Easter v. CDC

• Citation: 694 F. Supp.2d 1177
• Decision Date: 09 March 2010
• Docket Number: Case No. 09cv0555-LAB (RBB).
• Court: U.S. District Court — Southern District of California
• Parties: Charles EASTER, Plaintiff, v. CDC, et al., Defendants.

694 F. Supp.2d 1177

Charles EASTER, Plaintiff, v. CDC, et al., Defendants.

Case No. 09cv0555-LAB (RBB).

United States District Court, S.D. California.

March 9, 2010.

Charles Easter, Chino, CA, pro se.

Attorney General, State of California Office of the Attorney General, San Diego, CA, Susan E. Coleman, Manning & Marder, Kass, Ellrod, Ramirez, Los Angeles, CA, for Defendants.

ORDER ADOPTING REPORT AND RECOMMENDATION;

ORDER GRANTING IN PART MOTION TO DISMISS; AND

ORDER DISMISSING CLAIMS

LARRY ALAN BURNS, District Judge.

On March 18, 2009, Plaintiff, a prisoner proceeding pro se, filed his complaint seeking damages pursuant to 42 U.S.C. § 1983. Plaintiff was attacked by a group of fellow inmates and attacked a second time after, he alleges, Defendants failed to protect him. This suit is a continuation of an earlier suit that was dismissed to permit Plaintiff to exhaust is administrative remedies.

Defendants then moved to dismiss all claims except Petitioner's Eighth Amendment claim based on Defendants' alleged deliberate indifference to Plaintiff's safety. This matter was referred to Magistrate Judge Ruben Brooks for a report and recommendation pursuant to pursuant to 28 U.S.C. § 636 and Civil Local Rule 72.1(d). Following extensions of time to allow for briefing, Judge Brooks issued his report and recommendation (the "R & R"). The R & R permitted any party to file and serve written objections no later than February 26, 2010. Objections have not been received from either party.

A district judge "may accept, reject, or modify the recommended decision" on a dispositive matter prepared by a magistrate judge proceeding without the consent of the parties for all purposes. Fed. R.Civ.P. 72(b); see 28 U.S.C. § 636(b)(1). "The court shall make a de novo determination of those portions of the report and recommendation to which objection is made." 28 U.S.C. § 636(b)(1). Section 636(b)(1) does not require some lesser review by the district court when no objections are filed. Thomas v. Arn, 474 U.S. 140, 149-50, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). The "statute makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.2003) (en banc) (emphasis in original). The statutory provision does not require that the district court conduct some lesser review when no objections are filed. Thomas, 474 U.S. at 149-50, 106 S.Ct. 466 (1985) ("It does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions under a de novo or any other standard when neither party objects to those findings").

The Court has reviewed the R & R and it appears to be correct and its legal conclusions valid. The Court therefore ADOPTS the R & R. Defendants' Motion to Dismiss the monetary claims against Defendants Morris, Panichello, and Perez in their official capacities is GRANTED and these claims are DISMISSED without leave to amend. Supplemental state claims against Defendants in their official capacities are DISMISSED without leave to amend. Plaintiff's claim under the Fourteenth Amendment is DISMISSED without leave to amend because the allegations are preempted by the Eighth Amendment. Plaintiff's Fifth Amendment claim is DISMISSED with leave to amend his claim involving placement in administrative segregation, but without leave to amend his claim for violation of the prohibition against double jeopardy. Plaintiff's claim for injunctive relief is moot because it is not available to him, and is therefore STRICKEN.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS TO DISMISS DOC. NO. 15

RUBEN B. BROOKS, United States Magistrate Judge.

Plaintiff Charles Easter, now a state prisoner proceeding pro se and in forma pauperis, filed this civil rights complaint pursuant to 42 U.S.C. § 1983 on March 18, 2009 doc. no. 1. At the time he filed this action, Easter was not incarcerated and was living in Escondido, California. (Compl. 1.) The events giving rise to this suit occurred approximately two and one-half years earlier, while Plaintiff was housed at R.J. Donovan Correctional Facility. (Id.) Easter alleges that Defendants violated the Fifth, Eighth, and Fourteenth Amendments of the United States and California Constitutions by improperly placing him in a prison yard where he had been previously assaulted by other inmates which caused him to be assaulted a second time. (Id. at 3-6.)

