Burghardt v. Franz, et al
Filing
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ORDER DENYING IN PART AND GRANTING WITH LEAVE TO AMEND IN PART 56 DEFENDANTS BRAGGER, FRANZ, AND KELLEY'S MOTION TO DISMISS. Signed by Judge Beth Labson Freeman on 8/5/2019.(blflc2S, COURT STAFF) (Filed on 8/5/2019)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
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DARRYL BURGHARDT,
Plaintiff,
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v.
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J. FRANZ, et al.,
Defendants.
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United States District Court
Northern District of California
Case No. 17-cv-00339-BLF
ORDER DENYING IN PART AND
GRANTING WITH LEAVE TO
AMEND IN PART DEFENDANTS
BRAGGER, FRANZ, AND KELLEY’S
MOTION TO DISMISS
[Re: ECF 56]
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Before the Court is Defendants K. Bragger, J. Franz, and G.A. Kelley’s1 motion to dismiss
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Plaintiff Darryl Burghardt’s First Amended Complaint. Mot., ECF 56. In his complaint, Plaintiff
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claims various civil rights violations against Defendants, who work or worked in Pelican Bay
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State Prison when Plaintiff was an inmate there. For the reasons discussed below and as stated on
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the record at the hearing on August 1, 2019, the motion is DENIED IN PART AND GRANTED
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WITH LEAVE TO AMEND IN PART.
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I.
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BACKGROUND2
In August 2012, Plaintiff was an inmate at Pelican Bay State Prison. First Am. Compl.
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(“FAC”) ¶ 10, ECF 53. On August 19, 2012, Plaintiff began requesting a custody form. Id. On
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August 27, 2012, during the breakfast meal, Plaintiff asked Defendants Franz and Graham
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(correctional officers at the prison) to provide him a custody form or to summon a supervisor.
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Id. ¶ 12. Franz and Graham refused both requests. Id. ¶ 13. As a result of these refusals, and in
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Plaintiff has not been able to successfully serve Defendant R. Graham.
Plaintiff’s well-pled factual allegations are accepted as true for purposes of the motion to
dismiss. See Reese v. BP Exploration (Alaska) Inc., 643 F.3d 681, 690 (9th Cir. 2011).
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an attempt to attract a supervisor’s attention, Plaintiff withheld his food tray. Id. ¶ 14. In
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response, Franz threatened to restrict Plaintiff’s food and access to program. Id. ¶ 15. Graham
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told other inmates housed in Plaintiff’s section that Plaintiff was responsible for the delay in
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program. Id. ¶ 16. Franz filed a rules report violation regarding Plaintiff’s refusal to give up his
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food tray, which resulted in certain restrictions on Plaintiff’s privileges. Id. ¶ 18 & Ex. A at 4–5.
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Later that day, two other officers provided Plaintiff a custody form, and Plaintiff relinquished his
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tray. Id. ¶ 17.
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On August 28, 2012, Plaintiff filed an inmate appeal against Franz and Graham based on
the August 27, 2012 incidents. Id. ¶ 19. When Plaintiff refused to withdraw the grievance, Franz
began harassing Plaintiff. Id. ¶ 20. On September 14, 2012, Franz deliberately smashed
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United States District Court
Northern District of California
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Plaintiff’s hand in the food port during the breakfast pick up. Id. Plaintiff informed Defendant
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Kelley of Franz’s conduct, including his threats to restrict food and his smashing Plaintiff’s hand,
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but Defendant Kelley did not address Franz’s action. Id. ¶¶ 21, 24. On September 16, 2012,
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Plaintiff filed an inmate appeal against Franz based on the September 14, 2012 incident.
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After Franz smashed Plaintiff’s hand in the food port, Plaintiff’s hand was bleeding and in
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pain. Id. ¶ 22 & Ex. C. Plaintiff sought medical attention for his hand. Id. ¶ 22 & Ex. C. That
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same day, Defendant Bragger evaluated Plaintiff. Id. ¶ 23. Plaintiff alleges that Bragger denied
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him appropriate medical treatment by, for example, refusing to refer Plaintiff to an appropriate
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medical specialist for further treatment and refusing to accurately record Plaintiff’s statements in
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the medical report. Id.
