Aguirre v. County of Sacramento et al

Filing 54

AMENDED FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 3/13/14 RECOMMENDING that Defendants motion to dismiss 28 be granted in part and denied in part; Defendants motion be granted as to 1) plaintiffs official capac ity claims against the individually named defendants; 2) plaintiffs inadequate medical care claims against defendants Place and Kinder; 3) plaintiffs conspiracy claims against defendants Place and Kinder; 4) plaintiffs negligence claim against def endant Sacramento County; Defendants' motion be denied as to 1) plaintiff's failure to protect claims against all defendants; 2) plaintiff's negligence claims against the individually named defendants; 3) the claim that plaintiff failed to administratively exhaust his retaliation claim. Referred to Judge Troy L. Nunley; Objections to F&R due within 14 days.(Dillon, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CARLOS R. AGUIRRE, 12 13 14 No. 2:12-cv-2165 TLN KJN P Plaintiff, v. AMENDED FINDINGS AND RECOMMENDATIONS COUNTY OF SACRAMENTO, et al., 15 Defendants. 16 17 18 Introduction Plaintiff is a former prisoner, proceeding without counsel, with a civil rights action 19 pursuant to 42 U.S.C. § 1983. Pending before the court is defendants‘ motion to dismiss for 20 failure to state a claim pursuant to 42 U.S.C. § 1983, and for failure to exhaust administrative 21 remedies. 22 On July 31, 2013, the undersigned recommended that defendants‘ motion be granted in 23 part and denied in part. After reviewing the objections filed by the parties, the undersigned now 24 issues these amended findings and recommendations, again recommending that defendants‘ 25 motion be granted in part and denied in part. 26 Legal Standard for Motion to Dismiss for Failure to State a Claim 27 28 Rule 12(b)(6) of the Federal Rules of Civil Procedures provides for motions to dismiss for ―failure to state a claim upon which relief can be granted.‖ Fed. R. Civ. P. 12(b)(6). In 1 1 considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court 2 must accept as true the allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89 3 (2007), and construe the pleading in the light most favorable to the plaintiff. Jenkins v. 4 McKeithen, 395 U.S. 411, 421 (1969); Meek v. County of Riverside, 183 F.3d 962, 965 (9th Cir. 5 1999). Still, to survive dismissal for failure to state a claim, a pro se complaint must contain more 6 than ―naked assertions,‖ ―labels and conclusions‖ or ―a formulaic recitation of the elements of a 7 cause of action.‖ Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words, 8 ―[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 9 statements do not suffice.‖ Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim 10 upon which the court can grant relief must have facial plausibility. Twombly, 550 U.S. at 570. 11 ―A claim has facial plausibility when the plaintiff pleads factual content that allows the court to 12 draw the reasonable inference that the defendant is liable for the misconduct alleged.‖ Iqbal, 556 13 U.S. at 678. Attachments to a complaint are considered to be part of the complaint for purposes 14 of a motion to dismiss for failure to state a claim. Hal Roach Studios v. Richard Reiner & Co., 15 896 F.2d 1542, 1555 n. 19 (9th Cir. 1990). 16 A motion to dismiss for failure to state a claim should not be granted unless it appears 17 beyond doubt that the plaintiff can prove no set of facts in support of his claims which would 18 entitle him to relief. Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984). In general, pro se 19 pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 20 404 U.S. 519, 520 (1972). The court has an obligation to construe such pleadings liberally. Bretz 21 v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc). However, the court‘s liberal 22 interpretation of a pro se complaint may not supply essential elements of the claim that were not 23 pled. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 24 Plaintiff‘s Claims 25 This action is proceeding on the amended complaint filed January 3, 2013. The 26 defendants are Sacramento County Sheriff‘s Deputies Place and Kinder, Sacramento County 27 Sheriff‘s Sergeants Martinez and Oania, Sacramento County Sheriff‘s Lieutenant Andris, 28 Sacramento County Sheriff‘s Captain Cooper and Sheriff Jones. These defendants are sued in 2 1 their personal and official capacities. Also named as a defendant is Sacramento County. 2 Plaintiff was classified as a protective custody (―PC‖) inmate while housed at the 3 Sacramento County Jail. (ECF No. 21 at 6.) On March 22, 2012, plaintiff was instructed to put 4 on his tan PC shirt required for court attendance. (Id.) Plaintiff was taken to the basement of the 5 court and placed in a holding area with other PC inmates. (Id.) As plaintiff and the other PC 6 inmates were taken up the stairwell to the courtroom for their hearings by defendants Place and 7 Kinder, they passed general population (―GP‖) inmates who were in the stairwell waiting for their 8 court hearings. (Id. at 7.) Inmate Abeyta, a GP inmate waiting in the stairwell, attacked plaintiff. 9 (Id.) Plaintiff suffered injuries as a result of the attack. (Id. at 10-14.). 