use excessive force. Such vague and non-specific allegations, however, are

22

insufficient to establish that any particular policy was the “moving force” behind the alleged

23

unjustified shooting of Mr. Herrera by Officer Atkinson.

24

Detailed factual allegations are not required, but A[t]hreadbare recitals of the elements of a

25

cause of action, supported by mere conclusory statements, do not suffice.@ Ashcroft v. Iqbal, 556

26

U.S. 662, 678 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

27

Plaintiff must set forth Asufficient factual matter, accepted as true, to >state a claim that is

28

plausible on its face.=@ Iqbal, 556 U.S. at 678, quoting Twombly, 550 U.S. at 555. Factual
4

1

allegations are accepted as true, but legal conclusions are not. Iqbal. at 678; see also Moss v. U.S.

2

Secret Service, 572 F.3d 962, 969 (9th Cir. 2009); Twombly, 550 U.S. at 556-557. Courts are not

3

required to indulge unsupported inferences. Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681

4

(9th Cir. 2009) (internal quotation marks and citation omitted). The “sheer possibility that a

5

defendant has acted unlawfully” is not sufficient, and “facts that are ‘merely consistent with’ a

6

defendant’s liability” fall short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678, 129

7

S. Ct. at 1949; Moss, 572 F.3d at 969.
The FAC, as Defendants’ correctly assert, does not allege facts sufficient to state a claim

8
9

that Warden Pfeiffer either personally participated in the alleged deprivation of Mr. Herrera’s

10

constitutional rights, or promulgated or implemented a policy so deficient that the policy itself is

11

a repudiation of Mr. Herrera’s constitutional rights and was the moving force behind his death.

12

Plaintiffs concede as much via their statement of non-opposition. It is, therefore, recommended

13

that Warden Pfeiffer and all claims against him be dismissed without prejudice.3

14

RECOMMENDATION
Based on the foregoing, the Court HEREBY RECOMMENDS that Defendants’ motion

15
16

to dismiss, filed on December 21, 2016 (Doc. 19), be GRANTED and that Warden Christian

17

Pfeiffer and all claims against him be DISMISSED without prejudice.

18

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

19

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

20

twenty-one days after being served with these Findings and Recommendations, the parties may

21

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

22

Magistrate Judge’s Findings and Recommendations.” The parties are advised that failure to file

23

objections within the specified time may result in the waiver of rights on appeal. Wilkerson v.

24

//

25

//

26
3

27
28

Defendants’ request for qualified immunity on Plaintiff’s claims against Warden Pfeiffer need not be addressed at
this time in light of the recommendation that their motion to dismiss for failure to state a claim be granted. Nothing
in this order should be construed to preclude Defendants from raising qualified immunity on any and all claims later
in this action.

5

1

Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th

2

Cir. 1991)).

3
4
5

IT IS SO ORDERED.
Dated:

January 11, 2017

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6

.