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The procedural history that followed these events is long and somewhat winding, but also
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irrelevant to the present motion, so the Court does not recount it here. Suffice it to say that on
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January 23, 2017, Plaintiff filed the instant civil rights action pro se. ECF 1. On January 31,
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2018, Plaintiff was appointed the right to counsel, ECF 34, and on November 13, 2018, Plaintiff’s
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present counsel appeared in this case, ECF 45, 46. On February 22, 2019, pursuant to Court order
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and the parties’ stipulation, Plaintiff filed his First Amended Complaint (“FAC”). ECF 53. In the
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FAC, Plaintiff asserts the following claims: (1) 42 U.S.C. § 1983 – Violation of the First
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Amendment (against Franz, Graham, and Kelley); (2) 42 U.S.C. § 1983 – Violation of the Eighth
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Amendment (against Franz and Kelley); and (3) 42 U.S.C. § 1983 – Violation of the Eighth
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Amendment (against Bragger). See generally id.
On March 8, 2019, Franz, Kelley, and Bragger (collectively, “Defendants”) filed the
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instant motion to dismiss. ECF 56. The Court held a hearing on the motion on August 1, 2019.
II.
LEGAL STANDARD
“A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a
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claim upon which relief can be granted ‘tests the legal sufficiency of a claim.’” Conservation
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Force v. Salazar, 646 F.3d 1240, 1241–42 (9th Cir. 2011) (quoting Navarro v. Block, 250 F.3d
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729, 732 (9th Cir. 2001)). When determining whether a claim has been stated, the Court accepts
as true all well-pled factual allegations and construes them in the light most favorable to the
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United States District Court
Northern District of California
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plaintiff. Reese, 643 F.3d at 690. However, the Court need not “accept as true allegations that
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contradict matters properly subject to judicial notice” or “allegations that are merely conclusory,
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unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536
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F.3d 1049, 1055 (9th Cir. 2008) (internal quotation marks and citations omitted). While a
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complaint need not contain detailed factual allegations, it “must contain sufficient factual matter,
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accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
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U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is
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facially plausible when it “allows the court to draw the reasonable inference that the defendant is
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liable for the misconduct alleged.” Id. On a motion to dismiss, the Court’s review is limited to
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the face of the complaint and matters judicially noticeable. MGIC Indem. Corp. v. Weisman, 803
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F.2d 500, 504 (9th Cir. 1986); N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir.
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1983).
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In deciding whether to grant leave to amend, the Court must consider the factors set forth
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by the Supreme Court in Foman v. Davis, 371 U.S. 178 (1962), and discussed at length by the
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Ninth Circuit in Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048 (9th Cir. 2009). A district
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court ordinarily must grant leave to amend unless one or more of the Foman factors is present: (1)
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undue delay, (2) bad faith or dilatory motive, (3) repeated failure to cure deficiencies by
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amendment, (4) undue prejudice to the opposing party, or (5) futility of amendment. Eminence
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Capital, 316 F.3d at 1052. “[I]t is the consideration of prejudice to the opposing party that carries
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the greatest weight.” Id. However, a strong showing with respect to one of the other factors may
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warrant denial of leave to amend. Id.
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III.
DISCUSSION
Defendants move to dismiss the First Amendment retaliation claim against both Kelley and
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Franz based on the August 2012 incident, both the First Amendment and Eighth Amendment
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claims against Kelley, and the Eighth Amendment claim against Bragger.3
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The Court addresses each argument with respect to each Defendant in turn.
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A.
First Amendment Retaliation Claim Against Franz
Defendants first argue that Plaintiff has failed to state a retaliation claim against Franz
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United States District Court
Northern District of California
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based on the August 27, 2012 incident, in which Franz threatened to withhold food and program
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from Plaintiff. See Mot. at 6–7.
