Rodriguez v. Baughman et al

Filing 60

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 10/6/2020 RECOMMENDING defendant Dr. Friend's 54 motion to dismiss; and defendant Dr. Friend be ordered to file an answer. Referred to Judge Morrison C. England, Jr.; Objections to F&R due within 14 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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STEVEN GARCIA RODRIGUEZ,

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No. 2:18-cv-0655 MCE CKD P

Plaintiff,

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v.

FINDINGS AND RECOMMENDATIONS

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DAVID BAUGHMAN, et al.,

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Defendants.

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Plaintiff is a California prisoner proceeding pro se with an action for violation of civil

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rights under 42 U.S.C. § 1983. On May 13, 2020, the court screened plaintiff’s amended

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complaint as the court is required to do under 28 U.S.C. § 1915A(a). The court found that

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plaintiff could proceed on a claim arising under the Eighth Amendment for excessive force

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against defendant Dr. John H. Friend. Defendant Dr. Friend has filed a motion to dismiss.
In his amended complaint, plaintiff alleges he was “tortured” by Dr. Friend on September

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12, 2017 by means of electrical shock at California State Prison, Sacramento. Plaintiff asserts

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that at one point, he asked Dr. Friend to stop shocking him. In response, Dr. Friend turned up the

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electricity to inflict “max pain.” At some point, Dr. Friend told plaintiff he was a “sinner” and

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that he “needed to repent.” After shocking plaintiff, Dr. Friend provided plaintiff with

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information about a course in Bible study.

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A complaint must be dismissed under Rule 12(b)(6) of the Federal Rules of Civil

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Procedure if the complaint fails to state a claim upon which relief can be granted. When

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considering whether a complaint fails to state a claim upon which relief can be granted, the court

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must accept the allegations as true, Erickson v. Pardus, 551 U.S. 93-94, 2200 (2007), and

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construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416

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U.S. 232, 236 (1974).

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In support of his argument that plaintiff’s amended complaint should be dismissed,

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defendant points to allegations made by plaintiff in his original complaint. However, as a general

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rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55,

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57 (9th Cir. 1967). Furthermore, in deciding a Rule 12(b)(6) motion, the court generally looks

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only to the operative pleading and attachments. Van Buskirk v. Cable News Network, Inc., 284

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F.3d 977, 980 (9th Cir.2002). While a court may consider documents incorporated by reference

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in the operative complaint and can consider any facts judicially noticed under Rule 201 of the

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Federal Rules of Civil Procedure, United States v. Ritchie, 342 F.3d 903, 907–08 (9th Cir.2003),

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neither of those exceptions apply here as plaintiff’s original complaint is not incorporated by

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reference in the amended complaint and defendant does not request that the court judicially notice

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as fact anything referenced in plaintiff’s original complaint.1

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Defendant notes that, in an order issued by the United States District Court for the Central
District of California in Bui v. Meriwest Credit Union, No. 8:13-cv-1025 JVS RNB on November
4, 2013, the Central District at least suggests that a statement made in a superseded pleading may
count as an admission which can be considered when evaluating whether a subsequent pleading
should be dismissed for failure to state a claim under Rule 12(b)(6). At best, the cases relied
upon by the Central District support the proposition that a statement made in a superseded
pleading can amount to an admission of fact which could be used at trial or for purposes of a
motion for summary judgment and do not concern the role of superseded pleadings in evaluating
whether a complaint should be dismissed pursuant to Rule 12(b)(6). See Sicor Ltd. v. Cetus
Corp., 51 F.3d. 848, 859-860. Accordingly, the court declines to depart from the wellestablished parameters for consideration of a Rule 12(b)(6) motion identified above.
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In his motion to dismiss, defendant asserts plaintiff’s Eighth Amendment claim is barred
by 42 U.S.C. § 1997e(e) which reads as follows:

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(e) Limitation on recovery

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No Federal civil action may be brought by a prisoner confined in a
jail, prison, or other correctional facility, for mental or emotional
injury suffered while in custody without a prior showing of physical
injury or the commission of a sexual act (as defined in section 2246
of Title 18).

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As indicated above, plaintiff claims he was subjected to physical injury inflicted by

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defendant in violation of plaintiff’s Eighth Amendment rights. Defendant’s suggestion that the

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physical injury alleged--pain amounting to torture as a result of electric shock—is “di minimis”

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defies any reasonable definition of that term. Accordingly, plaintiff’s remaining claim is not

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precluded by 42 U.S.C. § 1997e(e).

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In accordance with the above, IT IS HEREBY RECOMMENDED that:

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1. Defendant Dr. Friend’s motion to dismiss (ECF No.54) be denied; and

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2. Defendant Dr. Friend be ordered to file an answer.

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These findings and recommendations are submitted to the United States District Judge

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

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

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objections shall be served and filed within fourteen days after service of the objections. The

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: October 6, 2020

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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rodr0655.mtd

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