10 Plaintiff alleges that immediately after the attack, neither defendant Kinder nor defendant 11 Place took steps to determine whether he required medical attention even though he had a bloody 12 laceration on the outside of his lip. (Id. at 8-9.) After he returned to the holding tank, following 13 his court hearing, plaintiff began feeling severe pain in his mouth and jaw. (Id. at 10.) Plaintiff 14 called defendant Place to the holding cell and told him that he wanted to see medical. (Id. at 11.) 15 Defendant Place looked at plaintiff‘s lip and said, ―you‘re fine.‖ (Id.) Defendant Place offered to 16 get plaintiff some ice for his lip. (Id.) Approximately 30 minutes later defendant Place returned 17 with the ice. (Id. at 11-12.) 18 19 20 Plaintiff alleges that he decided to wait until he got back to his housing area to ask for medical help because he did not want to ―piss-off‖ defendants. (Id. at 12.) After plaintiff returned to his housing unit, he informed the floor officer of his medical 21 need. (Id. at 13.) A short time later, a nurse examined plaintiff‘s lip and told him that she would 22 get him to a doctor. (Id.) Some time later, plaintiff was seen by Dr. Nugget, who informed 23 plaintiff that his cut lip would require sutures. (Id.) Plaintiff continued to suffer great pain and 24 the sutures did not dissolve as promised. (Id. at 13-14.) Plaintiff alleges that his inner lip now 25 has a lump of scar tissue. (Id. at 14.) 26 Plaintiff alleges that defendant Sacramento County has a policy of having GP inmates 27 wait in stairwells for court while PC inmates use the same stairwells without a deputy escort and 28 with no protective barrier. (Id. at 17.) Plaintiff alleges that this policy poses a substantial risk of 3 1 harm to PC inmates because they risk attack by GP inmates. (Id.) 2 Plaintiff alleges that defendant Sacramento County is responsible for the conditions of the 3 holding area. (Id. at 36.) Plaintiff alleges that the purpose of the holding tanks in the holding 4 area is to securely maintain inmates awaiting court hearings. (Id. at 37.) Plaintiff alleges that 5 multiple tanks were installed to allow jail officials to separate different classes of inmates. (Id.) 6 Plaintiff alleges that defendants have chosen to bypass the use of the holding tanks and instead 7 direct GP inmates to wait in the stairwells, putting PC inmates at a great risk of danger. (Id.) 8 Plaintiff alleges that by bypassing the use of holding tanks, defendants have created a custom 9 and/or policy or de facto policy of unsafely mixing the GP and PC inmates. (Id.) 10 Plaintiff seeks injunctive relief and monetary damages. 11 Plaintiff alleges that defendants violated his constitutional right to be free from violence at 12 the hands of other inmates and his right to adequate medical care, conspired to violate his 13 constitutional rights, retaliated against him for filing a grievance, and acted negligently in 14 violation of state law. 15 Discussion re: Motion to Dismiss For Failure to State a Claim 16 Official Capacity 17 Defendants argue that plaintiff‘s official capacity claims against the individually named 18 defendants, i.e., Jones, Cooper, Andris, Martinez, Oania, Place and Kinder, should be dismissed 19 as duplicative and unnecessary. 20 Official capacity claims are another way of pleading an action against an entity of which 21 an officer is an agent. Hafer v. Melo, 502 U.S. 21, 25 (1991) (quoting Kentucky v. Graham, 473 22 U.S. 159, 165 (1985)). If the municipal entity is named as a defendant, it is not only unnecessary 23 and redundant to name an officer in his official capacity after being named in his personal 24 capacity, but it is improper. Luke v. Abbott, 954 F.Supp. 202, 204 (C.D.Cal.1997). 25 26 27 28 Because Sacramento County is named as a defendant, the official capacity claims against the individually named defendants should be dismissed. 1 1 Defendants also argue that the official capacity claims against the individually named defendants should be dismissed on grounds that they have no merit. Defendants cite City of St. 4 1 Failure to Protect Claims Against Defendant Sacramento County 2 Defendants move to dismiss plaintiff‘s failure to protect claims against defendant 3 Sacramento County on the grounds that he has not stated a potentially colorable Eighth 4 Amendment claim. 5 A municipality such as the county is a ―person‖ under section 1983; however, a 6 municipality ―cannot be held liable solely because it employs a tortfeasor—or, in other words, a 7 municipality cannot be held liable under § 1983 on a respondeat superior theory.‖ Monell v. 8 Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 691 (1978). A municipality may be 9 liable under section 1983 for monetary, declaratory, or injunctive relief where the constitutional 10 deprivation was caused by the implementation or execution of ―a policy statement, ordinance, 11 regulation, or decision officially adopted and promulgated by that body‘s officers.‖ Monell, 436 12 U.S. at 690; see Bd. of the Cnty. Comm'rs of Bryan Cnty. v. Brown, 520 U.S. 397, 403–04 13 (1997). 14 To establish municipal liability, plaintiff must show: (1) he was deprived of a 15 constitutional right; (2) the county had a policy, practice, or custom; (3) the policy, practice, or 16 custom amounted to deliberate indifference to one or more of plaintiff's constitutional rights; and 17 (4) the policy, practice, or custom was the ―moving force behind the constitutional violation.