Solano v. Lucca

Filing 30

ORDER signed by Magistrate Judge Craig M. Kellison on 03/27/17 ordering plaintiff's motion to amend 16 is denied as unnecessary. Plaintiff's motion to amend 19 is denied as duplicative. Defendant's motion to stay discovery 25 is granted. Defendant's motion to dismiss 22 is denied. Defendant shall file a response to the complaint within 30 days of the date of this order. (Plummer, M)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

HECTOR SOLANO,
Plaintiff,

12
vs.

13
14

No. 2:15-cv-1296-CMK-P

ORDER

NESTHOR LUCCA,
Defendant.

15

/

16

Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42

17
18

U.S.C. § 1983. Pursuant to the written consent of all parties, this case is before the undersigned

19

as the presiding judge for all purposes, including entry of final judgment. See 28 U.S.C. §

20

636(c). Pending before the court is defendants’ motion to dismiss (Doc. 22). Plaintiff filed an

21

opposition to the motion (Doc. 23); defendants filed a reply (Doc. 24). In addition, plaintiff has

22

filed two motions to amend his complaint (Docs. 16, 19), and defendants have filed a motion to

23

stay discovery (Doc. 25).

24

///

25

///

26

///
1

1

I. BACKGROUND

2

Plaintiff brings this action for use of excessive force in violation of the Eighth

3

Amendment. Originally filed in June 2015, after being served the defendant filed a motion to

4

dismiss. In response, plaintiff filed a motion to amend (Doc. 16) and his first amended complaint

5

(Doc. 15). Federal Rule of Civil Procedure 15(a)(1) provides that a party may amend his

6

pleading once as a matter of right within 21 days after serving it, or within 21 days of a

7

responsive pleading or motion under Rule 12(b), (e), or (f). Here, plaintiff filed his amended

8

complaint within the time provided by Rule 15(a), thus a motion to amend was unnecessary and

9

will be denied as such. Plaintiff then filed a duplicative motion to amend (Doc. 19) and amended

10

complaint (Doc. 20). It is unclear to the court whether this was in error or whether these

11

documents somehow ended up being filed twice by accident. Either way, the second motion to

12

amend and second amended complaint are duplicative, and will be denied as such. The operative

13

complaint in this action is plaintiff’s first amended complaint (Doc. 15). As defendant’s original

14

motion to dismiss was aimed at the original complaint, upon the filing of the first amended

15

complaint, defendant withdrew the motion to dismiss (Doc. 14). Thereafter, and in response to

16

plaintiff’s amended complaint, defendant filed a new motion to dismiss (Doc. 22), which is now

17

pending.

18

In addition, given the pending motion to dismiss, defendant filed a motion to stay

19

discovery (Doc. 25) until resolution of the motion to dismiss. Plaintiff filed a notice of non-

20

opposition to that motion. As no answer has been filed, and no scheduling order issued, the

21

motion to stay discovery will therefore be granted. A scheduling order addressing discovery

22

deadlines will be issued after an answer to the complaint is filed.

23

This action proceeds on the first amended complaint. Therein, plaintiff alleges

24

that defendant Lucca used unnecessary and excessive force maliciously against him. He

25

contends that he was placed in a holding cage wherein he was required to undergo an unclothed

26

body search by the defendant. After the search was complete, he was given a pair of boxers to
2

1

wear. At that time, plaintiff was suicidal and informed defendant Lucca that he wanted to kill

2

himself. As a result, defendant placed him in restraints and required a urinalysis. Defendant

3

Lucca handled him aggressively and was verbally abusive to him. Plaintiff attempted to provide

4

urine for the test, but was unable out of fear and his suicidal thoughts. Defendant Lucca became

5

irate and stated, “watch motherfucker, your gonna get yours,” intimating plaintiff’s safety was in

6

jeopardy. Defendant Lucca was aggressive while placing plaintiff back in the holding cage.

