Alexander v. Diaz

ANAND JON ALEXANDER, Plaintiff, v. RALPH DIAZ, Defendant.

Case No.: 20cv100-CAB-KSC

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

May 29, 2020

ORDER REGARDING DEFENDANTS' MOTION TO DISMISS [Doc. No. 6]

On January 14, 2020, Plaintiff Anand Jon Alexander filed a Complaint for Damages, setting forth six causes of action: (1) Eighth Amendment claim (under 42 U.S.C. §1983) for failure to protect inmate from harm; (2) Supervisory liability under 42 U.S.C. §1983; (3) Eighth Amendment claim (under 42 U.S.C. §1983) for deliberate indifference to medical condition; (4) Violation of California Civil Code §52.1 (Bane Act); (5) Negligence; and (6) Violation of California Government Code §845.6 (failure to summon or provide immediate necessary care). On March 30, 2020, Defendants Diaz, Pollard, Paramo and Ramirez filed a motion to dismiss the complaint for failure to state a claim. [Doc. No. 6.] On April 24, 2020, Plaintiff filed an opposition. [Doc. No. 8.] On May 7, 2020, Defendants filed a reply to the opposition. [Doc. No. 9.] For the reasons set forth below, the motion to dismiss the complaint is GRANTED WITH LEAVE TO AMEND.

ALLEGATIONS OF COMPLAINT

Plaintiff is an inmate incarcerated by the California Department of Corrections and Rehabilitation (CDCR) at Richard J. Donovan Correctional Facility (Donovan) in San Diego County. (Compl., ECF 1 at ¶¶ 17 - 19.) Plaintiff was initially classified as a Level III inmate at the California Correctional Institution, but that classification was reduced to a Level II after Plaintiff arrived at Donovan. (Id. at ¶¶ 17, 18.) Plaintiff was initially housed on a sensitive needs yard (D yard) at Donovan, but was transferred to the general population and housed on E yard on May 30, 2019. (Id. at ¶ 19.) But prior to this transfer, Plaintiff was assaulted on the sensitive needs yard (D Yard) on May 18, 2019. (Id. at ¶ 23.)

The May 18, 2019 assault was "a racially motivated hate crime." (Id.) The attack caused "grave bodily injuries, including multiple stab wounds to [Plaintiff's] face and right eye (requiring over a dozen stitches at the upper orbital), five facial fractures, a lower orbital floor blowout, sinus and nasal fractures, a deviated septum, a 50% abrasion of the right cornea, long term impairment of his vision and respiration, serious nerve damage, PTSD, psychological collateral damage, [and] ongoing therapy, work, and education restriction." (Id.) Plaintiff was a "'first tier' resident," waiting by the telephones to call his mother on May 18, 2019. (Id. at ¶ 24.) A "second tier" Level IV inmate named Dominic Rizzo, CDCR No. V04967, "somehow managed to/or was allowed to sneak up on [Plaintiff] from behind and stab Plaintiff multiple times in the face. (Id.) Plaintiff blacked out and was kicked and beaten. (Id.) Rizzo should not have been in the day room where the alleged incident happened because first- and second-tier inmates should not be allowed to come into physical contact with each other in the interests of "inmate control, officer safety and the protection of both." (Id.) A second inmate, Justin Simons CDCR #AK5535, followed up this attack with death threats against Plaintiff on May 25. (Id. at ¶ 25.) Inmate Simons was "Rizzo's accomplice," and both inmates are white supremacists. (Id.) Plaintiff told an unnamed correctional officer about the alleged threat. (Id. at ¶ 26.) The unnamed correctional officer told Plaintiff thathis options were to "(1) go to the hole and nothing happens to Rizzo or Simons; (2) lose and get sent to a Level III yard elsewhere; or (3) win and go to a Level II yard." (Id.)

On May 29, 2019, Simons was banging on Plaintiff's cell door, displaying a shank, and calling Plaintiff "a motherfucker," and said "I'm going to get you, there is a green light." Plaintiff reported the threat, but the pleadings do not say to whom this report was made. (Id.) Both Simmons's and Rizzo's cells were searched, but the pleadings are silent as to who searched them. (Id.) Plaintiff was locked in his cell "for his protection." (Id.) Plaintiff was not provided with a "required" written record being locked within his cell. (Id.)