‖ 18 Van Ort v. Estate of Stanewich, 92 F.3d 831, 835 (9th Cir. 1996). 19 20 21 22 23 24 25 26 27 28 Louis v. Praprotnik, 485 U.S. 112, 123 (1988), for the proposition that only those municipal officials who have ―final policymaking authority‖ may be subject to Section 1983 liability through their actions. In Prapotnik, the Supreme Court considered the contours of municipal liability. In the section cited by defendants in the motion to dismiss, the Supreme Court noted that in Pembaur v. City of Cincinatti, 475 U.S. 469 (1986), it undertook to define more precisely when a decision by a government official or employee on a single occasion may be enough to establish an unconstitutional municipal policy for Monell liability. 485 U.S. at 123. In Pembauer, the Supreme Court held that ―only those municipal officials who have ‗final policymaking authority‘ may by their actions subject the government to § 1983 liability.‖ Id., quoting Pembaur, 475 U.S. at 483. Defendants‘ citation to Praprotnik addresses the liability of municipalities. The citation does not address official capacity liability of individual defendants. Defendants do not move to dismiss the municipal liability claims against defendant Sacramento County on the grounds that the at-issue policy was not enacted by an authorized decision maker. Accordingly, the undersigned will not address this issue any further. 5 1 Because it appears that plaintiff was a pretrial detainee, and not a convicted prisoner, at 2 the time of the incident, the applicable standard is by way of the due process clause of the 3 Fourteenth Amendment rather than the Eighth Amendment: ―Due process requires that a pretrial 4 detainee not be punished.‖ Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979). ―A sentenced inmate, 5 on the other hand, may be punished, although that punishment may not be ―cruel and unusual‖ 6 under the Eighth Amendment.‖ Id. Nevertheless, as the rights of pretrial detainees under the 7 Fourteenth Amendment ―are comparable‖ to prisoners‘ Eighth Amendment rights, the same 8 standards are applied. Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998), citing Redman v. 9 County of San Diego, 942 F.2d 1435, 1441 (9th Cir. 1991). 10 This is not a case involving the application of force to quell a disturbance in which case a 11 cruel and sadistic standard would apply. Wilson v. Seiter, 501 U.S. 294, 299 (1991). Rather, the 12 issue here is one of failure to protect (whether purposeful or otherwise), which would be 13 governed by Farmer v. Brennan, 511 U.S. 825 (1994). Deliberate indifference is the appropriate 14 standard to be applied here. 15 A prison official‘s deliberate indifference to a substantial risk of harm to an inmate 16 violates the Eighth Amendment. Farmer v. Brennan, 511 U.S. at 828. To succeed on a claim of 17 deliberate indifference to the threat of serious harm or injury by another prisoner, plaintiff must 18 demonstrate that the deprivation of his rights was ―objectively, sufficiently serious.‖ Id. at 834. 19 When the claim is predicated upon the failure to protect, the deprivation is deemed to be 20 sufficiently serious if there was a substantial risk that the prisoner would suffer serious harm. Id. 21 The prisoner must also demonstrate that the defendant had a ―sufficiently culpable state of mind.‖ 22 Id. The prisoner must demonstrate that the defendant knew of and disregarded an excessive risk 23 to his safety: ―the official must both be aware of facts from which the inference could be drawn 24 that a substantial risk of serious harm exists, and he must also draw the inference.‖ Id. at 837. 25 Defendants argue that plaintiff has failed to identify a county policy that gave rise to the 26 incident at issue. Defendants argue that plaintiff pleads only ―labels and conclusions‖ alleging 27 that defendant Sacramento County acted with deliberate indifference by using stairwells as a 28 holding area for GP inmates, while acknowledging that defendant Sacramento County has a 6 1 written policy for segregation of PC inmates, separate holding cells for GP and PC inmates, uses 2 clothing that distinguishes PC inmates, and has officers at the top and the bottom of the stairwell 3 when PC inmates use the stairs into the court. Defendants also note that plaintiff alleges that after 4 he was assaulted, defendants began providing PC inmates with escorts while they used the stairs 5 to get into the court. 6 Plaintiff alleges that defendant Sacramento County has a policy of totally separating GP 7 inmates from PC inmates except on the stairwell. Plaintiff alleges that defendant Sacramento 8 County permits the mixing of GP and PC inmates on the stairwell because it would take too long 9 to release the GP inmates from the holding cells and escort them to court. In other words, 10 plaintiff alleges that defendant disregards the safety of PC inmates in order to promote 11 convenience. 12 Plaintiff alleges that GP and PC inmates are separated in the Sacramento County Jail 13 because GP inmates are ―mandated‖ to assault PC inmates. (ECF No. 21 at 8.) Plaintiff alleges 14 that after attacking plaintiff, inmate Abeyta stated that ―I can‘t be around those guys (PC 15 inmates).‖ (Id.) Plaintiff alleges that defendants were all aware of the constant and long standing 16 threat of violence posed by GP inmates to PC inmates, which created the need for ―protective 17 custody status.