Williams v. Rodriguez
| Decision Date | 07 February 2017 |
| Docket Number | Case No.: 1:14-cv-02073-AWI-SAB (PC) |
| Parties | GERRY WILLIAMS, Plaintiff, v. J. RODRIGUEZ, et al., Defendants. |
| Court | U.S. District Court — Eastern District of California |
FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT DEFENDANTS' MOTION TO DISMISS BE DENIED
Plaintiff Gerry Williams, proceeds pro se in this civil rights action pursuant to 42 U.S.C. § 1983. This action currently proceeds on Plaintiff's complaint against Defendants Oxborrow, Wisley, Shuler, J. Rodriguez, R. Rodriguez, Rumbles and Black for failure to protect Plaintiff, and against Defendant Wisley for excessive force, in violation of the Eighth Amendment. This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
Currently before the Court is Defendants' motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) on the following grounds: (1) the complaint is barred by claim preclusion; (2) Plaintiff fails to allege sufficient facts to state a constitutional violation by Defendants Black and Rumbles; and (3) Defendants are entitled to qualified immunity. (ECF No. 22.) As discussed below, the Court recommends Defendants' motion to dismiss be denied, in its entirety.
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Plaintiff initiated this action and filed his complaint on December 29, 2014. (ECF No. 1.) Following screening and the completion of service documents by Plaintiff, the complaint was ordered to be served on March 15, 2016. (ECF No. 20.) Waivers of service were returned executed on May 11, 2016.
On June 1, 2016, Defendants filed the instant motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), on the following grounds: (1) the Complaint is barred by claim preclusion; (2) Plaintiff fails to allege sufficient facts to state a constitutional violation by Defendants Black and Rumbles; and (3) Defendants are entitled to qualified immunity. (ECF No. 22.)
On June 20, 2016, Plaintiff filed an opposition to Defendants' motion to dismiss. (ECF No. 23.) On June 27, 2016, Defendants filed a reply to Plaintiff's opposition. (ECF No. 25.) On July 11, 2016, Plaintiff filed a sur-reply to Defendants' reply to his opposition. (ECF No. 26.)
Parties do not have the right to file sur-replies and motions are deemed submitted when the time to reply has expired. Local Rule 230(l). The Court generally views motions for leave to file a sur-reply with disfavor. Hill v. England, No. CVF05869 REC TAG, 2005 WL 3031136, at *1 (E.D. Cal. 2005) (citing Fedrick v. Mercedes-Benz USA, LLC, 366 F.Supp.2d 1190, 1197 (N.D. Ga. 2005)). However, district courts have the discretion to either permit or preclude a sur-reply. See U.S. ex rel. Meyer v. Horizon Health Corp., 565 F.3d 1195, 1203 (9th Cir. 2009) (); JG v. Douglas County School Dist., 552 F.3d 786, 803 n.14 (9th Cir. 2008) (); Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir. 1996) ().
In this instance, the Court finds that Plaintiff did not seek and was not granted permission to file any sur-reply, and that no further briefing is required on the motion to dismiss. Therefore, the Court recommends that Plaintiff's sur-reply be stricken from the record, and not considered.
/// Defendants' motion to dismiss is deemed submitted for review without oral argument. Local Rule 230(l).
A motion to dismiss brought pursuant to Rule 12(b)(6) tests the legal sufficiency of a claim, and dismissal is proper if there is a lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Conservation Force v. Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011) (quotation marks and citations omitted). In resolving a 12(b)(6) motion to dismiss, a court's review is generally limited to the operative pleading. Daniels-Hall v. National Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010); Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007); Schneider v. California Dept. of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998).
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (quotation marks omitted); Conservation Force, 646 F.3d at 1242; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The Court must accept the factual allegations as true and draw all reasonable inferences in favor of the non-moving party. Daniels-Hall, 629 F.3d at 998; Sanders, 504 F.3d at 910; Morales v. City of Los Angeles, 214 F.3d 1151, 1153 (9th Cir. 2000).
Pro se litigants are entitled to have their pleadings liberally construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012); Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); Silva v. Di Vittorio, 658 F.3d 1090, 1101 (9th Cir. 2011); Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).
Plaintiff alleges that on March 1, 2011, while housed at Pleasant Valley State Prison ("PVSP"), he was moved into a cell on A Facility with inmate Willis. On March 3, 2011, Plaintiff spoke to Officer Andrade, and requested a cell move because he and inmate Willis "were not getting along."(Compl. ¶ 3.) Officer Andrade told Plaintiff that the only way he could be moved is if he fought with inmate Willis.
