Opinion
Civil No. 04cv2013 J (AJB).
February 7, 2006
Report and Recommendation re Motion to Dismiss [Doc. No. 30]
The Plaintiff is an inmate at Calipatria State Prison (Calipatria) proceeding pro se. All events referred to in Plaintiff's complaint occurred while Plaintiff was incarcerated at Centinela State Prison (Centinela), where Defendants were employed as corrections officials. Plaintiff contends that he was wrongly accused, found guilty and punished for his involvement in a prison disturbance during which a correctional officer was assaulted by inmates. Plaintiff brings this action under 42 U.S.C. § 1983 alleging various Constitutional violations under the Eighth and Fourteenth Amendments as well as supplemental state law claims. Defendants filed a Motion to Dismiss and Plaintiff has filed an Opposition. For the reasons set forth below, it is recommended that Defendants' Motion to Dismiss be GRANTED as to count 2 with the exception of MTA Leal, and counts 3, 4, 6, 7 and 8, and that Defendants' Motion to Dismiss be DENIED as to counts 3 against MTA Leal and count 5.
Plaintiff's Allegations
Plaintiff alleges that on July 25, 2003, during the early breakfast for education/vocation students in Facility C at Centinela, an incident occurred in which Correctional Officer, Officer Flores, was attacked and injured by an inmate. Compl. at 8. Plaintiff claims that as he and other inmates were exiting the dining hall, Officer Gomez stopped Plaintiff and escorted Plaintiff back into the dining hall. Officer Camarillo said to Officer Gomez, "That's him," referring to the Plaintiff. Id. Plaintiff states that Officer Gomez then brought him to Officer Savala and explained, "He's the one that hit Flores." Id. Plaintiff claims that Sergeant Savala ordered Plaintiff to face the wall and then "slammed [Plaintiff] into the wall" while "pretending" to perform a search and saying, "Oh yeah!" Id. Plaintiff was then handcuffed, and Officer Gomez escorted Plaintiff to the medical clinic and placed him in a holding cell. Compl. at 8. At the clinic, Officer Gomez told other officers that Plaintiff had "sucker punched" Officer Flores. Id.Plaintiff alleges that soon thereafter, Officers Bach and LaCombe entered the clinic and verbally threatened Plaintiff. Compl. at 9. Plaintiff states that he witnessed Officer Bach and other officers verbally threaten an inmate in another holding cell, take the inmate out of the holding cell, and physically assault the inmate. Id. Plaintiff claims that after this incident, Officer Bach further threatened Plaintiff, saying, "You're next mother fucker," "I'm going to fucken (sic) kill you," and "I'm going to break every bone in your body." Id. Plaintiff saw Lieutenant Branham in the area and called to him, with the intention of reporting the assaults on Plaintiff and on the other inmate. Id. Plaintiff claims that Lieutenant Branham heard him calling but walked away. Id. Plaintiff states that while he was calling out to Lieutenant Branham, Officer Bach hit the bars of Plaintiff's cell several times and said, "Shut the fuck up" and reached into the cell and grabbed Plaintiff, ripping Plaintiff's jumpsuit. Compl. at 9-10.
Plaintiff states that Officers Bach and LaCombe left, and Medical Technical Assistant (MTA) Leal entered to examine the Plaintiff. Id. Plaintiff states that he told MTA Leal about the preceding events and asked MTA Leal not to leave him alone. Plaintiff states that MTA Leal responded by saying, "They're not going to do anything." Id.
Officers Bach and LaCombe returned while MTA Leal was conducting the examination. Plaintiff claims that after MTA Leal left, Officer Bach beat Plaintiff while Officer LaCombe watched. Compl. at 10. Plaintiff claims that while he was handcuffed, he was punched in the stomach and then again in the back of the shoulder by Officer Bach, before falling to the ground in the fetal position. Id. Officer Bach verbally challenged the Plaintiff to stand up and "fight like a man." Id. Plaintiff stayed down and called to MTA Leal. Id. Plaintiff claims that Defendant Bach said, "Shut the fuck up," punched the Plaintiff's left arm and kicked him in the left upper chest area. Id.
When MTA Leal returned to complete the examination, Officer Bach placed Plaintiff in leg restraints. Compl. at 11. After MTA Leal finished the examination and left the room, Plaintiff told Bach he intended to file a complaint against Officer Bach, to which Officer Bach replied he intended to write the Plaintiff up and indicate in the report that Plaintiff was "all doped up and instigated the whole shit." Id. Officers Bach and LaCombe left, and MTA Leal again returned to the clinic. When Plaintiff told MTA Leal about what had just happened, MTA Leal responded, "It's because an officer was assaulted." Id.
Plaintiff later reported these incidents and showed Captain Dexter the bruises he allegedly received as a result of these incidents. Compl. at 11. Plaintiff claims that when he showed the bruises to MTA Leal, she responded, "You already had those," and refused to document the bruises. Compl. at 16. Upon Captain Dexter's orders, Plaintiff was interviewed by Sergeant Hernandez, and the interview was videotaped by Officer Gomez. Compl. at 11. Plaintiff showed his bruises to Sergeant Hernandez, but Sergeant Hernandez refused to document them, by videotape or otherwise. Id. Officer Vela took pictures of the Plaintiff but also would not photograph or document the bruises. Compl. at 12. Officer LaCombe then arrived to advise Plaintiff of his Miranda rights. Plaintiff showed his bruises to Officer LaCombe and said, "Look what your buddy Bach did." Officer LaCombe replied, "He has a lot of free time on his hands." Id. Plaintiff showed his bruises to MTA Ochoa, but MTA Ochoa also refused to document them. Id.
Plaintiff was transported from the clinic to the Administrative Segregation Unit (ASU). Plaintiff claims he was not told why he was being transported to the ASU, nor was he given a copy of the ASU Placement Notice, CDC 114-D Form (114-D). Compl. at 12. Plaintiff did not receive his breakfast or snack lunch that day, which were to be provided by MTA Leal. Compl. at 30. Officer Camarillo completed part of the incident report relating to the assault on Officer Flores and completed a rules violation report concerning Plaintiff's involvement in the incident. Id. Sergeant Savala completed a Notice of Unusual Incident report. Compl. at 30-31. Lieutenant Branham completed part of the incident report relating to the assault on Officer Flores, as well as part of the 144-D. Compl. at 31.