‖ (Id. at 17.) Plaintiff alleges that all defendants knew of the risk of harm created 18 if PC and GP inmates were mixed. (Id.) Plaintiff alleges that the ―rule‖ mandating that GP 19 inmates assault PC inmates is long-standing, well grounded and established throughout all 20 correctional institutions, including the Sacramento County Jail. (Id. at 18.) 21 Plaintiff argues that having correctional officers wait at the top and bottom of the stairs 22 and not escort the PC inmates as they ascend the stairs does not sufficiently protect the PC 23 inmates. Plaintiff alleges that he was injured as a result of defendant‘s policy of failing to totally 24 separate PC inmates from GP inmates as they enter the court. 25 Plaintiff‘s allegations regarding defendant‘s policy of mixing GP and PC inmates are 26 more than ―naked assertions,‖ ―labels and conclusions‖ or ―a formulaic recitation of the elements 27 of a cause of action.‖ Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). Because 28 defendant Sacramento County allegedly separates GP and PC inmates in all other circumstances, 7 1 defendant‘s alleged policy of allowing GP inmates and PC inmates to be in such close proximity 2 when they enter the court, allegedly due to convenience, arguably is unconstitutional. For these 3 reasons, the undersigned finds that plaintiff has stated a colorable Fourteenth Amendment claim 4 against defendant Sacramento County for failing to protect plaintiff. Defendant‘s motion to 5 dismiss on this ground should be denied. 6 7 8 Individual Capacity Claims Against Defendants Jones, Cooper, Andris, Martinez, Place and Kinder The individually named defendants, except for defendant Oania, argue that plaintiff has 9 not pled sufficient facts to state a colorable Fourteenth Amendment failure to protect claim 10 against them. Defendants argue that plaintiff has not alleged that any named defendant was 11 aware of any facts that inmate Abeyta, who attacked plaintiff, posed a threat to plaintiff. 12 Defendants argue that there are no facts that would permit an inference that any individually 13 named defendant would have had a suspicion that an assault would occur while deputies were 14 transporting inmates. Defendants argue that plaintiff has plead facts demonstrating that 15 defendants actually took steps to protect his safety including placing him in a holding tank for 16 protective custody inmates, dressing him in clothing that would identify him as a protective 17 custody inmate and having deputies present as he ascended the stairwell. 18 For the reasons the undersigned finds that plaintiff has met his burden of pleading the 19 objective component of his failure to protect claim against defendant Sacramento County, the 20 undersigned finds that plaintiff has met his burden of pleading the objective component of his 21 failure to protect claim against the individually named defendants. Plaintiff has pled facts from 22 which it may be reasonably inferred that he, as a PC inmate, suffered a substantial risk of harm 23 when he walked up the stairs from the holding area to the courtroom. While plaintiff has not 24 alleged that he or defendants knew that inmate Abeyta specifically posed a threat of harm, 25 plaintiff has alleged that PC inmates generally suffered a serious risk of harm if housed with or 26 allowed to be in the same proximity as GP inmates. Based on the nature of plaintiff‘s allegations, 27 plaintiff is not required to show that defendants knew that inmate Abeyta posed a risk of harm to 28 plaintiff. 8 1 Defendants also argue that the measures taken to protect PC inmates demonstrate that 2 plaintiff did not suffer a serious risk of harm. Plaintiff is alleging that defendants took steps to 3 protect PC inmates and kept them totally separated from GP inmates except when they ascended 4 the stairwell to enter the courtroom. Plaintiff alleges that he was still in danger from the GP 5 inmates while ascending the stair even though there were sheriff‘s deputies at the top of the stairs. 6 After plaintiff was attacked, defendants changed their policy to include officer escorts while PC 7 inmates ascended the stairs. However, for purposes of the pending motion to dismiss, the 8 undersigned finds that the measures allegedly taken to protect the PC inmates at the time plaintiff 9 was attacked did not mitigate the substantial risk of harm the PC inmates faced when ascending 10 the stairwell occupied by the GP inmates. 11 Turning to the subjective component of plaintiff‘s failure to protect claim, defendants 12 argue that plaintiff has not plead sufficient facts demonstrating that each individually named 13 defendant acted with deliberate indifference. With regard to supervisory defendants Jones, 14 Cooper, Andris and Martinez, in their objections to the original findings and recommendations, 15 defendants argue that plaintiff‘s claims against supervisory defendants Jones, Cooper, Andris and 16 Martinez are ―official capacity claims, based on their alleged policy-making ability.‖ (ECF No. 17 40 at 2.) Defendants argue that these claims are duplicative of the claims against defendant 18 Sacramento County and should be dismissed. 