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“Within the prison context, a viable claim of First Amendment retaliation entails five basic
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elements: (1) an assertion that a state actor took some adverse action against an inmate (2) because
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of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of
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his First Amendment rights, and (5) the action did not reasonably advance a legitimate
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correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005); accord Shepard v.
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Quillen, 840 F.3d 686, 688 (9th Cir. 2016).
Defendants argue that Plaintiff fails to allege only elements one and five—that Franz took
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an adverse action and that Franz’s actions did not serve a legitimate correctional goal. As to the
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former, Defendants argue that Plaintiff’s allegation that Franz “threaten[ed] to restrict Plaintiff’s
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food and access to program” is too vague because it does not specifically identify what Franz
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threatened to do, such as what food he planned to restrict. Mot. at 7. As to the correctional goal,
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Defendants argue that Plaintiff fails to demonstrate the restrictions placed on his food were not
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legitimate punishment for his withholding his food tray. See id.
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Defendants also argued that they are immune from damages claims for claims brought against
them in their official capacities, see Mot. at 12 – 13, but they withdrew this argument in reply, see
Reply at 6, ECF 62.
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The Court agrees with Plaintiff that he has sufficiently alleged a claim of retaliation against
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Franz. As an initial matter, Plaintiff alleges that in September Franz smashed Plaintiff’s hand as a
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direct result of Plaintiff’s refusal to withdraw the grievance he had filed in August 2012. See FAC
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¶¶ 19–20. As alleged, this action was both adverse and without a legitimate correctional goal.
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Indeed, Defendants do not argue to the contrary. Thus, Plaintiff’s First Amendment claim against
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Franz survives on this ground alone.
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Moreover, Plaintiff’s allegations with respect to Franz’s August threat to withhold
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Plaintiff’s food in response to Plaintiff’s request for a custody form is similarly sufficiently pled.
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Plaintiff provides sufficient detail to plausibly allege that Franz committed the adverse action of
threating to withhold food or program from Plaintiff. See Shepard, 840 F.3d at 689 (“‘[T]he mere
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United States District Court
Northern District of California
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threat of harm can be an adverse action’ in the retaliation context.” (quoting Brodheim v. Cry, 584
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F.3d 1262, 1270 (9th Cir. 2009)). These allegations are sufficiently detailed to put Defendants on
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notice under Federal Rule of Civil Procedure 8 of the bases of the claim against Franz, namely that
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he acted adversely by threatening to withhold food. See FAC ¶¶ 13–15, 45.
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Plaintiff also plausibly alleges that there was no legitimate correctional goal for Franz’s
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threat. Though Plaintiff refused to return his tray, the FAC alleges that Franz refused the custody
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form before Plaintiff refused to return his tray. See id. ¶ 14. Thus, Franz’s alleged retaliatory
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actions began before Plaintiff’s potential wrongdoing, such that, drawing all inferences for the
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Plaintiff and accepting his allegations as true, Franz’s threat to withhold food was a response to
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the request for the custody form, not a response to the tray being withheld. See Bruce v. Ylst, 351
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F.3d 1283, 1289 (9th Cir. 2003) (citing Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir.1985)).
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Thus, Defendant’s motion to dismiss Plaintiff’s First Amendment claim against Franz is
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DENIED.
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B.
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Defendants next moves to dismiss both the First Amendment and Eighth Amendment
Claims Against Defendant Kelley
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claims against Defendant Kelley, who was Franz’s supervisor at the relevant time, because
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Plaintiff has not alleged that Kelley was sufficiently involved in any deprivation of Plaintiff’s
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constitutional rights. See Mot. at 8–9.
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An official who is a supervisor may be held liable under § 1983 “if there exists either (1)
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his or her personal involvement in the constitutional deprivation, or (2) a sufficient causal
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connection between the supervisor’s wrongful conduct and the constitutional violation.” Starr v.