When the Plaintiff asked Sergeant Valenzuela why he had been placed in ASU, Sergeant Valenzuela told the Plaintiff it was because of Plaintiff's involvement in the incident in the dining hall and the assault on Officer Flores. Plaintiff further alleges that between July 25, 2003 and August 29, 2003, he was denied allowable personal hygiene products. Compl. at 24-27.
On July 28, 2003, Plaintiff was escorted to see Captain Dexter for a Review of Segregation Order, CDC 144-D Form, Part B. Compl. at 22. Captain Dexter showed Plaintiff the 114-D that was authored by Lieutenant Branham, indicating that Plaintiff was placed in ASU for "assault on staff." Id. Plaintiff claims the 114-D was found "false" and that Captain Dexter told Plaintiff that Plaintiff would be released from the ASU after appearing before the Institutional Classification Committee (ICC). Id. Plaintiff was then escorted back to Plaintiff's cell, where Plaintiff signed the 114-D. Id. However, Plaintiff was not given a copy of the 114-D. Id.
The Plaintiff appeared before the ICC on July 31, 2003. Compl. at 22. The Plaintiff was informed by the committee that a new 114-D had been issued and Plaintiff would continue to be held in ASU. Id. The new 144-D, authored by Correctional Counselor Johnson, charged Plaintiff with "inciting" the incident in the dining hall on July 25, 2003. Id. Plaintiff submitted a request on August 10, 2003 for a copy of the first 144-D, and Plaintiff received the copy two days later. Id.
On August 29, 2003, Plaintiff appeared before Lieutenant Daubenspeck for a hearing on the rules violation report issued to Plaintiff. Compl. at 33. At the hearing, Plaintiff was found guilty of inciting the incident on July 25, 2003.
On September 25, 2003, Plaintiff again appeared before the ICC. Compl. at 33-34. Plaintiff was again found to have incited the incident on July 25, 2003, and it was recommended that Plaintiff be transferred to a Security Housing Unit (SHU) at Calipatria for a term of four months. Compl. at 34. Also during the ICC meeting on September 25, 2003, Counselor Johnson conducted Plaintiff's Annual Review and raised Plaintiff's classification score from 52 points to 58 points for receiving the Rules Violation Report and for the charge of Inciting. On September 29, 2003, Counselor Johnson prepared another 144-D confirming that Plaintiff would be held in ASU for security reasons until Plaintiff's transfer. Id. The actions taken during the September 25, 2003 ICC meeting were confirmed when Plaintiff appeared before another ICC on October 2, 2003. Compl. at 35-36.
Plaintiff's Claims
Plaintiff claims that Officers Savala and Bach used excessive force against the Plaintiff in violation of the Eighth Amendment (Compl. at 12) and that Officer LaCombe, Lieutenant Branham, and MTA Leal failed to protect Plaintiff from the alleged excessive force (Compl. at 17). Plaintiff also claims that Captain Dexter, Associate Warden Salazar and Warden Giurbino "failed to take disciplinary or other action to curb the known pattern of physical abuse of inmates by Defendant Bach." Compl. at 18.
Plaintiff alleges that Lieutenant Branham and Correctional Counselor Johnson violated Plaintiff's due process rights by failing to provide Plaintiff with copies of the 114-Ds in a timely manner, as set forth in the California Code of Regulations. Plaintiff claims his due process rights were further violated by his placement and retention in the ASU and by not being given advance notice of ICC hearings. Compl. at 37-39. Plaintiff also contends that he was subjected to cruel and unusual punishment by being deprived of personal hygiene products for thirty days while in ASU. Compl. at 27.
Plaintiff also asserts state law claims of common law assault, common law battery and violations of Cal. Penal Code §§ 149, 240 and 242 against Officers Savala and Bach. Compl. at 19-20. Plaintiff further claims that Lieutenant Branham, Captain Dexter, Associate Warden Salazar and Warden Giurbino are subject to "supervisory liability" for the actions of Officers Savala and Bach. Compl. at 20.
Plaintiff alleges that he was a victim of retaliation because he was deprived of his breakfast and snack lunch in ASU on July 25, 2003, and because of the various incident and rules violation reports falsely accusing Plaintiff of assaulting staff and inciting the incident in the dining hall on July 25, 2003. Compl. 30-36.
Plaintiff alleges that each of the acts and omissions by Defendants also constitutes negligence under state law. Compl. 43-45
Legal Standard
I. Standard of ReviewA motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) tests the legal sufficiency of the claims in the complaint. A claim can only be dismissed if it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Hishon v. King Spaulding, 467 U.S. 69, 73 (1984). The court must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them, and must construe the complaint in the light most favorable to the plaintiff. N.L. Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986); Parks School of Business, Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). The court looks not at whether the plaintiff will "ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhoades, 416 U.S. 232, 236 (1974).
Where a plaintiff appears in propria persona in a civil rights case, the court must construe the pleadings liberally and afford the plaintiff any benefit of the doubt. Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988). The rule of liberal construction is "particularly important in civil rights cases." Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). In giving liberal interpretation to a pro se civil rights complaint, however, the court may not "supply essential elements of the claim that were not initially pled." Ivey v. Bd. of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). "Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss." Id, citing Johnson v. Wells, 566 F.2d 1016 (5th Cir. 1978); Kennedy v. H M Landing, Inc., 529 F.2d 987 (9th Cir. 1976); see also Keker v. Procunier, 398 F. Supp. 756, 766 (E.D.Cal. 1975).