On March 6, 2011, Plaintiff went to the medical clinic. When he returned, he told Andrade that he almost had a fight with inmate Willis, and "needed to be moved immediately." (Compl. ¶ 4.) Plaintiff told Andrade that he found an inmate willing to switch with Plaintiff, inmate Valencia. Officer Andrade refused to move Plaintiff. Plaintiff spoke to inmate Willis, and asked him if he would like to be celled with inmate Valencia. Inmate Willis "got mad and attacked Plaintiff, knocked Plaintiff to the floor and beat Plaintiff in the head injuring Plaintiff's jaw." (Id. ¶ 6.)
Officer Andrade activated his alarm, and several officers responded. Plaintiff was placed in handcuffs and taken to the program office, where he was interviewed by Sergeant Deathridge. Sergeant Deathridge asked Plaintiff to sign a compatibility chrono, which Plaintiff refused to do. Plaintiff asked to be placed in Administrative Segregation (Ad Seg). Sergeant Deathridge refused to move Plaintiff off the yard.
Plaintiff requested medical treatment for his jaw and was taken to medical for evaluation. Plaintiff was eventually placed in the Correctional Treatment Center for psychological evaluation. On March 10, 2011, Plaintiff attended the "psych committee" for a final evaluation. (Compl. ¶ 11.) During the evaluation, Plaintiff asked Lieutenant Webster to be placed in Ad Seg for his safety. Plaintiff showed Lieutenant Webster the unsigned compatibility chrono, and continued asking to be placed in Ad Seg. Plaintiff told Webster that he and Willis were now enemies. Lieutenant Webster placed Plaintiff back on A Facility.
When Plaintiff returned to A Facility, he continued to request placement in Ad Seg. The Facility A Program Sergeant, Defendant Oxborrow, placed Plaintiff in a cell with inmate Garza. Prior to placing Plaintiff in the cell with inmate Garza, Defendants Shuler and R. Rodriguez told inmate Garza that "Plaintiff was coming from psych watch and that Plaintiff had two fights with his last two cellmates." (Compl. ¶ 15.) Inmate Garza told Plaintiff that he did not want to cell with him. After telling Defendants Shuler and J. Rodriguez what inmate Garza told him, they ordered Plaintiff in the cell with inmate Garza. Plaintiff continued to refuse, and Defendants Oxborrow and Wisley forced Plaintiff into the cell with inmate Garza.
As soon as Plaintiff entered the cell, inmate Garza "attacked Plaintiff and ran Plaintiff out of the cell, pushed Plaintiff down the staircase injuring Plaintiff's back and left knee." (Compl. ¶18.) Plaintiff alleges that when he got up, control booth Officer May fired a 40mm projectile launcher, hitting Plaintiff on his right finger and upper right leg.
After receiving medical care, Plaintiff was taken back to A Facility and placed in cell 209. Prior to being placed in cell 209, Defendant Wisley told the inmate in cell 209 that Plaintiff was a "J-Cat and like to fight his cellmates." (Compl. ¶ 20.)
On March 14, 2011, Plaintiff was moved to cell 147. Prior to being placed in cell 147, Defendant Wisley told the inmate in cell 147 that "Plaintiff was a J-Cat and that if he beat Plaintiff up, he would not get a CDCR 115." Around 5:30 p.m., Plaintiff was experiencing extreme pain in his lower back and taken for medical treatment. When Plaintiff returned, he discovered that the inmate in cell 147 had stolen is television/CD player and given it to someone else. Plaintiff told Sergeant Espino and Sergeant Parks, but they did nothing to get Plaintiff's property back. The next day, Plaintiff told the control booth Officer Ruth. Officer Ruth announced over the public address system that if Plaintiff did not get his property back, all the cells would be searched. Plaintiff's property was returned to him in broken pieces.
Plaintiff was subsequently moved to cell 126. Plaintiff alleges that on April 7, 2011, Defendants Wisley and Sergeant Silveira informed Plaintiff he would be moved in with an inmate that was gang-affiliated. Plaintiff told Defendant Wisley that he did not want to be housed with a gang member. Defendant Wisley called the program office and Defendants R. Rodriguez, Rubles and Black responded. Defendant Wisley grabbed Plaintiff by the arm and threw Plaintiff to the floor and hit Plaintiff in...
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