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Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (internal quotation marks and citation omitted). “The
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requisite causal connection can be established . . . by setting in motion a series of acts by
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others, . . . or by knowingly refus[ing] to terminate a series of acts by others, which [the
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supervisor] knew or reasonably should have known would cause others to inflict a constitutional
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injury.” Id. (internal quotation marks and citation omitted) (alterations in original). “A supervisor
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can be liable in his individual capacity for his own culpable action or inaction in the training,
supervision, or control of his subordinates; for his acquiescence in the constitutional deprivation;
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United States District Court
Northern District of California
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or for conduct that showed a reckless or callous indifference to the rights of others.” Id. (internal
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quotation marks and citation omitted).
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The Court agrees with Defendants that Plaintiff has not stated a claim against Defendant
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Kelley. Plaintiff alleges that he told Kelley about Franz’s actions in September after both of
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Franz’s allegedly retaliatory and harmful actions (withholding food and smashing Plaintiff’s
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hand). FAC ¶ 21. Plaintiff does not allege that Kelley knew about these acts before they
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occurred. Thus, Plaintiff has not alleged that Kelley either set in motion Franz’s acts or
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knowingly refused to terminate them. Moreover, Plaintiff does not allege any facts showing that
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Kelley knew or should have known that Defendant Franz would retaliate against or harm Plaintiff
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in these ways. Nor does Plaintiff allege some failure by Kelley in training, supervision, or control
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of Franz. Finally, though Plaintiff eventually informed Kelley of Franz’s actions after the fact,
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Plaintiff does not allege the Franz performed any other unconstitutional acts after Plaintiff
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informed Kelley of Franz’s previous actions, or that Plaintiff was injured by any acts subsequent
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to his informing Kelley of Franz’s allegedly unconstitutional acts. Thus, Plaintiff has not
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sufficiently alleged that Kelly was involved in any way in any unconstitutional acts by Franz.
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Because Plaintiff may be able to cure these deficiencies with amendment, Plaintiff’s First
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Amendment and Eighth Amendment claims against Kelley are DISMISSED WITH LEAVE TO
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AMEND.
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C.
Eighth Amendment Claim Against Bragger
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Defendants move to dismiss Plaintiff’s Eighth Amendment claim against Defendant
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Bragger because neither of Plaintiff’s theories of deliberate indifference—that Bragger failed to
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accurately record Plaintiff’s statements and failed to refer him to a specialist—are plausibly pled.
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See Mot. at 10–12.
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“A prison official cannot be found liable under the [Eighth Amendment] for denying an
inmate humane conditions of confinement unless the official knows of and disregards an excessive
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risk to inmate health or safety; the official must both be aware of facts from which the inference
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could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.
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In other words, the official must demonstrate a subjective awareness of the risk of harm.” Castro
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United States District Court
Northern District of California
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v. Cty. of Los Angeles, 833 F.3d 1060, 1068 (9th Cir. 2016) (en banc) (internal quotation marks
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and citations omitted).
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Prison officials violate the Eighth Amendment if they are “deliberate[ly] indifferen[t] to [a
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prisoner’s] serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). “A medical need
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is serious if failure to treat it will result in significant injury or the unnecessary and wanton
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infliction of pain.” Peralta v. Dillard, 744 F.3d 1076, 1081 (9th Cir. 2014) (internal quotation
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marks and citation omitted). “Examples of serious medical needs include ‘[t]he existence of an
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injury that a reasonable doctor or patient would find important and worthy of comment or
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treatment; the presence of a medical condition that significantly affects an individual’s daily
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activities; or the existence of chronic and substantial pain.’” Lopez v. Smith, 203 F.3d 1122, 1131
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(9th Cir. 2000) (alteration in original) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059–60 (9th
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Cir. 1992)). “A prison official is deliberately indifferent to that need if he ‘knows of and
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disregards an excessive risk to inmate health.’” Id. (quoting Farmer v. Brennan, 511 U.S. 825,
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837 (1994)). Deliberate indifference “requires more than ordinary lack of due care for the
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prisoner’s interests or safety.” Farmer, 511 U.S. at 835 (internal quotation marks and citation
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omitted).