19 Defendants appear to argue that when plaintiff alleges that he was injured by the 20 execution of defendant Sacramento County‘s policy, defendant Sacramento County is liable for 21 any injury and a claim against the defendants in their individual capacities is barred. This 22 argument is without merit. See Craft v. County of San Bernardino, 2006 WL 4941829 at *2 23 (C.D. Cal. 2006); Redman v. County of San Diego, 942 F.2d 1435 (9th Cir. 1991). 24 Redman, supra, concerned a county‘s policy regarding the housing of homosexual 25 detainees. The plaintiffs brought a Monell claim against the county and also sought to hold the 26 sheriff individually liable for his participation in the promulgation of the policy in question. The 27 Ninth Circuit held that the sheriff could be held individually liable. The Ninth Circuit noted that 28 in order for individual liability to attach, the defendants must have had either a ―personal 9 1 involvement in the constitutional deprivation,‖ or there must exist a sufficient causal connection 2 between the action complained of and the official sued. Id. at 1446. With respect to jail policies, 3 the Ninth Circuit found, 4 Supervisory liability exists even without overt personal participation in the offensive act if supervisory officials implement a policy so deficient that the policy ―itself is a repudiation of constitutional rights‖ and is ―the moving force of the violation.‖ 5 6 7 Id. (citations omitted.) 8 9 Thus, the requisite causal connection can be established by the official setting in motion a policy which the official knows or reasonably should know would cause others to inflict the 10 constitutional injury. Id. at 1447. Merely being familiar with the policy or implementing it as 11 directed by one‘s supervisor, however, is not sufficient to attach liability. Rather, the official 12 ―must have been responsible for developing and promulgating the policies in question.‖ Id. at 13 1449. Plaintiff alleges that defendant Sheriff Jones had the ―authority and ability to halt the 14 15 unsafe mixing of PC and GP inmates despite his knowledge of the safety risks such mixing poses, 16 allowed the mixing to continue, and continues to allow such mixing of PC and GP inmates in 17 blatant and willful disregard of plaintiff‘s and all PC inmates‘ safety and protection.‖ (ECF No. 18 21 at 36.) Plaintiff goes on to allege that defendant Jones either created the policy of permitting 19 the mixing of GP and PC inmates on the stairwell or knowingly acquiesced to its creation and 20 implementation. (Id. at 47.) Plaintiff‘s claim that defendant Sheriff Jones created the at-issue policy is sufficient to 21 22 establish supervisory liability pursuant to Redman. Accordingly, defendants‘ motion to dismiss 23 the claims against defendant Jones in his individual capacity should be denied. Defendants move to dismiss the claims against defendant Cooper believing that plaintiff‘s 24 25 claims against this defendant seem to be only that his grievances were not processed to his 26 satisfaction. ―[I]nmates lack a separate constitutional entitlement to a specific prison grievance 27 procedure.‖ Ramirez v. Galaza, 334 F.3d 850, 969 (9th Cir. 2003). 28 //// 10 Plaintiff does allege that on July 3, 2012, defendant Cooper responded to plaintiff‘s 1 2 grievance regarding the at-issue policy, stating that there was no additional information he could 3 provide. (ECF No. 21 at 36.) However, plaintiff goes on to allege that defendant Cooper, as the 4 Commander of the Court Security Division, either created or knowingly acquiesced to the 5 implementation of the policy permitting the mixing of GP and PC inmates on the stairwell. (Id. at 6 47.) 7 Plaintiff‘s claim that defendant Cooper, the Commander of the Court Security Division, 8 created the at-issue policy is sufficient to establish supervisory liability pursuant to Redman. 9 Accordingly, defendants‘ motion to dismiss the claims against defendant Cooper in his individual 10 capacity should be denied. Plaintiff is not basing defendant Cooper‘s liability solely on his 11 response to a grievance. 12 Defendants move to dismiss the claims against defendant Andris on the grounds that the 13 only claim against this defendant is that he responded to one of plaintiff‘s grievances. Plaintiff 14 alleges that on June 12, 2012, defendant Andris responded to plaintiff‘s grievance regarding the 15 incident. (ECF No. at 35.) However, plaintiff goes on to allege that defendant Andris, the 16 Assistant Commander of the Court Security Division, either created or knowingly acquiesced to 17 the implementation of the policy permitting the mixing of GP and PC inmates on the stairwell. 18 (Id. at 47.) 19 Plaintiff‘s claim that defendant Andris, the Assistant Commander of the Court Security 20 Division, created the at-issue policy is sufficient to establish supervisory liability pursuant to 21 Redman. Accordingly, defendants‘ motion to dismiss the claims against defendant Andris in his 22 individual capacity should be denied. Plaintiff is not basing defendant Andris‘s liability solely 23 on his response to a grievance. 24 Defendants move to dismiss the claims against defendant Martinez on the grounds that 25 plaintiff‘s claims against defendant Martinez are based on his response to a grievance. Plaintiff 26 alleges that defendant Martinez interviewed him in response to a grievance he filed regarding the 27 incident. (Id. at 24-26.) Once again, however, plaintiff goes on to allege that defendant Martinez, 28 a Sergeant, either created or knowingly acquiesced to the implementation of the policy permitting 11 1 the mixing of GP and PC inmates on the stairwell. (Id. at 48.) 