Discussion
I. Count 2 — Failure to Protect Claims A. Failure to Protect — Eighth Amendment Claim
Section 1983 provides, in pertinent part, that "(e)very person who, under color of any statute of any state . . ., subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured. . . ." 42 U.S.C. § 1983. A person "subjects" another to the deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative act, participates in another's affirmative acts, or omits to perform an act which he is legally required to do that causes the deprivation of a constitutional right. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) ( citing Sims v. Adams, 537 F.2d 829 (5th Cir. 1976)). Moreover, personal participation is not the only predicate for section 1983 liability. Anyone who "causes" any citizen to be subjected to a constitutional deprivation is also liable. Johnson v. Duffy, 588 F.2d at 743. The requisite causal connection can be established not only by some kind of direct personal participation in the deprivation, but also by setting in motion a series of acts by others, which the actor knows or reasonably should know would cause others to inflict the constitutional injury. Id. at 743-44; Cf. Beverly v. Morris, 470 F.2d 1356 (5th Cir. 1972). If state law imposes liability upon a public official for the acts of his subordinates, vicarious liability can also be imposed upon him under section 1983. Johnson v. Duffy, 588 F.2d at 743 (9th Cir. 1978) ( citing Hesselgesser v. Reilly, 440 F.2d 901 (9th Cir. 1971).
"[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 risk to inmate health or safety; the official must be both aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Id. at 837-38; Wilson, 501 U.S. at 302-303. Thus, the test for "deliberate indifference" contains both objective and subjective components. The prisoner must show that the official "knew of the risk and that the official inferred that substantial harm might result from the risk." Wallis v. Baldwin, 70 F.3d 1074, 1077 (9th Cir. 1995).
Thus, a prisoner can state a section 1983 claim against prison personnel under the Eighth amendment by establishing that the prison personnel acted with "deliberate indifference" in creating the condition that violates the Eighth Amendment. See Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988); Berg, 794 F.2d at 459. The "deliberate indifference" standard requires proving some degree of "individual culpability," but does not require proof of an express intent to punish. Id., citing Haygood v. Younger, 769 F.2d 1350, 1354-55 (9th Cir. 1985) (en banc), cert. denied, 478 U.S. 1020 (1986). Under an Eighth Amendment failure to protect claim, "[w]hether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence, . . . and a fact-finder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious." Farmer, 511 U.S. at 840-41; Allen v. Sakai, 48 F.3d 1082, 1087 (9th Cir. 1994).
B. "Failure to Protect" as a Due Process Claim Under the Fourteenth Amendment
Prison officials must "take reasonable measures to guarantee the safety of . . . inmates." Hudson v. Palmer, 468 U.S. 517, 526-27 (1984). A convicted prisoner's liberty interests are protected by the due process clause and the state's failure to protect such persons against assaults results in a constitutional violation when that failure constitutes deliberate indifference to their safety. Daniels v. Williams, 474 U.S. 327, 331 (1986); Redman v. County of San Diego, 942 F.2d 1435, 1440 n. 7 (9th Cir. 1991), cert. denied, 502 U.S. 1074 (1992). The Fourteenth Amendment, like the Eighth Amendment, "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, 356 U.S. 86, 101 (1958). To this end, the due process clause is not violated so long as the government conduct does not amount to "an unnecessary and wanton infliction of pain" or is not "`repugnant to the conscience of mankind.'" Redman, 942 F.2d at 1441, quoting Estelle v. Gamble, 429 U.S. 97, 105-06 (1976).
Unlike the "deliberate indifference" required under Farmer's Eighth Amendment analysis, however, Ninth Circuit law does not require officials to have a subjective awareness of the risk of harm in order to be deemed "recklessly" or "deliberately" indifferent for purposes of claiming a substantive due process violation. Neely v. Fienstein, 50 F.3d 1502, 1508 (9th Cir. 1995); see, e.g., Wood v. Ostrander, 851 F.2d 1212, 1214 (9th Cir. 1988), cert. denied, 498 U.S. 938 (1990); Fargo v. City of San Juan Bautista, 857 F.2d 638, 640 (9th Cir. 1988). However, "if . . . officials know or should know of [an inmate's] particular vulnerability, then the Fourteenth Amendment imposes on them an obligation not to act with reckless indifference to that vulnerability." Redman, 942 F.2d at 1443; Colburn v. Upper Darby Township, 838 F.2d 663, 669 (3d Cir. 1988), cert. denied, 489 U.S. 1065 (1989).
C. Supervisory Liability
Supervisors can be held liable for: 1) their own culpable action or inaction in the training, supervision, or control of subordinates; 2) their acquiescence in the constitutional deprivation of which a complaint is made; or 3) for conduct that shows a reckless or callous indifference to the rights of others. See Watkins v. City of Oakland, Cal., 145 F.3d 1087 (9th Cir. 1998); Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991); Motley v. Parks, 432 F.3d 1072, 1081 (9th Cir. 2005); Menotti v. City of Seattle, 409 F.3d 1113, 1149 (9th Cir. 2005).
In determining whether a supervisor of a public employee may be held liable for the employee's conduct which resulted in a constitutional deprivation, the Court must determine whether the supervisor had (1) personal involvement in the alleged constitutional deprivation, or (2) a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation. Jones v. Williams, 297 F.3d 930 (9th Cir. 2002); Jeffers v. Gomez, 267 F.3d 895 (9th Cir. 2001); Hansen v. Black, 885 F.2d 642, (9th Cir. 1989); Graves v. City of Coeur D'Alene, 339 F.3d 828 (9th Cir. 2003) (supervising officers can be held liable under § 1983 only if they play an affirmative part in the alleged deprivation of constitutional rights, by setting in motion a series of acts by others which supervisor knew, or reasonably should have known, would cause others to inflict the constitutional injury); Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675 (9th Cir. 1984) (A supervisor cannot be held personally liable under Section 1983 for the constitutional deprivation caused by his subordinates, absent his participation or direction in the deprivation.). Under § 1983, liability cannot be imposed on supervising officers under respondeat superior theory of liability. Graves v. City of Coeur D'Alene, 339 F.3d 828 (9th Cir. 2003). Furthermore, under § 1983, supervisory officials are generally not liable for actions of subordinates under any theory of vicarious liability. See Jeffers v. Gomez, 267 F.3d 895 (9th Cir. 2001); Hansen v. Black, 885 F.2d 642 (9th Cir. 1989); Fed. Rules Civ. Proc. Rule 56(c), 28 U.S.C.A.; 42 U.S.C.A. § 1983.
