Dickey v. Strayhorn et al

Filing 36

ORDER: (1) Adopting 35 Report and Recommendation; and (2) Granting Defendant D. Paramo's 22 Motion to Dismiss. The Court (1) adopts Judge Burkhardt's R&R in its entirety, and (2) grants Defendant's Motion to Dismiss as to Warden Paramo, (ECF No. 22 ). The Court dismisses without prejudice Plaintiff's Eighth Amendment cause of action against Defendant Paramo. Signed by Judge Janis L. Sammartino on 3/8/2018. (All non-registered users served via U.S. Mail Service)(mpl)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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GARY DICKEY,

Case No.: 17-CV-546 JLS (JLB)
Plaintiff,

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ORDER: (1) ADOPTING REPORT &
RECOMMENDATION; AND
(2) GRANTING DEFENDANT D.
PARAMO’S MOTION TO DISMISS

v.
D. STRAYHORN and D. PARAMO,
Defendant.

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(ECF Nos. 22, 35)

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Presently before the Court is Magistrate Judge Jill L. Burkhardt’s Report and

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Recommendation, (“R&R,” ECF No. 35), recommending that the Court grant Defendant

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D. Paramo’s Motion to Dismiss, (ECF No. 22). No party filed an objection or a reply to

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Judge Burkhardt’s R&R. For the following reasons, the Court (1) ADOPTS Judge

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Burkhardt’s R&R in its entirety and (2) GRANTS Defendant’s Motion to Dismiss, (ECF

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No. 22).

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17-CV-546 JLS (JLB)

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BACKGROUND

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Judge Burkhardt’s R&R contains a thorough and accurate recitation of the factual

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and procedural histories underlying the instant Motion to Dismiss. (See R&R 2–4.)1 This

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Order incorporates by reference the background as set forth therein.

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LEGAL STANDARD

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Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district

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court’s duties regarding a magistrate judge’s report and recommendation. The district court

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“shall make a de novo determination of those portions of the report . . . to which objection

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is made,” and “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(c); see also

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United States v. Raddatz, 447 U.S. 667, 673–76 (1980); United States v. Remsing, 874 F.2d

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614, 617 (9th Cir. 1989). In the absence of a timely objection, however, “the Court need

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only satisfy itself that there is no clear error on the face of the record in order to accept the

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recommendation.” Fed. R. Civ. P. 72 advisory committee’s note (citing Campbell v. U.S.

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Dist. Court, 510 F.2d 196, 206 (9th Cir. 1974)); see also United States v. Reyna-Tapia, 328

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F.3d 1114, 1121 (9th Cir. 2003) (“[T]he district judge must review the magistrate judge’s

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findings and recommendations de novo if objection is made, but not otherwise.”).

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ANALYSIS

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As discussed, neither Plaintiff nor Defendant filed an objection or a reply to Judge

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Burkhardt’s R&R. Plaintiff’s objections were due February 12, 2018—none were filed.

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(R&R 14.) And, after review of the moving papers and Judge Burkhardt’s R&R, the Court

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finds “that there is no clear error on the face of the record” and thus the Court may “accept

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the recommendation.” Fed. R. Civ. P. 72 advisory committee’s note (citing Campbell, 510

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F.2d at 206). Plaintiff brings claims, under 42 U.S.C. § 1983, against corrections officers

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and the warden at R.J. Donovan Correctional Facility. Defendants’ Motion to Dismiss

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Pin citations to docketed material refer to the CM/ECF numbers electronically stamped at the top of each
page.
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17-CV-546 JLS (JLB)

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only concerns Warden Paramo’s liability. The Court agrees with Judge Burkhardt that

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Plaintiff has failed to allege sufficient facts that demonstrate liability under 42 U.S.C.

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§ 1983 on the part of Warden Paramo. A defendant may be liable as a supervisor “if there

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exists either (1) his or her personal involvement in the constitutional deprivation, or (2) a

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sufficient causal connection between the supervisor’s wrongful conduct and the

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constitutional violation.” Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (quoting

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Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)). Thus, personal, supervisory liability

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“exists even without overt personal participation in the offensive act if supervisory officials

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implement a policy so deficient that the policy itself is a repudiation of constitutional rights

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and is the moving force of the constitutional violation.” Hansen, 885 F.2d at 646 (internal

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quotation marks omitted). Judge Burkhardt’s R&R evaluated Plaintiff’s claims against

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Warden Paramo as to personal participation and policy implementation theories of liability.