2 Plaintiff‘s claim that defendant Martinez, a Sergeant, created the at-issue policy is 3 sufficient to establish supervisory liability pursuant to Redman. Plaintiff is not basing defendant 4 Martinez‘s liability solely on his response to a grievance. Accordingly, defendants‘ motion to 5 dismiss the individual capacity claims against defendant Martinez should be denied. 6 Defendants move to dismiss the claims against defendants Place and Kinder on the 7 grounds that there are no allegations in the amended complaint that defendants had knowledge 8 that plaintiff faced a substantial risk of harm when he ascended the stairwell that was occupied by 9 the GP inmates. 10 Plaintiff alleges that defendants Place and Kinder were the deputies who directed plaintiff 11 to ascend the stairwell where the GP inmates were standing. (Id. at 7.) Plaintiff alleges that 12 defendants Place and Kinder knew that plaintiff was a PC inmate. (Id.) Plaintiff alleges that all 13 defendants, including defendants Place and Kinder, had knowledge that PC inmates needed to be 14 segregated from GP inmates for their own protection. (Id.) Based on these allegations, it is 15 reasonable to infer that defendants Place and Kinder knew that plaintiff, a PC inmate, faced a 16 serious risk of harm when he was permitted to be in close physical proximity to the GP inmates as 17 he ascended the stairs from the holding area to the courtroom. Based on these allegations, the 18 undersigned finds that plaintiff has alleged sufficient facts against defendants Place and Kinder to 19 state a potentially Fourteenth Amendment claim. Accordingly, defendants‘ motion to dismiss the 20 failure to protect claims against defendants Place and Kinder should be denied. 21 Medical Care Claims 22 Plaintiff alleges that defendants Place and Kinder violated his constitutional right to 23 adequate medical care for the injuries he suffered as a result of the assault by inmate Abeyta. In 24 particular, plaintiff alleges that defendants Place and Kinder caused a delay in his receipt of 25 medical care from Dr. Nugget which could have resulted in disfigurement of his lip or a painful 26 infection. (Id. at 50.) Plaintiff alleges that he suffered unnecessary pain as a result of his delay in 27 receipt of treatment. (Id.) 28 //// 12 1 Legal Standard 2 To state a section 1983 claim for a constitutional violation based on inadequate medical 3 care, plaintiff must allege ―acts or omissions sufficiently harmful to evidence deliberate 4 indifference to serious medical needs.‖ Estelle v. Gamble, 429 U.S. 97, 106 (1976). A pretrial 5 detainee‘s claim for unconstitutional conditions of confinement arises from the Fourteenth 6 Amendment Due Process Clause rather than from the Eighth Amendment prohibition against 7 cruel and unusual punishment. Bell v. Wolfish, 441 U.S. 520, 535, 1979). Nevertheless, the 8 same standards are applied, requiring proof that the defendant acted with deliberate indifference. 9 See Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). 10 To prevail, plaintiff must show both that his medical needs were objectively serious, and 11 that defendant possessed a sufficiently culpable state of mind. Wilson v. Seiter, 501 U.S. 294, 12 297–99 (1991); McKinney v. Anderson, 959 F.2d 853, 854 (9th Cir. 1992). A serious medical 13 need is one that significantly affects an individual‘s daily activities, an injury or condition a 14 reasonable doctor or patient would find worthy of comment or treatment, or the existence of 15 chronic and substantial pain. See, e.g., McGuckin v. Smith, 974 F.2d 1050, 1059–60 (9th Cir. 16 1992), overruled on other grounds by WMX Techs. v. Miller, 104 F.2d 1133, 1136 (9th Cir. 17 1997) (en banc). 18 Deliberate indifference may be shown by the denial, delay or intentional interference with 19 medical treatment or by the way in which medical care is provided. Hutchinson v. United States, 20 838 F.2d 390, 394 (9th Cir. 1988). To act with deliberate indifference, a prison official must both 21 be aware of facts from which the inference could be drawn that a substantial risk of serious harm 22 exists, and he must also draw the inference. Farmer v. Brennan, 511 U.S. 825, 837, (1994). Thus, 23 a defendant is liable if he knows that plaintiff faces ―a substantial risk of serious harm and 24 disregards that risk by failing to take reasonable measures to abate it.‖ Id. at 847. ―[I]t is enough 25 that the official acted or failed to act despite his knowledge of a substantial risk of serious harm.‖ 26 Id. at 842. A physician need not fail to treat an inmate altogether in order to violate that inmate's 27 Eighth Amendment rights. Ortiz v. City of Imperial, 884 F.2d 1312, 1314 (9th Cir. 1989). 28 //// 13 1 A failure to competently treat a serious medical condition, even if some treatment is 2 prescribed, may constitute deliberate indifference in a particular case. Id. However, it is 3 important to differentiate common law negligence claims of malpractice from claims predicated 4 on violations of the Eight Amendment's prohibition of cruel and unusual punishment. In 5 asserting the latter, ―[m]ere ‗indifference,‘ ‗negligence,‘ or ‗medical malpractice‘ will not support 6 this cause of action.