Case No.: 16cv2184 WQH (BGS)
REPORT AND RECOMMENDATION ON MOTION TO DISMISS
[ECF No. 7]
Defendant Deputy Ancho has filed a Motion to Dismiss Plaintiff Christopher M. Mendoza's Complaint. (ECF 7.) Plaintiff has filed an Opposition to the Motion in which he also seeks leave to amend. (ECF No. 11.) Defendant Ancho has filed a Reply. (ECF No. 12.) The Motion has been referred to the undersigned Magistrate Judge for a Report and Recommendation ("R&R"). For the reasons set forth below, the Court RECOMMENDS that Defendant's Motion to Dismiss be DENIED and Plaintiff be GRANTED leave to amend file a First Amended Complaint.
As explained more fully below, in addition to seeking leave to file an amended complaint if his Complaint is dismissed, Plaintiff also appears to be requesting leave to amend to name additional defendants. (Opp'n at 8-9, Decl. of Christopher Mendoza in Supp. of Opp'n ("Pl.'s Decl") ¶ 35.)
The following summary is drawn from the allegations stated in Plaintiff's Complaint and is not to be construed as findings of fact by the Court.
Plaintiff asserts five counts in his Complaint. (Compl. [ECF No. 1 at 3-7]) The first four are for failing to protect Plaintiff from harm or physical injury by other inmates in violation of the Eighth Amendment. (Compl. at 3 (Count 1); 4 (Count 2); 5 (Count 3); 6 (Count 4).) The fifth count is based on failing to provide an accessible grievance process and failing to mandate staff to provide access to a grievance process. (Compl. at 7 (Count 5.) Although only Count 4, the count asserted against moving Defendant Ancho, is at issue in this Motion, the Court includes the other counts and allegations in support for purposes of understanding the allegations against Defendant Ancho.
Because there are no page numbers visible on the Complaint, all further references are to the ECF page numbers.
Count 1 is asserted against a doe defendant, an unnamed classification employee at the jail. Plaintiff alleges that he told the employee that his life was in jeopardy because he was an informant for law enforcement in San Diego County and he requested that he be place protective custody on this basis. (Compl. at 3.) Plaintiff also alleges he informed the classifications employee during the intake process that he was Native American. (Id.) Plaintiff also attaches a declaration from his counsel in his criminal proceeding that indicates that at the time of his sentencing his counsel advised the court that Plaintiff had been improperly classified as Hispanic, rather than Native American, and that Plaintiff had suffered physical abuse as a result. (Decl. of Henry Martinez ¶¶ 2-3.) [ECF 1 at 9].) At counsel's request, the court entered into the record a finding that Plaintiff is Native American and should be so classified. (Id. at 4.) Plaintiff asserts that the jail classification unit places ethnic races together to avoid harm to the person being placed and that the classification employee knew that gangs exist in the jail and are race based. (Id.) Plaintiff alleges that, despite the above information, the classifications employee failed to place Plaintiff in protective custody and placed him with ethnic races other than his own and he was assaulted as a result. (Id. at 3-4, 5.)
It appears from Plaintiff's Opposition that he might be requesting leave to amend his Complaint to name Deputy Flores in place of this doe defendant because he indicates Deputy Flores is a classification sergeant, but it is not entirely clear. Regardless, at this point, only Defendant Ancho has been named as a defendant and served. (ECF Nos. 6, 8.)
As explained below, "[w]hen a plaintiff has attached various exhibits to the complaint, those exhibits may be considered in determining whether dismissal is proper without converting the motion to one for summary judgment." Wilhelm v. Rotman, 680 F.3d 1113, 1116 n.1 (9th Cir. 2012).
Count 2 is asserted against another doe defendant, a supervisor of Defendant Deputy McGuire and Defendant Ancho. (Id. at 4.) Plaintiff alleges that the supervisor failed to ensure the deputies investigated the assaults on Plaintiff and allowed assaults to take place. (Id.)