7

Defendant Lucca then escorted plaintiff to suicide watch, with plaintiff in restraints. During the

8

escort to suicide watch, defendant Lucca sprayed plaintiff with pepper spray on the back, arm and

9

buttock areas. Defendant Lucca laughed, and stated, “I told you so.” The pepper spray made

10

plaintiff’s torso, boxers, arm and buttocks dripping wet, and covered his anus which resulted in

11

extreme pain while defecating for three days. Defendant Lucca took plaintiff to the medical

12

clinic for decontamination. Because defendant Lucca was present, plaintiff was fearful of telling

13

medical what actually happened, so Lucca reported he accidently pepper sprayed plaintiff which

14

resulted in the incident being reported as an unusual occurrence instead of use of force.

15

II. MOTION TO DISMISS

16

Defendant brings this motion to dismiss pursuant to Federal Rule of Civil

17

Procedure 12(b)(6) for failure to state a claim. Specifically, defendant contends the first

18

amended complaint fails to state a claim for use of excessive force as it is clear from the facts

19

alleged and the attachment to the complaint that the discharge of the pepper spray was accidental

20

and therefore cannot be the basis for use of excessive force claim. In addition, defendant claims

21

he is entitled to qualified immunity as the discharge of pepper spray was accidental.

22

Rule 12(b)(6) provides for motions to dismiss for “failure to state a claim upon

23

which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In considering a motion to dismiss, the

24

court must accept all allegations of material fact in the complaint as true. See Erickson v.

25

Pardus, 551 U.S. 89, 93-94 (2007). The court must also construe the alleged facts in the light

26

most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see also Hosp.
3

1

Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976); Barnett v. Centoni, 31 F.3d 813, 816

2

(9th Cir. 1994) (per curiam). All ambiguities or doubts must also be resolved in the plaintiff’s

3

favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). Legally conclusory statements, not

4

supported by actual factual allegations, need not be accepted. See Ashcroft v. Iqbal, 129 S. Ct.

5

1937, 1949-50 (2009). Pro se pleadings are held to a less stringent standard than those drafted by

6

lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972). However, to survive dismissal for

7

failure to state a claim, a pro se complaint must contain more than “naked assertions,” “labels

8

and conclusions” or “a formulaic recitation of the elements of a cause of action.” Bell Atlantic

9

Corp. v. Twombly, 550 U.S. 662, 544, 555-57 (2007).
In deciding a Rule 12(b)(6) motion, the court generally may not consider materials

10
11

outside the complaint and pleadings. See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998);

12

Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). The court may, however, consider: (1)

13

documents whose contents are alleged in or attached to the complaint and whose authenticity no

14

party questions, see Branch, 14 F.3d at 454; (2) documents whose authenticity is not in question,

15

and upon which the complaint necessarily relies, but which are not attached to the complaint, see

16

Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); and (3) documents and materials

17

of which the court may take judicial notice, see Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir.

18

1994).

19

The treatment a prisoner receives in prison and the conditions under which the

20

prisoner is confined are subject to scrutiny under the Eighth Amendment, which prohibits cruel

21

and unusual punishment. See Helling v. McKinney, 509 U.S. 25, 31 (1993); Farmer v. Brennan,

22

511 U.S. 825, 832 (1994). The Eighth Amendment “embodies broad and idealistic concepts of

23

dignity, civilized standards, humanity, and decency.” Estelle v. Gamble, 429 U.S. 97, 102

24

(1976). Conditions of confinement may, however, be harsh and restrictive. See Rhodes v.

25

Chapman, 452 U.S. 337, 347 (1981). Nonetheless, prison officials must provide prisoners with

26

“food, clothing, shelter, sanitation, medical care, and personal safety.” Toussaint v. McCarthy,
4

1

801 F.2d 1080, 1107 (9th Cir. 1986). A prison official violates the Eighth Amendment only

2

when two requirements are met: (1) objectively, the official’s act or omission must be so serious

3

such that it results in the denial of the minimal civilized measure of life’s necessities; and (2)

4

subjectively, the prison official must have acted unnecessarily and wantonly for the purpose of

5

inflicting harm. See Farmer, 511 U.S. at 834. Thus, to violate the Eighth Amendment, a prison

6

official must have a “sufficiently culpable mind.” See id.