‖ Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing 7 Estelle, 429 U.S. at 105–06). 8 Discussion 9 Defendants argue that plaintiff has not alleged any facts demonstrating that defendant 10 Place acted with deliberate indifference to a serious medical need. In essence, plaintiff is arguing 11 that by telling plaintiff that he did not need medical care, defendant Place delayed the treatment 12 he received from Dr. Nugget. 13 A delay in medical care must have caused harm. See, e.g., O'Loughlin v. Doe, 920 F.2d 14 614, 617 (9th Cir. 1990) (repeatedly failing to satisfy requests for aspirins and antacids to 15 alleviate headaches, nausea and pains is not a constitutional violation; isolated occurrences of 16 neglect may constitute grounds for medical malpractice but do not rise to the level of unnecessary 17 and wanton infliction of pain); Anthony v. Dowdle, 853 F.2d 741, 743 (9th Cir. 1988) (no more 18 than negligence stated where prison warden and work supervisor failed to provide prompt and 19 sufficient medical care); Wood v. Housewright, 900 F.2d 1332, 1334, 1335 (1990) (affirming 20 finding that 11–day delay in treatment for broken orthopedic pin in inmate's shoulder did not 21 cause sufficient harm in part because ―the only remedy immediately available was a prescription 22 for painkillers.‖); Mayfield v. Craven, 433 F.2d 873, 874 (9th Cir. 1970) (11–day delay in treating 23 inmate‘s ―serious facial bone fractures‖ did not violate Eighth Amendment.) 24 The only harm plaintiff suffered as a result of the alleged delay in his receipt of medical 25 care was some additional pain. However, the alleged delay in plaintiff‘s receipt of treatment from 26 Dr. Nugget from the time plaintiff initially requested it from defendant Place was very brief, i.e., 27 an hour or two at most. Pursuant to the case law cited above, the undersigned finds that this brief 28 delay did not constitute deliberate indifference. Accordingly, the motion to dismiss plaintiff‘s 14 1 2 inadequate medical care claim against defendant Place should be granted. Defendants move to dismiss plaintiff‘s inadequate medical care against defendant Kinder 3 on the grounds that there are not allegations that defendant Kinder was aware that plaintiff 4 suffered any injury after being attacked by inmate Abeyta. Defendants argue that plaintiff‘s only 5 allegation against inmate Abeyta is that he failed to ask plaintiff if he wanted medical attention. 6 The undersigned agrees with defendants that plaintiff has failed to link inmate Abeyta to 7 his claim of inadequate medical care. Moreover, as discussed above, plaintiff‘s claim of 8 inadequate medical care is based on his brief delay in receipt of treatment from Dr. Nugget. Even 9 if plaintiff could link inmate Abeyta to this delay, he would still not have stated a colorable 10 inadequate medical care claim for the reasons discussed above. Accordingly, plaintiff‘s claim of 11 inadequate medical care against defendant Kinder should be dismissed. 12 Conspiracy 13 Plaintiff alleges that in order to escape liability for their involvement in the assault on 14 plaintiff by inmate Abeyta, defendants Place and Kinder intentionally failed to investigate the 15 assault and agreed not to report it or to issue any disciplinary charges against inmate Abeyta. 16 (ECF No. 21 at 51.) 17 To allege a claim of conspiracy under section 1983, plaintiff must allege facts with 18 sufficient particularity to show an agreement or a meeting of the minds to violate his 19 constitutional rights. Margolis v. Ryan, 140 F.3d 850, 853 (9th Cir. 1998); Woodrum v. 20 Woodward Cnty., 866 F.2d 1121, 1126 (9th Cir. 1989). Thus, pleading a conspiracy requires 21 more than a conclusory allegation that defendants conspired to deprive plaintiff‘s civil rights. 22 The Ninth Circuit applies a heightened pleading standard to conspiracy claims under section 1983 23 and has held that mere conclusory allegations of conspiracy (i.e. bare allegations that a defendant 24 ―conspired‖ with another) are insufficient to state a claim. See Harris v. Roderick, 126 F.3d 25 1189, 1195 (9th Cir. 1997); Buckey v. Cnty. of Los Angeles, 968 F.2d 791, 794 (9th Cir. 1992). 26 Defendants argue that plaintiff‘s conclusory conspiracy claims are contradicted by other 27 allegations in the amended complaint. For example, plaintiff alleges that one week after the 28 incident, defendant Place issued an incident report. (ECF No. 21 a 21.) Plaintiff alleges that 15 1 defendant Place reported the facts of the assault to the District Attorney for possible prosecution. 2 (Id. at 28.) Plaintiff also alleges that inmate Abeyta was subject to disciplinary hearings and 3 found guilty of assault. (Id. at 23.) 4 Plaintiff‘s conclusory claims of conspiracy are unsupported and contradicted by other 5 allegations in the amended complaint, as set forth above. For this reason, defendants‘ motion to 6 dismiss plaintiff‘s conspiracy claims should be granted. 7 State Law Negligence Claims 8 9 Plaintiff alleges that defendants acted negligently, in violation of state law, when they failed to protect him from the attack by inmate Abeyta. (ECF No. 21 at 52.) Plaintiff also alleges 10 that defendant Sacramento County acted negligently by maintaining the jail in a condition that 11 increased the risk that plaintiff would be injured. (Id. at 53.) 