Count 3 is asserted against Defendant McGuire. (Id. at 5.) The Complaint alleges Defendant McGuire was working on the floor of Plaintiff's unit on November 21, 2015 when he was placed in a unit with Caucasians and jumped by 7 white inmates. (Id.) Plaintiff alleges he pressed the emergency call button, Deputy McGuire saw the assault taking place, and that Deputy McGuire allowed the assault to continue for 7 to 8 minutes. (Id.) Plaintiff was taken to the infirmary and treated for injuries and requested Deputy McGuire place him in protective segregation because his life was in jeopardy. (Id. at 6.) Deputy McGuire stated only if you press criminal charges. (Id.) Plaintiff told Deputy McGuire to look at the security video. (Id.) While being escorted by Deputy McGuire from the infirmary, Plaintiff asked where he was taking him and Deputy McGuire responded "back to the same unit." (Id.) When Plaintiff refused to walk any further, Deputy McGuire placed Plaintiff in a holding cell without a toilet and water for ten to twelve hours. (Id.)
Count 4 is asserted against moving Defendant Ancho. (Id.) Plaintiff alleges that shortly after the assault, on November 26, 2015, Defendant Ancho asked Plaintiff why he was swollen and bruised and Plaintiff indicated he had been assaulted. (Id.) Plaintiff told Defendant Ancho that he needed to be placed in protective segregation and Defendant Ancho replied that there was no room. (Id.) Defendant Ancho placed Plaintiff in unit 4-B, a unit Plaintiff alleges included inmates who were not his ethnic race and an inmate named Sergio that Plaintiff had informed on and was listed as an enemy for Plaintiff. (Id.) Plaintiff was jumped and beaten by several inmates and suffered injury. (Id. at 6-7)
In Count 5, Plaintiff alleges he was denied access to a grievance process despite asking both Deputy McGuire and others about pursuing a grievance. (Id. at 7.) Plaintiff was told by Deputy McGuire that the issue was not grievable because Plaintiff was moved from the cell and further harm. (Id.)
I. Motion to Dismiss
A. Standard for Motion to Dismiss under Rule 12(b)(6)
Defendant Ancho moves to dismiss Plaintiff's claim against him, Count 4, pursuant to Federal Rule of Civil Procedure 12(b)(6). "A dismissal under [R]ule 12(b)(6) 'may be based on either a lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.'" Kwan v. SanMedica Int'l, 854 F.3d 1088, 1093 (9th Cir. 2017) (quoting Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121-22 (9th Cir. 2008)).
Under Rule 8(a)(2), the complaint need only provide a "short and plain statement of the claim showing that [he] is entitled to relief." Although "the statement need only give the defendant[s] fair notice of what ... the claim is and the grounds upon which it rests," it "must, at a minimum, plead 'enough facts to state a claim to relief that is plausible on its face.'" Johnson, 534 F.3d at 1122 (quoting Erickson v. Pardus, 551 U.S. 89, 127 (2007) and Bell Atl. Corp. v. Twombly, 550 U.S. 554, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).
The Court must view the factual allegations of the complaint "in the light most favorable to [the plaintiff], accepting all well-pleaded factual allegations as true, as well as any reasonable inferences drawn from them." Johnson, 534 F.3d at 1123 (citing Broam v Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003)). Additionally, because Plaintiff "is an inmate . . . proceed[ing] pro se, his complaint 'must be held to less stringent standards than formal pleadings drafted by lawyers.'" Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (explaining that courts should "continue to construe pro se filings liberally when evaluating them under Iqbal."). Particularly in civil rights case, the court must "construe the pleadings liberally and . . . afford the petitioner the benefit of any doubt." Id. (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n. 1 (9th Cir. 1985)). "However, a liberal interpretation of a pro se civil rights complaint may not supply essential elements of the claim that were not initially pled. Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss." Litmon v. Harris, 768 F.3d 1237, 1241 (9th Cir. 2014) (citing Pena v Gardner, 976 F.2d 469, 471 (9th Cir 1992)).