7

When prison officials stand accused of using excessive force, the core judicial

8

inquiry is “whether force was applied in a good-faith effort to maintain or restore discipline, or

9

maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 6-7 (1992);

10

Whitley v. Albers, 475 U.S. 312, 320-21 (1986). The “malicious and sadistic” standard, as

11

opposed to the “deliberate indifference” standard applicable to most Eighth Amendment claims,

12

is applied to excessive force claims because prison officials generally do not have time to reflect

13

on their actions in the face of risk of injury to inmates or prison employees. See Whitley, 475

14

U.S. at 320-21. In determining whether force was excessive, the court considers the following

15

factors: (1) the need for application of force; (2) the extent of injuries; (3) the relationship

16

between the need for force and the amount of force used; (4) the nature of the threat reasonably

17

perceived by prison officers; and (5) efforts made to temper the severity of a forceful response.

18

See Hudson, 503 U.S. at 7. The absence of an emergency situation is probative of whether force

19

was applied maliciously or sadistically. See Jordan v. Gardner, 986 F.2d 1521, 1528 (9th Cir.

20

1993) (en banc). The lack of injuries is also probative. See Hudson, 503 U.S. at 7-9. Finally,

21

because the use of force relates to the prison’s legitimate penological interest in maintaining

22

security and order, the court must be deferential to the conduct of prison officials. See Whitley,

23

475 U.S. at 321-22.

24

The undersigned agrees with defendant’s contention that an accidental use of

25

force does not suffice for an Eighth Amendment violation. See Wilson v. Seiter, 501 U.S. 294,

26

300 (1991). However, reading the complaint in the light most favorable to plaintiff, as the court
5

1

must, plaintiff alleges the actions of the defendant were not accidental but malicious and done

2

with the intent to harm or punish plaintiff. While the medical report does indicate the application

3

of the pepper spray was done accidentally, and the notes indicate that is was as plaintiff reported,

4

the complaint explains plaintiff did not state the spraying was accidental. Instead, plaintiff

5

alleges that he was fearful of reporting what happened so he stayed silent, that it was actually

6

defendant Lucca who informed the nurse that it was an accidental spray. In addition, plaintiff

7

alleges in the complaint that defendant Lucca sprayed him with the pepper spray in direct

8

response to plaintiff being unable to provide a urine test and plaintiff’s suicidal statement.

9

The truth of the allegations is not weighed in resolving a motion to dismiss. See

10

Erickson, 551 U.S. at 93-94. Rather, the alleged facts are taken as true so long as they are

11

reasonably plausible. Here, it is reasonably plausible that the defendant intentionally sprayed

12

plaintiff with the pepper spray. There is nothing in the complaint, even considering the medical

13

notes attached thereto, which concedes the spraying was accidental. Accordingly, the motion to

14

dismiss for failure to state a claim must be denied.

15

Next, defendant contends he is entitled to qualified immunity as well as Eleveth

16

Amendment immunity. To the extent plaintiff argues he is suing defendant Lucca in his official

17

capacity for damages, the undersigned agrees with the defendant that the Eleventh Amendment

18

would protect him from such a suit. The Eleventh Amendment bars actions seeking damages

19

from state officials acting in their official capacities. See Eaglesmith v. Ward, 73 F.3d 857, 859

20

(9th Cir. 1995); Pena v. Gardner, 976 F.2d 469, 472 (9th Cir. 1992) (per curiam).

21

As to the defendant’s claim for qualified immunity in his individual capacity, such

22

a claim is based on the same interpretation of facts discussed above, namely that the incident was

23

an accident. Government officials enjoy qualified immunity from civil damages unless their

24

conduct violates “clearly established statutory or constitutional rights of which a reasonable

25

person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In general,

26

qualified immunity protects “all but the plainly incompetent or those who knowingly violate the
6

1

law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). In ruling upon the issue of qualified

2

immunity, the initial inquiry is whether, taken in the light most favorable to the party asserting

3

the injury, the facts alleged show the defendant’s conduct violated a constitutional right. See

4

Saucier v. Katz, 533 U.S. 194, 201 (2001). If a violation can be made out, the next step is to ask

5

whether the right was clearly established. See id. This inquiry “must be undertaken in light of