On August 14, 2009, Defendants Captain B. Morris, Lieutenant L. Panichello, and Officer E. Perez filed a Motion to Dismiss Plaintiffs Complaint for Failure to State a Claim doc. no. 15.¹ Attached to the Motion was a Memorandum of Points and Authorities in Support of Defendants' Motion to Dismiss and the Declaration of James Reinmiller, Custodian of Records for the Government Claims Program doc. nos. 15-2, 15-3. Defendants Morris, Panichello, and Perez argue that they cannot be sued for damages in their official capacities; Plaintiff's state law claims are barred; Easter's Fourteenth Amendment claim is duplicative; Plaintiff fails to state a claim for violation of the Fifth Amendment; and Easter fails to show that he is entitled to injunctive relief. (Mot. to Dismiss 1.)

A Kingele/Rand notice was issued by the Court on October 26, 2009 doc. no. 18. Plaintiff requested additional time to file his opposition and was granted an extension to December 31, 2009 doc. nos. 21-22. Easter's Opposition to Defendants' Motion to Dismiss was filed on December 8, 2009 doc. no. 24. Easter filed a second Opposition to Memorandum of Points and Authorities nunc pro tunc to December 28, 2009 doc. no. 26. Defendants filed a Reply on January 21, 2010 doc. no. 28. The Court found Defendants' Motion suitable for decision without oral argument pursuant to civil local rule 7.1(d)(1) doc. no. 16.

For the reasons set forth below, the district court should GRANT IN PART and DENY IN PART Defendants' Motion to Dismiss.

I. PROCEDURAL BACKGROUND

This action is a resumption of the lawsuit Easter first filed on January 29, 2007. See Easter v. CDC, Civ. No. 07-cv-187-L(LAB) (S.D.Cal. filed Jan. 29, 2007). In that action, Easter alleged that the Defendants were deliberately indifferent to his safety, acted negligently, and violated his right to be free from cruel and unusual punishment by placing him on the same prison yard where he had been previously assaulted by other inmates. Id. (comp. at 3, 6).

On November 20, 2008, United States District Court Judge M. James Lorenz granted the defendants' motions to dismiss and dismissed the complaint without prejudice. Id. (order adopting & modifying report & recommendation at 1-3). Judge Lorenz concluded that Easter filed his administrative grievance on February 7, 2007, after he had filed suit on January 29, 2007. Because the administrative grievance procedure was ongoing, the court dismissed the complaint without prejudice.

The present Complaint, filed on March 18, 2009, is a continuation of Plaintiffs attempt to litigate the civil rights violations he first alleged on January 29, 2007.

II. FACTUAL BACKGROUND

Easter was incarcerated at the Richard J. Donovan Correctional Facility ("Donovan"). (Compl. 1.) On August 27, 2006, while housed in yard four of building seventeen, he was assaulted by fifteen inmates and hospitalized. (Compl. 3, 5.) An incident report was completed and Easter's enemy concerns were noted. (Id. at 3.) Plaintiff was initially released to facility two because he had enemies at facility four. (Id. Attach. # 1, 11.) Then, he was rehoused with his inmate enemies in building seventeen, yard four, and on November 14, 2006, he "was attacked and stabbed and sent to the hospital with life threatening injuries." (Id.)

Easter contends that Captain Morris approved the move; Lieutenant Panichello ordered Plaintiff to move, although Easter complained about his inmate enemies and had other housing; and Correctional Officer Perez oversaw the move, even though he was aware of the prior attack on Easter. (Id. at 3-5.)

III. LEGAL STANDARDS

APPLICABLE TO DEFENDANTS' MOTION TO DISMISS

A. Motions to Dismiss For Failure to State a Claim

A motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the claims in the complaint. Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 633, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999). "The old formula—that the complaint must not be dismissed unless it is beyond doubt without merit—was discarded by the Bell Atlantic decision Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 n. 8, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ." Limestone Dev. Corp. v. Vill. of Lemont, 520 F.3d 797, 803 (7th Cir.2008).² A complaint must be dismissed if it does not contain "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp., 550 U.S. at 570, 127 S.Ct. 1955. "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. ___, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). 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. Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 973 (9th Cir.2004) (citing Karam v. City of Burbank, 352 F.3d 1188, 1192 (9th Cir.2003)); Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir.1995); N.L. Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir.1986).

The Court does not look at whether the plaintiff will "ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236, ...