The Court's review on a motion to dismiss under Rule 12(b)(6) is generally limited to the allegations of the complaint and exhibits attached to the complaint. Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (citing Cervantes v. City of San Diego, 5 F.3d 1273, 1274 (9th Cir. 1993)); Wilhelm, 608 F.3d at 1116 n. 1. "[A] court may not look beyond the complaint to a plaintiff's moving papers, such as a memorandum in opposition to a defendant's motion to dismiss." Schneider v. Cal. Dep't of Corrs., 151 F.3d 1194, 1197 n. 1 (9th Cir. 1998). Here, Plaintiff has attached a declaration to his Opposition to the Motion to Dismiss asserting many additional allegations as to Defendant Ancho. (Pl.'s Decl. [ECF No. 11 at 16-36].) The Court has not considered those allegations in evaluating the sufficiency of the allegations of the Complain.
"Facts raised for the first time in plaintiff's opposition papers should be considered by the court in determining whether to grant leave to amend or to dismiss the complaint with or without prejudice." Broam, 320 F.3d at 1026 n.2 (citing Orion Tire Corp. v. Goodyear Tire & Rubber Co., 268 F.3d 1133, 1137-38 (9th Cir. 2001)).
B. 42 U.S.C § 1983 Standard
"To state a claim under § 1983, a plaintiff  must allege the violation of a right secured by the Constitution and laws of the United States, and  must show that the alleged deprivation was committed by a person acting under color of state law." Naffe v. Frey, 789 F.3d 1030, 1035-36 (9th Cir. 2015) (quoting West v. Atkins, 487 U.S. 42, 48 (1988)). Dismissal pursuant to Rule 12(b)(6) "is proper if the complaint is devoid of factual allegations that give rise to a plausible inference of either element." Id. at 1036 (citing DeGrassi v. City of Glendora, 207 F.3d 636, 647 (9th Cir. 2000), Price v. Hawaii, 939 F.2d 702, 707-09 (9th Cir. 1991), and Iqbal, 556 U.S. at 678). Because Defendant Ancho does not challenge the second element in his Motion, the Court need only determine if Plaintiff has alleged a constitutional violation. Here, Plaintiff claims that Defendant Ancho violated the Eighth Amendment by failing to protect him from attack by other inmates.
Failing to protect a prisoner from violence can constitute an Eighth Amendment violation. "[P]rison officials have a duty . . . to protect prisoners from violence at the hands of other prisoner." Farmer v. Brennan, 511 U.S. 825, 833 (1994). "It is not, however, every injury suffered by one prisoner at the hands of another that translates into constitutional liability for prison officials responsible for the victim's safety." Id. at 834. "The failure of prison officials to protect inmates from attacks by other inmates may rise to the level of an Eighth Amendment violation when: (1) the deprivation alleged is 'objectively, sufficiently serious' and (2) the prison officials had a 'sufficiently culpable state of mind,' acting with deliberate indifference." Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005). Defendant Ancho challenges the sufficiency of the allegations of the Complaint on the second requirement, deliberate indifference.
1. Deliberate Indifference
"[T]o establish a prison official's deliberate indifference, an inmate must show that the official was aware of a risk to the inmate's health or safety and that the official deliberately disregarded the risk." Foster v. Runnels, 554 F.3d 807, 814 (9th Cir. 2009) (citing Johnson v Lewis, 217 F.3d 726, 734 (9th Cir. 2000)). Deliberate indifference is itself a two-part inquiry. Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010). "First, the inmate must show that the prison officials were aware of a 'substantial risk of serious harm' to an inmate's health or safety." Id. (quoting Farmer, 511 U.S. at 837). "Second, the inmate must show that the prison officials had no 'reasonable' justification for the deprivation, in spite of that risk." Id. (citing Farmer, 511 U.S at 844). Here, Defendant Ancho challenges the sufficiency of the allegations as to the first inquiry.