D. Discussion
Plaintiff alleges in Count 2 that Officer Gomez failed to protect him from Officer Savala in the dining hall and that Lieutenant Branham and MTA Leal failed to protect him in the medical clinic from Officer Bach, all in violation of Plaintiff's Eighth Amendment rights. Compl. at 17. With regard to Plaintiff's allegations that Officer Gomez failed to protect him from Officer Savala, upon review of the facts alleged by Plaintiff in his complaint, the Court finds Plaintiff failed to establish that there was any significant risk to his health or safety caused by Officer Savala, and as such, no failure by Officer Gomez to protect. In his complaint, Plaintiff states that Officer Savala ordered him to face the wall, grabbed Plaintiff by the neck and left wrist forcing Plaintiff's right arm behind his back as he "slammed" Plaintiff against the wall and "pretended" to perform a search, after which Officer Gomez escorted him to Facility C, medical clinic. Compl. at 8. These facts are indicative of the custody and search of Plaintiff after the attack on Officer Flores, and in no way indicate that there was any significant risk to Plaintiff's health or safety. Furthermore, Plaintiff alleges no injuries as a result of this interaction, only that his safety was jeopardized by Officer Gomez's identification of Plaintiff as the inmate who attacked Officer Flores. As such, Plaintiff's allegation is facially insufficient as he has failed to demonstrate how or even if this identification created a significant risk to his health or safety.
Plaintiff also alleges in Count 2 that Lieutenant Branham and MTA Leal failed to protect him in the medical clinic from Officer Bach. In his complaint, Plaintiff states that while he was in "holding cage #4" he called out to Lieutenant Branham to get him to come over so that he could report threats that he claims Officer Bach made to him. Compl. at 9. Plaintiff claims Lieutenant Branham looked in his direction, but Officer Bach hit the holding cage with his palm and said "shut the fuck up" and, thereafter, Lieutenant Branham walked away. Id. Plaintiff claims that Lieutenant Branham's failure to confront Officer Bach as to why Officer Bach was there or what was going on constitutes a failure to protect Plaintiff. Id. Again, Plaintiff fails to alleges facts that demonstrate that Lieutenant Branham knew or should have known that Plaintiff faced a significant risk to his health or safety. Plaintiff claims only that he called out to Lieutenant Branham, apparently by name, to get his attention so that he would come over to Plaintiff's holding cell. However, this in no way alerted Lieutenant Branham to any of Plaintiff's concerns or the alleged threats by Officer Bach. As such, even if the Court accepts as true all material allegations in the complaint with regard to the Defendants, as well as reasonable inferences to be drawn from them in the light most favorable to the Plaintiff, Plaintiff's allegation is facially insufficient. The facts as alleged by Plaintiff fail to demonstrate that Lieutenant Branham was aware of any substantial risk or that he inferred that substantial harm might result from such risk.
With regard MTA Leal, Plaintiff claims that he informed MTA Leal that Officer Bach had verbally threatened him and reached in and pulled him to the front of the cell door with sufficient force to rip his prison jumpsuit and then requested that MTA Leal not leave him alone. Compl. at 10. Plaintiff claims that MTA Leal then said that "[t]hey're not going to do anything." Id. Plaintiff alleges that MTA Leal had a conversation with Officer Bach while conducting the medical exam and then left the area. Plaintiff alleges that Officer Bach then beat him as Officer La Combe looked on. Id. After Officers Bach and La Combe left, MTA Leal returned to complete the medical exam. Plaintiff states that he told MTA Leal what had transpired in her absence and she said "[i]t's because and officer was assaulted." Id.
Since the court must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them, and must construe the complaint in the light most favorable to the plaintiff, the Court finds that Plaintiff has alleged facts facially sufficient to support his failure to protect claim against Defendant MTA Leal which survives Defendants Motion to Dismiss. The fact that Plaintiff claims that his prison jumpsuit was ripped from Officer Bach's pulling him to the front of the holding cell, that Plaintiff informed MTA Leal of Officer Bach's threats and requested that MTA Leal not leave Plaintiff alone with Officer Bach are facially sufficient to survive Defendants' motion. However, Plaintiff has not demonstrated facts sufficient to support supervisory liability on behalf of MTA Leal, as Plaintiff has not alleged that MTA Leal in any way Officer Bach's supervisor.
Plaintiff further alleges in Count 2 that Captain Dexter, Associate Warden Salazar and Warden Giurbino are subject to supervisory liability and vicarious liability based upon the actions of Officer Bach. In his complaint, Plaintiff states that Captain Dexter, Associate Warden Salazar and Warden Giurbino were all made aware via the inmate appeal process (CDC Form 602) of Officer Bach's "constant and repeated use of excessive force against inmates while inmates were in restraints" as these Defendants were responsible for reviewing inmate appeals (CDC Form 602). Plaintiff's Opposition at 10-11. Plaintiff also contends that Captain Dexter, Associate Warden Salazar and Warden Giurbino were aware of Officer Bach's "constant use of force on inmates through verbal communications, 602's, and civil suits, yet failed to provide adequate supervision. Plaintiff's Opposition at 11. However, the facts provided in the complaint only allude to information provided to Captain Dexter, Associate Warden Salazar and Warden Giurbino after the incident on July 23, 2005. Compl. at 11 (bruises shown to Captain Dexter); Plaintiff's Opposition at 10-11. Nothing in the complaint states fact sufficient to demonstrate that Captain Dexter, Associate Warden Salazar and Warden Giurbino were made aware or somehow put on notice of any misconduct by Officer Bach prior to the alleged incident on July 23, 2005. As such, Plaintiff's allegations are facially insufficient as he has not demonstrated that Captain Dexter, Associate Warden Salazar and Warden Giurbino were aware of any significant risk to Plaintiff's health or safety from Officer Bach and therefore, Defendants Captain Dexter, Associate Warden Salazar and Warden Giurbino cannot be held liable for failure to protect Plaintiff from Office Bach's actions.