12 Regarding the individually named defendants, defendants argue that they are immune 13 from liability for acts of another person, i.e., inmate Abeyta, pursuant to California Government 14 Code § 820.8. This statute provides, 15 Except as otherwise provided by statute, a public employee is not liable for an injury caused by the act or omission of another person. Nothing in this section exonerates a public employee from liability for injury proximately caused by his own negligent or wrongful act. 16 17 18 Cal. Govt. Code § 820.8. 19 This statute precludes only vicarious liability through the doctrine of respondeat superior, 20 and by its own terms, it does not apply when the public employee seeking immunity has himself 21 committed a wrongful act. See Weaver v. State of California, 63 Cal.App.4th 188, 202-03 22 (1998); see also Martinez v. Cahill, 215 Cal.App.2d 823, 824 (1963) (interpreting predecessor 23 statute). 24 Plaintiff is claiming that defendants created and implemented a policy which caused him 25 to be assaulted by a GP inmate. Plaintiff‘s claim against defendants is not based on the doctrine 26 of respondeat superior. Instead, plaintiff alleges that defendants proximately caused the injuries 27 he suffered as a result of the assault. Accordingly, defendants‘ motion to dismiss plaintiff‘s state 28 law claims pursuant to California Penal Code § 820.8 should be denied. 16 Defendants move to dismiss plaintiff‘s negligence claim against defendant Sacramento 1 2 County on the grounds that defendant Sacramento County is not liable for an injury to a prisoner 3 pursuant to California Government Code § 844.6(a)(2). Defendants also argue that, pursuant to 4 California Government Code § 845.2, defendant Sacramento County is immune to actions 5 alleging insufficient equipment, personnel or facilities. 6 California Government Code Section 844.6(a)(2) provides a public entity is not liable for 7 an injury to any prisoner. Pursuant to this section, defendant Sacramento County is not liable for 8 the injuries plaintiff suffered as a result of the assault by inmate Abeyta. Accordingly, plaintiff‘s 9 negligence claim against defendant Sacramento County should be dismissed. 10 The undersigned need not determine whether California Government Code § 845.2 bars 11 plaintiff‘s claim against defendant Sacramento County for maintaining unsafe jail condition, 12 which allegedly caused the assault by inmate Abeyta, as this claim is barred by § 844.6(a)(2). 13 Motion to Dismiss For Failure to Exhaust Administrative Remedies 14 Plaintiff alleges that defendant Oania retaliated against him for filing grievances. 15 Defendants move to dismiss this claim on the grounds that plaintiff failed to exhaust his 16 administrative remedies. 17 In Woods v. Carey, 684 F.3d 934, 936 (9th Cir. 2012), the Ninth Circuit held that the 18 notice required under Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc), and Wyatt v. 19 Terhune, 315 F.3d 1108 (9th Cir. 2003), regarding the requirements for opposing motions to 20 dismiss for failure to exhaust administrative remedies must be provided to a pro se prisoner 21 plaintiff at the time the defendants‘ motion was filed. Defendants‘ motion does not contain the 22 notice as required by Woods.2 For this reason, defendants‘ motion to dismiss plaintiff‘s 23 retaliation claim for failure to exhaust administrative remedies should be denied.3 24 //// 25 2 26 27 28 While plaintiff is now out of custody, at the time he filed his opposition to the pending motion, he was incarcerated in the Sacramento County Jail. 3 Motions to dismiss for failure to exhaust administrative remedies should be raised in nonenumerated 12(b) motions. Wyatt v. Terhune, 315 F.3d 1108, 1117-19 (9th Cir. 2003). 17 1 Accordingly, IT IS HEREBY RECOMMENDED that: 2 1. Defendants‘ motion to dismiss (ECF No. 28) be granted in part and denied in part; 3 2. Defendants‘ motion be granted as to 1) plaintiff‘s official capacity claims against the 4 individually named defendants; 2) plaintiff‘s inadequate medical care claims against 5 defendants Place and Kinder; 3) plaintiff‘s conspiracy claims against defendants Place 6 and Kinder; 4) plaintiff‘s negligence claim against defendant Sacramento County; 3. Defendants‘ motion be denied as to 1) plaintiff‘s failure to protect claims against all 7 8 defendants; 2) plaintiff‘s negligence claims against the individually named defendants; 9 3) the claim that plaintiff failed to administratively exhaust his retaliation claim. 10 These findings and recommendations are submitted to the United States District Judge 11 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 12 after being served with these findings and recommendations, any party may file written 13 objections with the court and serve a copy on all parties. Such a document should be captioned 14 ―Objections to Magistrate Judge‘s Findings and Recommendations.‖ Any response to the 15 objections shall be filed and served within fourteen days after service of the objections. The 16 parties are advised that failure to file objections within the specified time may waive the right to 17 appeal the District Court‘s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 18 Dated: March 13, 2014 19 20 Ag2165.fr 21 22 23 24 25 26 27 28 18

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