Defendant Ancho argues that Plaintiff has failed to allege that Defendant Ancho had the authority to reassign Plaintiff to protective segregation. To the extent Defendant Ancho is arguing that he acted reasonably in disregarding a substantial risk of harm because he lacked authority to change Plaintiff's placement, that goes beyond the allegations of the Complaint.
The first part of the inquiry, awareness of a substantial risk, may be satisfied by "demonstrate[ing] that the risk was obvious or provid[ing] other circumstantial or direct evidence that the prison officials were aware of the substantial risk." Lemire v. Cal. Dep't of Corrs. and Rehab., 726 F.3d 1062, 1078 (9th Cir. 2013); see also id. (citing Farmer, 511 U.S. at 842 and finding the substantial risk inquiry "may be satisfied if the inmate shows that the risk posed by the deprivation is obvious."). "Although an inmate is required to show awareness of the risk, 'a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.'" Foster, 554 F.3d at 814 (quoting Farmer, 511 U.S. at 842).
Defendant Ancho argues Plaintiff has failed to allege deliberate indifference because the Complaint lacks allegations Defendant Ancho even knew that putting Plaintiff in unit 4-B would put Plaintiff at an increased risk of harm. Specifically, he argues that because Plaintiff did not protest this placement or express fears of the specific inmates in this particular unit he had no reason to know that placing Plaintiff in this unit would put Plaintiff at an increased risk of harm. As explained below, this characterization of the allegations is not entirely accurate and would reverse the Court's obligation to view the Complaint in favor of the Plaintiff to viewing it in favor of Defendant Ancho.
When asked by Defendant Ancho why he was swollen and bruised, Plaintiff responded that he had been assaulted. Plaintiff then alleges that in the same exchange, he told Defendant Ancho that he needed to be placed in protective segregation. This could fairly be considered protesting his new placement in unit 4-B because unit 4-B was not protective segregation. It could also be considered an expression of fear of being placed in this unit given his placement is discussed in an exchange about Plaintiff being assaulted, a conclusion bolstered by Plaintiff looking like he had been assaulted.
While the Court agrees that if Plaintiff had identified specific reasons the inmates in this particular unit posed a unique threat to Plaintiff's safety or if Defendant Ancho had placed Plaintiff in the unit in which he had been assaulted, the risk would have been more obvious, the Court cannot conclude, as Defendant Ancho argues, that he "had no reason to know" that placing Plaintiff in this unit would put Plaintiff at substantial risk of harm. (Mot. at 4.) Plaintiff is not required to show that "an individual prison official had specific knowledge that harsh treatment of a particular inmate, in particular circumstances, would have a certain outcome." Thomas, 611 F.3d at 1151; see also Wallis v. Baldwin, 70 F.3d 1074, 1077 (9th Cir. 1995) ("[A] prison official need not have acted 'believing that harm actually would befall an inmate; it is enough that the official acted . . . despite his knowledge of a substantial risk of serious harm.'"). "Rather, [courts] measure what is 'obvious' in light of reason and the basic general knowledge that a prison official may be presumed to have obtained regarding the type of deprivation involved." Thomas, 611 F.3d at 1151 (citing Farmer, 511 U.S. at 842).
Additionally, relying on the above allegations is not basing liability on constructive knowledge. Defendant Ancho argues his "obscure knowledge" of Plaintiff's recent assault via Plaintiff's appearance is insufficient to infer a heightened risk to Plaintiff. (Reply at 3.) He cites Harrington v. Scriber, 785 F.3d 1299, 1304 (9th Cir. 2015) and seems to argue that drawing such an inference would be basing liability on constructive knowledge. (Id.) However, as explained above, it was not just Plaintiff's appearance from which Defendant Ancho could infer a substantial risk of harm. Additionally, as explained in Harrington "whether 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." 785 F.3d at 1304 (distinguishing constructive notice). At this stage, where the Court is limited to the allegations of the Complaint and required to draw all reasonable inferences in Plaintiff's favor, the Complaint plausibly alleges Defendant Ancho knew Plaintiff faced a substantial risk of harm in being placed in unit 4-B and disregarded that risk by putting him in that unit.