Defendants', with the exception of Officer La Combe, contend that Plaintiff fails to state facts sufficient to support an Eighth Amendment failure to protect claim against any of the remaining Defendants. Defendants Motion to Dismiss at 9. The Court, with the exception of claims against MTA Leal, agrees. 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 risk to inmate health or safety; the official must be both aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference. " Id. at 837-38 ( emphasis added); Wilson, 501 U.S. at 302-303. Plaintiff has failed to demonstrate that any of these Defendants knew of and disregarded an excessive risk to his health or safety, as the Complaint clearly shows that each of these Defendants, with the exception of MTA Leal, only became aware of the alleged assault on Plaintiff by Officer Bach after the incident had allegedly already occurred. Compl. at 8-11. As such, even if the Court accepts as true all material allegations in the complaint with regard to the Defendants with the exception of MTA Leal, as well as reasonable inferences to be drawn from them in the light most favorable to the Plaintiff, these facts fail to demonstrate that Defendants violated Plaintiff's Constitutional rights under either the Eighth or Fourteenth Amendments. As such, the Court recommends the Motion to Dismiss be GRANTED as to count 2 against all Defendants except MTA Leal and Officer La Combe.
Officer La Combe denies any wrongdoing, but does not challenge in Defendants' Motion to Dismiss Plaintiff's pleading of an Eighth Amendment failure to protect claim against him. Defendants Motion to Dismiss at 9.
II. Count 3 — Respondeat Superior Liability Under California Tort Claims Act
Plaintiff alleges in count 3 that Defendants' Lieutenant Branham, Captain Dexter, Associate Warden Salazar and Warden Giurbino are subject to supervisory liability for the actions of Officers Savala and Bach under the California Tort Claims Act. Complaint at 20. Defendants contend that there is no supervisor vicarious liability under the California Tort Claims Act. In support of their contention, Defendants cite California Government Code section 820.8 which states as follows:
Except as otherwise provided by statute, a public employee is not liable for an injury caused by the act or omission of another person. Nothing in this section exonerates a public employee from liability for injury proximately caused by his own negligent or wrongful act or omission. West's Ann. Cal. Gov. Code § 820.8
Defendants further cite the Legislative comments to § 820.8 which state that "[t]he section nullifies the holdings of a few old cases that some public officers are vicariously liable for the torts of their subordinates." Leg. Comm. Comment to Cal. Gov. Code § 820.8.
In this, as in any type of case, the liability of the State and its supervisory employees is governed primarily by the California Tort Claims Act. Cal. Gov. Code, § 810, et seq. Government Code section 815 provides: "Except as otherwise provided by statute: (a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person." The legislative committee comment to that section states in part: "This section abolishes all common law or judicially declared forms of liability for public entities, . . . public entities may be held liable only if a statute . . . is found declaring them to be liable. . . . The practical effect of this section is to eliminate any common law governmental liability for damages arising out of torts. . . ."
Although a public officer or employee may be liable for injury proximately caused by his or her own negligent or wrongful act or omission, the officer or employee is not liable for the act or omission of another person. Cal. Gov. Code § 820.8. Furthermore, no city or county officer whose sole compensation by virtue of his or her office is a fixed salary is personally liable for negligent acts or omissions of his or her deputies where the appointment or qualification of the deputy has been approved by the board of supervisors, the local governing body, or a civil service commission, unless the officer was negligent in selecting or supervising, or in failing to suspend or discharge the deputy. Cal. Gov. Code § 1504(a).
Generally, a peace officer is not responsible for the acts or omissions of subordinates properly employed under him or her, if the subordinates are not in his or her private service but are themselves servants of the government, unless he or she directed the acts to be done or personally cooperated in them. Michel v. Smith, 188 Cal. 199 (1922) (chief of police not liable); Sarafini v. City and County of San Francisco, 143 Cal. App.2d 570 (1956) (police lieutenant not liable). A superior police officer having other police officers under his or her jurisdiction is not personally responsible for their actions unless there is a statute imposing liability, he or she has directed their acts to be done, he or she has personally cooperated in the offending act, or he or she has been negligent in appointing or in failing to discharge a known unfit person. Each police officer is, like his or her superior, a public servant. Fernelius v. Pierce, 22 Cal.2d 226 (1943); Placer County v. Aetna Cas. Sur. Co., 50 Cal.2d 182 (1958).
However, the facts provided by Plaintiff in the complaint only allude to information provided to Lieutenant Branham, Captain Dexter, Associate Warden Salazar and Warden Giurbino after the incident on July 23, 2005. Compl. at 11; Plaintiff's Opposition at 10-11. Nothing in the complaint states fact sufficient to demonstrate that Lieutenant Branham, Captain Dexter, Associate Warden Salazar and Warden Giurbino were made aware or somehow put on notice of any misconduct by Officer Bach prior to the alleged misconduct on July 23, 2005. As such, Plaintiff's allegations are facially insufficient as he has not demonstrated that Lieutenant Branham, Captain Dexter, Associate Warden Salazar and Warden Giurbino directed or cooperated in the misconduct, were negligent in appointing Officer Bach or retaining him, as no prior knowledge is the misconduct is alleged in the complaint or Opposition. Therefore, Defendants Lieutenant Branham, Captain Dexter, Associate Warden Salazar and Warden Giurbino cannot be held liable under the California Tort Claims Act for Office Bach's actions. As such the Court recommends that Defendants' Motion to Dismiss Plaintiff's state law claims under the California Tort Claims Act of count 3 be GRANTED.