6

the specific context of the case, not as a broad general proposition . . . .” Id. “[T]he right the

7

official is alleged to have violated must have been ‘clearly established’ in a more particularized,

8

and hence more relevant, sense: The contours of the right must be sufficiently clear that a

9

reasonable official would understand that what he is doing violates that right.” Id. at 202

10

(citation omitted). Thus, the final step in the analysis is to determine whether a reasonable

11

officer in similar circumstances would have thought his conduct violated the alleged right. See

12

id. at 205.
When identifying the right allegedly violated, the court must define the right more

13
14

narrowly than the constitutional provision guaranteeing the right, but more broadly than the

15

factual circumstances surrounding the alleged violation. See Kelly v. Borg, 60 F.3d 664, 667

16

(9th Cir. 1995). For a right to be clearly established, “[t]he contours of the right must be

17

sufficiently clear that a reasonable official would understand [that] what [the official] is doing

18

violates the right.” See Anderson v. Creighton, 483 U.S. 635, 640 (1987). Ordinarily, once the

19

court concludes that a right was clearly established, an officer is not entitled to qualified

20

immunity because a reasonably competent public official is charged with knowing the law

21

governing his conduct. See Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982). However, even

22

if the plaintiff has alleged a violation of a clearly established right, the government official is

23

entitled to qualified immunity if he could have “reasonably but mistakenly believed that his . . .

24

conduct did not violate the right.” Jackson v. City of Bremerton, 268 F.3d 646, 651 (9th Cir.

25

2001); see also Saucier, 533 U.S. at 205.

26

///
7

1

The first factors in the qualified immunity analysis involve purely legal questions.

2

See Trevino v. Gates, 99 F.3d 911, 917 (9th Cir. 1996). The third inquiry involves a legal

3

determination based on a prior factual finding as to the reasonableness of the government

4

official’s conduct. See Neely v. Feinstein, 50 F.3d 1502, 1509 (9th Cir. 1995). The district court

5

has discretion to determine which of the Saucier factors to analyze first. See Pearson v.

6

Callahan, 555 U.S. 223, 236 (2009). In resolving these issues, the court must view the evidence

7

in the light most favorable to plaintiff and resolve all material factual disputes in favor of

8

plaintiff. Martinez v. Stanford, 323 F.3d 1178, 1184 (9th Cir. 2003).
Again, the undersigned agrees with defendant’s contention that qualified

9
10

immunity applies as protection from suit for good faith misjudgments and mistakes. See Jackson,

11

268 F.3d at 651, Saucier, 533 U.S. at 205. However, defendant’s contention that the incident

12

was accidental, as discussed above, is not conceded in the complaint and a reasonable reading of

13

the complaint is that the action was not accidental but deliberate and done with the intention to

14

harm or punish plaintiff. As such, the undersigned cannot find qualified immunity protects

15

defendant from this action at this time. Taking the facts alleged as true, and viewing them in the

16

light most favorable to plaintiff, an intentional application of pepper spray, done with the intent

17

to harm a prisoner, could be a violation of the prisoner’s Eighth Amendment rights. The right at

18

issue in this case, the right to be free from intentional use of excessive force, is clearly

19

established. Thus, the undersigned finds application of qualified immunity does not apply at this

20

time.

21

III.

22

Based on the foregoing discussion, the undersigned finds the complaint, read

CONCLUSION

23

liberally, sufficiently states a claim against the defendant for violation of the Eighth Amendment.

24

The undersigned further finds qualified immunity does not apply to protect the defendant from

25

this action at this time.

26

///
8

1

Accordingly, IT IS HEREBY ORDERED that:

2

1.

Plaintiff’s motion to amend (Doc. 16) is denied as unnecessary;

3

2.

Plaintiff’s motion to amend (Doc. 19) is denied as duplicative;

4

3.

Defendant’s motion to stay discovery (Doc. 25) is granted;

5

4.

Defendant’s motion to dismiss (Doc. 22) is denied; and

6

5.

Defendant shall file a response to the complaint within 30 days of the date

7

of this order.

8
9
10
11

DATED: March 27, 2017
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
9