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The Court agrees with Defendants that Plaintiff fails to plausibly plead a serious medical
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need and that Bragger was deliberately indifferent toward that need. Plaintiff alleges that Franz
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“deliberately smashed Plaintiff’s hand in the food port” and that, as a result, Plaintiff’s hand was
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in pain and bleeding. FAC ¶¶ 20, 22. These facts are not sufficient to demonstrate that Plaintiff
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had a “significant injury” of a type “a reasonable doctor or patient would find important and
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worthy of comment or treatment.” Lopez, 203 F.3d at 1131. On these allegations alone, it is
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possible that Plaintiff’s hand was bleeding due to a mere scratch or that the pain was minimal,
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such that it did not warrant treatment. Thus, it is equally possible on these allegations that
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Plaintiff’s injury was only minor, which is not sufficient to amount to a serious medical need. See,
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e.g., MacFalling v. Nettleton, No. 17-CV-2399-SVW, 2017 WL 3498616, at *7 (C.D. Cal. Aug.
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15, 2017) (finding no serious medical need alleged where too-tight handcuffs caused cuts,
abrasions, and swollen hands, because the plaintiff did not allege that the symptoms persisted);
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United States District Court
Northern District of California
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Telles v. Stanislaus Cty. Sheriff’s Dep’t, No. 1:10-CV-01911 AWI, 2011 WL 2036962, at *4–*5
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(E.D. Cal. May 24, 2011) (finding no serious medical need alleged where plaintiff alleged only
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that he incurred substantial cuts and bruises after other inmates whipped him with chains, but he
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did not allege the extent of his injuries).
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Moreover, Plaintiff has failed to plausibly plead that either of Bragger’s alleged failures
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constitutes deliberate indifference to an excessive risk to Plaintiff’s health, or that the failures
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injured Plaintiff. As to Bragger’s failure to accurately record Plaintiff’s statements, FAC ¶ 23,
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Plaintiff has not alleged how this failure caused him any harm, or that Bragger’s failure to
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properly document Plaintiff’s statements was intentional or demonstrates deliberate indifference to
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Plaintiff’s alleged injury. As alleged, Bragger’s failure demonstrates, at most, a lack of due care.
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See Farmer, 511 U.S. at 835. Likewise, Plaintiff has not plausibly alleged that Bragger’s failure
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to refer Plaintiff to an appropriate medical specialist constitutes deliberate indifference. Even if
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Plaintiff had alleged that his hand injury was sufficiently serious, he has not alleged facts
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demonstrating that he should have been referred to an appropriate medical specialist, and that
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Bragger’s failure to do so demonstrates intentional indifference to an excessive risk to Plaintiff’s
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health. Again, without more, Plaintiff has not alleged anything more than a mere possibility that
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Bragger was deliberately indifferent to his medical needs. Moreover, Plaintiff does not allege any
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harm that the failure to refer may have caused him.
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Thus, Plaintiff fails to plead that Bragger acted with deliberate indifference toward
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Plaintiff. Because Plaintiff may be able to cure these deficiencies with amendment, Plaintiff’s
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Eighth Amendment claim against Bragger is DISMISSED WITH LEAVE TO AMEND.
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IV.
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ORDER
For the foregoing reasons, Defendants’ motion to dismiss the First Amended Complaint is
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DENIED IN PART AND GRANTED WITH LEAVE TO AMEND IN PART. Plaintiff’s
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amended complaint is due on or before 90 days from the date of this Order. Plaintiff should
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file a redlined complaint as an exhibit to his amended complaint. Failure to meet the deadline to
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file an amended complaint or failure to cure the deficiencies identified in this Order will result in a
dismissal of Plaintiff’s claims with prejudice. Leave to amend is limited to the defects addressed
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United States District Court
Northern District of California
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in the Order. Plaintiff may not add new claims or parties absent express leave of Court.
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IT IS SO ORDERED.
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Dated: August 5, 2019
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BETH LABSON FREEMAN
United States District Judge
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