III. Plaintiff's State Law Claims Under Counts 3 and 8
The Tort Claims Act provides that, with certain exceptions, ". . . no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented . . . until a written claim therefor has been presented to the public entity. . . ." Cal. Gov. Code § 945.4. "[S]ubmission of a claim to a public entity pursuant to section 900 et seq. `is a condition precedent to a tort action and the failure to present the claim bars the action.'" Phillips v. Desert Hospital Dist., 46 Cal.3d 699, 708 (1989) ( quoting Lutz v. Tri-City Hospital, 179 Cal. App.3d 807, 812 (1986)). California Courts have consistently held that failure to allege facts demonstrating compliance or excusing compliance with the claim presentation requirement in a complaint, subjects the complaint to a general demurrer for failure to state facts sufficient to constitute a cause of action, because the claim presentation requirement is a required element of any cause of action against a public entity. See eg., Del Real v. City of Riverside, 95 Cal. App.4th 761, 767 (2002).
Defendants' move to dismiss Plaintiff's state law claims under counts 3 and 8 of the complaint on the grounds that Plaintiff has failed to satisfy the claim presentation requirement set forth in State of California v. Superior Court of Kings County (Bodde). 32 Cal.4th 1234, 1240 (Cal. 2004). Upon review of Plaintiff's complaint, the Court sees nothing that would satisfy the claim presentation requirement, however, the Court's inquiry does not end there. In his Opposition, Plaintiff alleges facts which tend to indicate substantial compliance with the claim presentation requirement. Del Real v. City of Riverside, 95 Cal. App.4th 761, 767 (2002) (citing Wood v. Riverside General Hospital, supra, 25 Cal. App.4th 1113, 1118 (1994) (Substantial compliance contemplates that there is at least some compliance with all of the statutory requirements.).
In his Opposition, Plaintiff states that the allegations in his complaint with regard to counts 3 and 8 began on July 25, 2003, and that count 8 continued after July 25, 2003. Opposition at 12. Plaintiff states that on February 10, 2004, he received a letter from the Board of Control informing him that they had received his claim on January 28, 2004 and that his claim would be acted upon at a hearing set for March 19, 2004. Id. at 13. Plaintiff states that his claim was stamped received on January 30, 2004 and filed as G543732, which Plaintiff contends is an indication that the claim was timely submitted. Id. Plaintiff alleges that he received a letter dated April 9, 2004, from the Board of Control stating "The Victim Compensation and Government Claims Board rejected your claim at its hearing on March 19, 2004." Id. Plaintiff states that he also complied with the requirements of Cal. Gov. Code § 945.6, as he filed his complaint with the U.S. District Court on October 6, 2004, which is within six months of receiving notice from the Board of Control that his claim had been denied. Id.
"The principle [sic] purposes of the claims statute are to give notice to the municipality in order that it be afforded a timely opportunity to investigate the claim and determine the facts; and to avoid unnecessary lawsuits by giving the municipality the opportunity to settle meritorious claims without going through an avoidable trial." Lacy v. City of Monrovia, 44 Cal. App.3d 152, 155 (1974); accord, San Diego Unified Port Dist. v. Superior Court, 197 Cal. App.3d 843, 847 (1988). Therefore, a Plaintiff may satisfy the claim presentation requirement by demonstrating substantial compliance with the various procedural steps or requirements.
Section 910 specifies the required contents of the claim as follows:
A claim shall be presented by the claimant or by a person acting on his or her behalf and shall show all of the following:
(a) The name and post office address of the claimant.
(b) The post office address to which the person presenting the claim desires notices to be sent.
(c) The date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted.
(d) A general description of the indebtedness, obligation, injury, damage or loss incurred so far as it may be known at the time of presentation of the claim.
(e) The name or names of the public employee or employees causing the injury, damage, or loss, if known.
(f) The amount claimed if it totals less than ten thousand dollars ($10,000) as of the date of presentation of the claim, including the estimated amount of any prospective injury, damage, or loss, insofar as it may be known at the time of the presentation of the claim, together with the basis of computation of the amount claimed. If the amount claimed exceeds ten thousand dollars ($10,000), no dollar amount shall be included in the claim. However, it shall indicate whether the claim would be a limited civil case.
Section 910.2 requires that the claim "be signed by the claimant or by some person on his behalf."
Section 915 specifies that the claim must either be delivered or mailed "to the clerk, secretary, or auditor" of the local public entity.
Based upon the limited information provided by Plaintiff in his Opposition, it appears that the Plaintiff has substantially complied with the requirements of the Tort Claims Act. However, without being able to review the actual documents referred to in Plaintiff's Opposition, it is impossible for the Court to definitively address all of the specific claim requirements to find substantial compliance. Furthermore, Plaintiff does not claim substantial compliance or the claim presentation requirement anywhere in his complaint. As such, the Court recommends that Defendants' Motion to Dismiss Plaintiff's state law claims under counts 3 and 8 of the complaint on the grounds that Plaintiff has failed to satisfy the claim presentation requirement be GRANTED WITH LEAVE TO AMEND. IV. Counts 4, 6, and 7 A. Challenges to Internal Prison Proceedings
Plaintiff alleges in counts 4, 6 and 7 that he was falsely accused of inciting the incident on July 25, 2003, the disciplinary proceedings and hearing were unfair and improperly conducted by Defendants because he was not given sufficient notice of such hearings, which combined served to improperly "lengthen" Plaintiff's prison sentence. Defendants point out that these claims, if established, would effect the duration of Plaintiff confinement and as such may not be raised under 42 U.S.C. § 1983. The Court agrees.
The Supreme Court has focused on the need to ensure that state prisoners use only habeas corpus, or similar state remedies, when they seek to invalidate the duration of their confinement, whether directly through an injunction compelling speedier release or indirectly through a judicial determination that necessarily implies the unlawfulness of the State's custody. Thus, Preiser found an implied exception to § 1983's coverage where the claim seeks, not where it simply "relates to", core habeas corpus relief, i.e., where a state prisoner requests present or future release. Preiser v. Rodriguez, 411 U.S. 475 (1973). Wolff makes clear that § 1983 remains available for procedural challenges where success in the action would not necessarily spell immediate or speedier release for the prisoner. Wolff v. McDonnell, 418 U.S. 539 (1974). Heck specifies that a prisoner cannot use § 1983 to obtain damages where success would necessarily imply the unlawfulness of a not previously invalidated conviction or sentence. Heck v. Humphrey, 512 U.S. 477 (1994). And Balisok, like Wolf, demonstrates that habeas remedies do not displace § 1983 actions where success in the civil rights suit would not necessarily vitiate the legality of not previously invalidated state confinement. Edwards v. Balisok, 520 U.S. 641(1997). These cases, taken together, indicate that a state prisoner's § 1983 action is barred (absent prior invalidation) — no matter the relief sought (damages or equitable relief), no matter the target of the prisoner's suit (state conduct leading to conviction or internal prison proceedings) — if success in that action would necessarily demonstrate the invalidity of confinement or its duration. Wilkinson v. Dotson, 125 S.Ct. 1242 (2005).