The Complaint further alleges that "CDCR and the Defendants failed to protect [Plaintiff] by knowingly allowing a known violent Level IV assailant to be housed with, and have open access to, [Plaintiff], a Level II low risk inmate with no history of violence classified as a sensitive needs inmate." (Id. at ¶ 27.) Plaintiff and Rizzo should have never been placed on the "same yard, much less the same floor, at the same time." (Id.) "The staff at RJ Donovan have attempted to cover up the incident in several ways, going so far as to try and incriminate [Plaintiff], the only actual victim." (Id. at ¶ 28.) Defendant Ramirez prepared a false Rules Violation Report stating that the assault "was no more than 'fighting' (i.e. mutual Combat) and reported no serious injuries with respect to Plaintiff." (Id. at ¶ 28(c).)

Finally, the Complaint alleges "[t]he institution" failed or refused to transfer Plaintiff to a lower-level yard "because they told them it was [to] be contingent on the outcome of the RVR hearing (based on the false report of 'fighting')." (Id. at ¶ 29.) A hearing was held on May 30, 2019, where the Rules Violation Report was dismissed "at the last moment." (Id.) Plaintiff was then transferred out to lower level II (E Yard) within the same hour. (Id.) "This clearly indicates an attempt to avoid having the reporting officer answer difficult questions under penalty of perjury and to keep the incident under wraps." (Id.) It took more than seven months of administrative appeals to have inmates Rizzo and Simmons placed on Plaintiff's "enemy list." (Id. at ¶ 30.)

Plaintiff claims serious medical injuries from the alleged assault such as double vision, nerve damage, and a deviated septum. (Id. at ¶ 31.) "The institution" delayed Plaintiff's request for a second opinion on surgery such that the delay made it impossible for him to have the surgery because of the time lapse. (Id.) "The institution" has not cleared him to have dental surgery. (Id.) He was put on heavy duty despite medical orders limiting him to complete rest or light duty. (Id.) "However, as a result of administrative appeals," Plaintiff's assignment to "heavy duty" was excused. (Id.)

LEGAL STANDARD

Under Rule 12(b)(6), a party may bring a motion to dismiss based on the failure to state a claim upon which relief may be granted. A Rule 12(b)(6) motion challenges the sufficiency of a complaint as failing to allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). For purposes of ruling on a Rule 12(b)(6) motion, the court "accept[s] factual allegations in the complaint as true and construe[s] the pleadings in the light most favorable to the non-moving party." Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008).

Even under the liberal pleading standard of Rule 8(a)(2), which requires only that a party make "a short and plain statement of the claim showing that the pleader is entitled to relief," a "pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). "[C]onclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss." Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004); see also Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011) ("[A]llegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively."). "Determining whether a complaint states a plausible claim for relief . . . [is] a context-specific task thatrequires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679.

DISCUSSION

A. Eighth Amendment Claim for Deliberate Indifference to Plaintiff's Safety.

The Eighth Amendment, which applies to the states through the Due Process Clause of the Fourteenth Amendment, prohibits the infliction of "cruel and unusual punishments" on those convicted of crimes. Wilson v. Seiter, 501 U.S. 294, 296-97 (1991). Conditions of confinement may, consistent with the Constitution, be restrictive and harsh. See Rhodes v. Chapman, 452 U.S. 337, 347 (1981). The Eighth Amendment requires, however, that prison officials ensure that inmates receive adequate food, clothing, shelter, and medical care. Hearns v. Terhune, 413 F.3d 1036, 1042 (9th Cir. 2005) (citations omitted).

A plaintiff who challenges conditions of confinement must essentially make two showings to demonstrate a violation of the Eighth Amendment. Hearns, 413 F.3d at 1042. First, the plaintiff must "make an objective showing that the deprivation was ' sufficiently serious' to form the basis for an Eighth Amendment violation." Id. (quoting Wilson, 501 U.S. at 298). Second, the plaintiff must make a subjective showing that the prison officials in issue acted "with a sufficiently culpable state of mind." Id. A plaintiff must show that the prison officials in issue had actual knowledge of plaintiff's basic human needs and deliberately refused to meet those needs. Id. Finally, a plaintiff must also demonstrate that the prison officials in issue caused the deprivation about which he complains. See Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978).

Prison officials have a duty to take reasonable steps to protect inmates from physical abuse. See Farmer v. Brennan, 511 U.S. 825, 833 (1994); Hearns, 413 F.3d at 1040 (9th Cir.2005). To allege an Eighth Amendment violation for failure to protect, the prisoner must establish that prison officials were "deliberately indifferen[t]" to serious threats to the inmate's safety. See Farmer,...