Therefore the Court RECOMMENDS Defendant Ancho's Motion to Dismiss be DENIED.
II. Leave to Amend
Plaintiff's Opposition to the Motion to Dismiss includes a request for leave to amend to assert additional allegations as to Defendant Ancho if his Complaint is dismissed. It is not entirely clear whether Plaintiff is seeking leave to amend if, as recommended above, the Motion to Dismiss is denied. He notes wanting to name additional defendants and have them served, but he indicates he wants to name those additional defendants after engaging in discovery. (Pl.'s Opp'n at 9; Pl.'s Decl. at ¶ 35.) Discovery has not yet commenced in this case.
Discovery would be premature at this point because the only defendant served, Defendant Ancho, filed a Motion to Dismiss. --------
Plaintiff has not properly sought leave to amend. He includes the request in his Opposition and, as noted above, it is not even clear he wants leave to amend if the Motion to Dismiss is denied. However, the Court construes it as a request for leave to amend in the interests of moving the case forward.
Under Federal Rule of Civil Procedure 15(a)(2), leave to amend shall be freely given when justice so requires. "In deciding whether justice requires granting leave to amend, factors to be considered include the presence or absence of undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party and futility of the proposed amendment." Moore v. Kayport Package Express, Inc., 885 F.2d 531, 538 (9th Cir. 1989) (citing Foman v. Davis, 371 U.S. 178, 182 (1962) and DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987).
Here, there has been no undue delay, bad faith, or dilatory motive. It does not appear there would be any undue prejudice to any defendants. And, there have been no repeated failures to cure deficiencies by previous amendments. This would be Plaintiff's first attempt to amend his Complaint. However, Plaintiff has not set forth allegations as to these particular defendants that would allow the Court to consider the futility of amendment and futility of amendment can be a basis for denying leave to amend. Carrico v. City of San Francisco, 656 F.3d 1002, 1008 (9th Cir. 2001); but see SAES Getters S.p.A. v. Aeronex, Inc., 219 F. Supp. 2d 1081 (S.D. Cal. 2002) (explaining that issues of the sufficiency of a proposed amendment are often more appropriately raised in a motion to dismiss rather that in an opposition to a motion for leave to amend). Although the Court is not able to evaluate futility, all the other factors weigh in favor of amendment and the Court finds it significant that this would be Plaintiff's first amendment. Given the foregoing and in the interest of efficiently proceeding with the case the Court RECOMMENDS GRANTING Plaintiff leave to file a First Amended Complaint if that is what he is requesting. Regardless of any objections Plaintiff might have to the Court's R&R, Plaintiff should file a notice with the Court indicating whether he is in fact seeking leave to file an amended complaint by the date set for objections below.
The Court submits this Report and Recommendation to United States District Judge William Q. Hayes. For the reasons outlined above, IT IS RECOMMENDED that the Court DENY Defendant Ancho's Motion to Dismiss and GRANT Plaintiff leave to file an amended complaint.
IT IS HEREBY ORDERED that any party to this action may file written objections with the Court and serve a copy on all parties no later than July 31 , 2017 . The document should be captioned "Objections to Report and Recommendation."
IT IS FURTHER ORDERED that any Reply to the Objections shall be filed with the Court and served on all parties no later than August 10 , 2017 . 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. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).
IT IS SO ORDERED. Dated: July 14, 2017
Hon. Bernard G. Skomal
United States Magistrate Judge