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The Court reviews each theory in turn.

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First, Judge Burkhardt concludes that Plaintiff’s Complaint fails to state a claim

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under a personal, vicarious liability theory. (See R&R 10.) The only allegation in

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Plaintiff’s Complaint against Warden Paramo is: “he lets these officers treat us any kind of

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way. They are known for slamming inmates to the ground when their [sic] cuffed up.” (Id.

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at 4 (quoting Compl., ECF No. 1, at 2).) Plaintiff also attached several CDCR Form 22’s2

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to his Complaint, which contained allegations such as: “You [Warden Paramo] know that

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the officers here are slamming people on the ground when we are cuffed up. Then they lie

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and say we attacked them first and thats [sic] why a few of your officers have complaints

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against them. And you are very aware of what your officers are doing too [sic] us. And

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you don’t do nothing about it.” (Id. (alteration in original) (quoting Compl. 16).)

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The Court agrees with Judge Burkhardt that liability under section 1983 is based

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only on the defendant’s individual actions—not vicarious liability. (Id. at 10 (citing

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Ashcroft v. Iqbal, 556 U.S. 662, 676–77 (2009); and Starr, 652 F.3d at 1207).) Plaintiff

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CDCR Form 22 is an Inmate/Parolee Request for Interview, Item or Service. (See Compl. 15.)
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17-CV-546 JLS (JLB)

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has not alleged sufficient facts to demonstrate Warden Paramo’s personal involvement in

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the incidents in his Complaint. The allegations only speak to what Warden Paramo

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supposedly knew about his officers—not that Warden Paramo was personally involved.

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Second, the Court also agrees with Judge Burkhardt that Plaintiff’s deliberate

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indifference theory against Warden Paramo fails because Plaintiff’s Complaint does not

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allege a “sufficient causal connection” between the alleged wrongful conduct and a

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constitutional violation committed by his subordinates. (Id. (citing Farmer v. Brennan,

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511 U.S. 825, 834 (1994); Starr, 652 F.3d at 1205–07).) Plaintiff does not include factual

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allegations that would allow the Court to find Plaintiff’s Complaint states a claim for relief,

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plausible on its face. Instead, Plaintiff’s Complaint and its exhibits only contain bald and

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conclusory allegations—“You know that the officers here are slamming people on the

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ground when cuffed up . . . .you are very aware of what your officers are doing too [sic]

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us,” (Compl. 16). Plaintiff does not include factual allegations that Warden Paramo knew

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of unconstitutional conduct and acquiesced in that conduct. (See R&R 13.) Therefore, the

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Court finds no clear error in Judge Burkhardt’s R&R.

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Accordingly, the Court ADOPTS Judge Burkhardt’s R&R in its entirety and
GRANTS Defendant’s Motion to Dismiss.
CONCLUSION

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For the foregoing reasons, the Court (1) ADOPTS Judge Burkhardt’s R&R in its

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entirety, and (2) GRANTS Defendant’s Motion to Dismiss as to Warden Paramo, (ECF

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No. 22). The Court agrees with Judge Burkhardt’s recommendation to dismiss Plaintiff’s

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Eighth Amendment claims without prejudice. The Complaint’s deficiencies could be cured

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by factual allegations addressing Judge Burkhardt’s findings.

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DISMISSES WITHOUT PREJUDICE Plaintiff’s Eighth Amendment cause of action

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against Defendant Paramo. If Plaintiff wishes to re-allege his claims against Warden

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Paramo, Plaintiff may file an amended complaint within thirty (30) days from the date

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which this Order is electronically filed. Plaintiff is cautioned that should he choose to file

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a First Amended Complaint, it must be complete by itself, comply with Federal Rule of

Therefore, the Court

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17-CV-546 JLS (JLB)

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Civil Procedure 8(a), and that any claim, against any and all defendant not re-alleged will

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be considered waived. See Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012)

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(noting that claims dismissed with leave to amend which are not re-alleged in an amended

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pleading may be “considered waived if not repled”).

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IT IS SO ORDERED.
Dated: March 8, 2018

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17-CV-546 JLS (JLB)