Applying these principles to the present case, the Court finds Plaintiff's claims in counts 4, 6 and 7 are more cognizable under a writ of habeas corpus as Plaintiff seeks relief that will render invalid internal prison polices and proceedings. See Preiser v. Rodriguez, 411 U.S. 475, 487, 489 (1973); Heck v. Humphrey, 512 U.S. 477 (1984). As such, if Plaintiff were to succeed on these claims and obtain a favorable judgement, it would "necessarily imply the invalidity of [his] conviction[s] or sentence[s]." Heck v. Humphrey, 512 U.S. at 487. Since Plaintiff is attacking not only the loss of good time credits, but also the constitutionality of prison disciplinary proceedings, he must do so through habeas corpus. See Preiser v. Rodriguez, 411 U.S. 475, 487, 489 (1973) (holding that a state prisoner attacking the constitutionality of prison disciplinary proceedings that lead to loss of good-time credits must do so through habeas corpus); Heck v. Humphrey, 512 U.S. 477 (1984) (Prisoner claiming prison officials caused his conviction by conducting an improper investigation and destroying evidence may not bring an action under 42 U.S.C. § 1983, unless and until the underlying conviction or sentence has first been overturned, invalidated, or expunged) Wilkinson v. Dotson, 544 U.S. 74, 125 S. Ct. 1242, 1245 (2005) ("a state prisoner's § 1983 action is barred (absent prior invalidation) — no matter the relief sought (damages or equitable relief), no matter the target of the prisoner's suit (state conduct leading to conviction or internal prison proceedings) — if success in that action would necessarily demonstrate the invalidity of confinement or its duration."). As such, it is recommended that Defendants Motion to Dismiss be GRANTED as to Plaintiff's claims in counts 4, 6 and 7 of the complaint that challenge such internal prison proceedings.
B. No Liberty Interest in General Population and Goodtime/Worktime Credits
Plaintiff also alleges in counts 4, 6 and 7 that Defendant's acts and omissions resulted in his placement in segregated housing. Plaintiff contends that he has a liberty interest in general housing and that his term in segregated housing will lengthen his sentence and cause him to loose goodtime credits. Complaint at 39-41. Defendants contend, however, that Plaintiff has no liberty interest in general population housing because segregated housing does not constitute "a dramatic departure from the basic conditions of his confinement." Defendants' Motion at 16. Defendants also argue that Plaintiff has no liberty interest with regard to the term in segregated housing potentially affecting the length of his sentence or causing him to lose goodtime credits. Defendants' Motion at 15. The Court agrees.
Liberty interests which are protected by the Due Process Clause will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force. See Sandin v. Conner, 515 U.S. 472, 483-84 (1995); Board of Pardons v. Allen, 482 U.S. 369 (1987). It is also true that changes in the conditions of confinement having a substantial adverse impact on the prisoner are not alone sufficient to invoke the protections of the Due Process Clause "[a]s long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him." Montanye v. Haymes, 427 U.S. 236, 242 (1976).
1. Segregated Housing
While the Supreme Court has not had the opportunity to address in an argued case the question of whether disciplinary confinement of inmates itself implicates constitutional liberty interests, the Court held discipline in segregated confinement did not present the type of atypical, significant deprivation in which a State might conceivably create a liberty interest if the confinement does not exceed similar, but totally discretionary confinement in either duration or degree of restriction. See Sandin v. Conner, 515 U.S. at 486 (1995). In Sandin, the Supreme Court held that the prisoner's "discipline in segregated confinement did not present the type of atypical, significant deprivation in which a state might conceivably create a liberty interest." Id. Sandin establishes that Plaintiff's administrative segregation, without more, does not constitute a deprivation of a constitutionally cognizable liberty interest. Id. citing Rimmer-Bey v. Brown, 62 F.3d 789, 790-91 (6th Cir. 1995) (holding that no liberty interest is implicated by placement in administrative segregation).
2. Effect of Placement in Segregated Housing on Parole
While Plaintiff contends that his term in segregated housing will lengthen his sentence, Defendants argue, and the Court agrees, that Plaintiff's claim does not create a recognized liberty interest sufficient to invoke the protections of the Due Process Clause. The Court is not moved by Plaintiff's claims that the State's action will inevitably affect the duration of his sentence, as nothing requires the parole board to deny parole in the face of a misconduct record or to grant parole in its absence, even though misconduct is a relevant consideration. See Sandin v. Conner, 515 U.S. at 487. The decision to release a prisoner rests on a myriad of considerations and a prisoner is afforded procedural protection at the parole hearing in order to explain the circumstances behind a record of misconduct. Id. The chance that a finding of misconduct will alter the balance is simply too attenuated to invoke the procedural guarantees of the Due Process Clause. Id. 3. Liberty Interest In Goodtime Credits
In his complaint, Plaintiff appears to argue that the mere opportunity to earn good-time credits constitutes a constitutionally cognizable liberty interest sufficient to trigger the protection of the Due Process Clause. Complaint at 39-41. The Court disagrees. In Sandin v. Conner, the Supreme Court held that a prisoner's liberty interest is "generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. at 472-73. The loss of the opportunity to earn good-time credits, which might lead to earlier parole, is a collateral consequence of Plaintiff's custodial status. However, such speculative, collateral consequences of prison administrative decisions do not create constitutionally protected liberty interests. See Meachum v. Fano, 427 U.S. 215, 229 n. 8, 96 S.Ct. 2532, 2540 n. 8 (1976) (noting that possible effect on parole decision does not create liberty interest in confinement in particular prison).
