Moore v. Bulatao et al

Filing 30

ORDER by Judge James Donato granting 20 Motion to Dismiss (lrcS, COURT STAFF) (Filed on 7/9/2014) (Additional attachment(s) added on 7/9/2014: # 1 Certificate/Proof of Service) (lrcS, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CHARLES EDWARD MOORE,

Case No. 13-cv-02852-JD

Plaintiff,
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v.

ORDER GRANTING MOTION TO
DISMISS WITH LEAVE TO AMEND

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A. BULATAO, et al.,

Re: Dkt. No. 20

Defendants.

United States District Court
Northern District of California

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Plaintiff, a state prisoner proceeding pro se, has brought a civil rights action under 42

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U.S.C. § 1983. Defendants have filed a motion to dismiss citing failure to state a claim, failure to

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exhaust administrative remedies and qualified immunity. Plaintiff has filed an opposition, and

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defendants have filed a reply.

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I.

BACKGROUND

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This action alleges excessive force and conspiracy against defendant California State

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Correctional Officers Bulatao and Smethers. Plaintiff alleges the defendants were escorting him to

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another part of the prison and “[b]efore I left the cell, I grabbed the 22 appeal form, to show it to

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the Sgt. Both officers know I wanted to talk to the Sgt. When I tried to stop they forced me to the

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floor. When I got up, I could not walk on my left leg. I thought it was a cramp, it hurt that bad. I

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could not walk on it for over 10 days and it was a month before I could walk on it normally. They

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put a bruise on my leg that was 8 1/4” by 5”.” Complaint at 3. Plaintiff also names several other

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defendants and states they conspired to deprive him of his right to sue in federal court.

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II.

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LEGAL STANDARD
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests for the legal

sufficiency of the claims alleged in the complaint. Ileto v. Glock, Inc., 349 F.3d 1191, 1199-1200

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(9th Cir. 2003). All allegations of material fact are taken as true. Erickson v. Pardus, 551 U.S.

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89, 94 (2007). However, legally conclusory statements, not supported by actual factual

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allegations, need not be accepted. See Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) (courts are

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not bound to accept as true “a legal conclusion couched as a factual allegation”). “A plaintiff’s

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obligation to provide the grounds of his entitlement to relief requires more than labels and

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conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations and quotation marks omitted).

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Rather, the allegations in the complaint “must be enough to raise a right to relief above the

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speculative level.” Id.

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A motion to dismiss should be granted if the complaint does not proffer enough facts to

United States District Court
Northern District of California

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state a claim for relief that is plausible on its face. See id. at 558-59, 574. “[W]here the well-

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pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the

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complaint has alleged-but it has not ‘show[n]’-‘that the pleader is entitled to relief.’” Iqbal, 556

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U.S. at 679 (citation omitted).

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

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are subject to scrutiny under the Eighth Amendment. Helling v. McKinney, 509 U.S. 25, 31

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(1993). “After incarceration, only the unnecessary and wanton infliction of pain . . . constitutes

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cruel and unusual punishment forbidden by the Eighth Amendment.” Whitley v. Albers, 475 U.S.

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312, 319 (1986) (ellipsis in original) (internal quotation marks and citation omitted). When prison

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officials stand accused of using excessive force in violation of the Eighth Amendment, the core

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

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discipline, or maliciously and sadistically to cause harm. Hudson v. McMillian, 503 U.S. 1, 6

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(1992); Whitley, 475 U.S. at 320-21. In determining whether the use of force was for the purpose

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of maintaining or restoring discipline, or for the malicious and sadistic purpose of causing harm, a

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court may evaluate the need for application of force, the relationship between that need and the

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amount of force used, the extent of any injury inflicted, the threat reasonably perceived by the

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responsible officials, and any efforts made to temper the severity of a forceful response. Hudson,

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503 U.S. at 7.
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A civil conspiracy is a combination of two or more persons who, by some concerted

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action, intend to accomplish some unlawful objective for the purpose of harming another, which

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results in damage. Gilbrook v. City of Westminster, 177 F.3d 839, 856 (9th Cir. 1999). To prove a

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civil conspiracy, the plaintiff must show that the conspiring parties reached a unity of purpose or

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common design and understanding, or a meeting of the minds, in an unlawful agreement. Id. To

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be liable, each participant in the conspiracy need not know the exact details of the plan, but each

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participant must at least share the common objective of the conspiracy. Id. A defendant’s

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knowledge of and participation in a conspiracy may be inferred from circumstantial evidence and

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from evidence of the defendant’s actions. Id. at 856-57.

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III.

ANALYSIS

United States District Court
Northern District of California

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Plaintiff’s conspiracy allegations are conclusory and vague. Plaintiff states several

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defendants conspired to prevent him from suing, but he fails to adequately describe any concerted

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action by the defendants, a meeting of the minds or even how he was prevented from suing. This

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claim will be dismissed with leave to amend.

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While the allegations in the complaint regarding excessive force set forth the basic

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elements of the claim and provide some factual support, they are also quite conclusory. In the

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opposition to the motion to dismiss plaintiff provides additional information regarding the assault.

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He states he was handcuffed prior to the incident, was not flailing his arms, had simply tried to

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turn to speak to a sergeant, and that defendants did not attempt to temper their response. But these

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alleged facts are in the brief, the Court’s review is limited to the contents of the complaint.

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Allarcom Pay Television v. Gen. Instrument Group, 69 F.3d 381, 385 (9th Cir. 1995). The

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excessive force claim will also be dismissed with leave to amend. In an amended complaint

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plaintiff should provide additional information regarding the incident similar to what he conveyed

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in the opposition brief.

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Exhaustion and Qualified Immunity

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Defendants also assert that plaintiff failed to administratively exhaust the claims and that

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they are entitled to qualified immunity. After defendants filed the motion to dismiss, the Ninth

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Circuit held in Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014), that a motion for summary
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judgment is the appropriate procedural device for pretrial determination of whether administrative

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remedies have been exhausted. Id. at 1168-69. In their reply, defendants acknowledge the change

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in law but note that Albino provided that if exhaustion deficiencies are plain on the face of the

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complaint, a Rule 12 motion is still appropriate. Id. at 1169. The Ninth Circuit also stated that

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such cases will be rare. Id. In the complaint, plaintiff cited to various administrative appeals that

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he filed on the first, second and third levels; thus a motion to dismiss is not the appropriate time to

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address the exhaustion argument. The exhaustion argument may be brought at the summary

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judgment stage.
The Court will defer ruling on the qualified immunity argument because the excessive

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force and conspiracy claims are being dismissed with leave to amend.

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United States District Court
Northern District of California

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IV.

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CONCLUSION
The motion to dismiss (Docket No. 20) is GRANTED, and the complaint is dismissed

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with leave to amend. The amended complaint must be filed within twenty-eight (28) days of the

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date this order is filed and must include the caption and civil case number used in this order and

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the words AMENDED COMPLAINT on the first page. Because an amended complaint

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completely replaces the original complaint, plaintiff must include in it all the claims he wishes to

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present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). He may not incorporate

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material from the original complaint by reference. Failure to amend within the designated time

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will result in the dismissal of this action.

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IT IS SO ORDERED.
Dated: July 9, 2014
______________________________________
JAMES DONATO
United States District Judge

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13-cv-02852-JD-_mtd

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