Any of a host of administrative or disciplinary decisions made by prison authorities might somehow affect the timing of a prisoner's release, but such effects have never been held to confer a constitutionally protected liberty interest upon a prisoner such that prison authorities must comply with the Constitutional requirements of due process. Luken v. Scott, 71 F.3d 192, 194 (9th Cir. 1995). As such, the Court recommends that Defendants' Motion to Dismiss be GRANTED as to Plaintiff's claims against Defendants with regard to Liberty interest in segregated housing, its affects on his parole eligibility and goodtime credits in counts 4, 6 and 7.
V. Eighth Amendment Cruel and Unusual Punishment Depravation of Personal Hygiene Products
To sustain an Eighth Amendment claim, the plaintiff must prove a denial of "the minimal civilized measure of life's necessities," occurring through "deliberate indifference" by prison personnel or officers. Rhodes v. Chapman, 452 U.S. 337, 347 (1981); Wilson v. Seiter, 501 U.S. 294, 302-03 (1991). To constitute cruel and unusual punishment in violation of the Eighth Amendment, prison conditions must involve the wanton and unnecessary infliction of pain, or be grossly disproportionate to the severity of the crime warranting imprisonment. . . . "conditions that cannot be said to be cruel and unusual under contemporary standards are not unconstitutional." Rhodes v. Chapman, 452 U.S. at 347. In addition, the Eighth Amendment prohibits punishment that "transgress[es] today's `broad and idealistic concepts of dignity, civilized standards, humanity, and decency.'" Hutto v. Finney, 437 U.S. 678, 685 (1978) (quoting Estelle v. Gamble, 429 U.S. 97, 102 (1976)). However, an institution's obligations under the Eighth Amendment end if the institution provides its sentenced prisoners with adequate shelter, clothing, food, sanitation, medical care and personal safety. See Hoptowit v. Ray, 682 F.2d 1237 (9th Cir. 1982). "To the extent that such conditions are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society." Id.
In evaluating an Eighth Amendment claim based on conditions of confinement, a court must look at each alleged condition individually rather than at the totality of conditions. Id. at 1246-47. The alleged denial of adequate hygiene over an extended period of time can state an objective serious deprivation for the purposes of the Eighth Amendment in certain circumstances. E.g., Bradley v. Puckett, 157 F.3d 1022, 1026 (5th Cir. 1998) (denial of disabled prisoner proper facilities to shower for over two months stated claim for cruel and unusual punishment); Clayton v. Morris, No. 90 C 2718, 1994 WL 118186, *6 (N.D. Ill. Mar. 28, 1994) ("The denial of shower privileges over a prolonged period may be actionable if the inmate can allege a specific physical harm that results."), aff'd, 70 F.3d 1274 (7th Cir. 1995). However, when prisoners are merely inconvenienced or suffer de minimis injuries that do not rise to the level of cruel and unusual punishment, the federal courts should not interfere in the day to day operations of the prison. See, e.g., Hudson v. McMillian, 503 U.S. 1, 9-10 (1992) (Eighth Amendment excludes from constitutional recognition de minimis uses of force); Anderson v. County of Kern, 45 F.3d 1310, 1314-15 (9th Cir. 1995) (temporary placement in safety cell that was dirty and smelled bad did not constitute infliction of pain); Holloway v. Gunnell, 685 F.2d 150 (5th Cir. 1985) (no claim stated where prisoner was forced to spend two days in a hot dirty cell with no water); Miles v. Konvalenka, 791 F.Supp. 212 (N.D.Ill. 1992) (single instance of finding mouse in food not actionable); Evans v. Fogg, 466 F.Supp. 949 (S.D.N.Y. 1979) (no claim stated by prisoner confined for 24 hours in refuse strewn cell and for two days in flooded cell). Federal courts instead should avoid enmeshing themselves in the minutiae of prison operations in the name of the Eighth Amendment. See Wright v. Rushen, 642 F.2d 1129, 1132 (9th Cir. 1981).
Plaintiff alleges that Officer Gervin, Sergeant Cabrera, "Valenzuela," Lieutenant Mettler and Associate Warden Salazar violated his Eighth Amendment rights when they deprived him of personal hygiene products, namely shower shoes, shampoo, deodorant, soap, body lotion, toothpaste, toothbrush and prescription glasses, from July 25, 2003 to August 29, 2003, a period of thirty-five days. Complaint at 24-27. Defendants' argue, however, that Plaintiff later narrows this list to shower shoes, shampoo, deodorant, soap and toothpaste and eventually Plaintiff's states that he only received one-half bar of soap per week. Complaint at 26-27. The Court notes inconsistencies in Plaintiff's complaint such as Plaintiff's claim that he was denied soap, which is clearly inconsistent with Plaintiff's 602 filed on August 29, 2003, which states that soap was only being passed out once a week. However, even in light of these inconsistencies, the Court must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them, and must construe the complaint in the light most favorable to the plaintiff. N.L. Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986); Parks School of Business, Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). The Court finds that Plaintiff has sufficiently pled the above-referenced claims to survive Defendants' Motion to Dismiss and as such, the Court recommends that Defendants' Motion to Dismiss count 5 be DENIED.
Conclusion
For the reasons set forth above, it is recommended that Defendants' Motion to Dismiss be GRANTED as count 2 with the exception of MTA Leal, and counts 3, 4, 6, 7 and 8, and that Defendants' Motion to Dismiss be DENIED as to counts 3 against MTA Leal and count 5. This report and recommendation will be submitted to the United States District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1) (1988). Any party may file written objections with the court and serve a copy on all parties by February 24, 2006. The document should be captioned "Objections to Report and Recommendation." Any reply to the objections shall be served and filed by March 10, 2006. The parties are advised that failure to file objections within the specified time may waive the right to raise those objections on appeal of the Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
IT IS SO ORDERED.