Opinion
2:19-cv-09061-MCS-PD
03-10-2021
DANIEL S. LUNA, Plaintiff, v. AVALOS, et al., Defendants.
Xavier Becerra Attorney General of California Giam M. Nguyen Supervising Deputy Attorney General Quyen V. Thai Deputy Attorney General Attorneys for Defendants J. Rose, J. Coleman and J. Williams Xavier Becerra Attorney General of California Giam M. Nguyen Supervising Deputy Attorney General Quyen V. Thai Deputy Attorney General, State Bar No. 316854 3, Attorneys for Defendants J. Rose, J. Coleman and J. Williams
Action Filed: October 22, 2020
Xavier Becerra Attorney General of California Giam M. Nguyen Supervising Deputy Attorney General
Quyen V. Thai Deputy Attorney General Attorneys for Defendants J. Rose, J. Coleman and J. Williams
Xavier Becerra Attorney General of California Giam M. Nguyen Supervising Deputy Attorney General Quyen V. Thai Deputy Attorney General, State Bar No. 316854 3, Attorneys for Defendants J. Rose, J. Coleman and J. Williams
DEFENDANTS' NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF'S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES
Honorable Patricia Anne Donahue Judge
TO PLAINTIFF, DANIEL S. LUNA, IN PRO SE:
PLEASE TAKE NOTICE that Defendants J. Rose, J. Coleman and J. Williams (collectively "Defendants") hereby move the Court to dismiss Plaintiff Daniel Luna's Third Amended Complaint ("TAC"). Due to Plaintiffs status as an inmate incarcerated at California State Prison at Los Angeles County, no hearing is requested.
The Motion is made under Federal Rules of Civil Procedure 8 and 12(b)(6) on the grounds that the TAC fails to comply with the pleading requirement, and it fails to state sufficient facts establishing an Eighth Amendment violation.
This Motion is based on this Notice and Motion, the accompanying Memorandum of Points and Authorities, all pleadings and papers on file in this action, such other matters as the Court may judicially notice, and such additional argument as may be presented and deemed appropriate by the Court.
Defendants did not meet and confer with Plaintiff prior to filing this motion because Plaintiff “is appearing in pro se, is in custody, and is not an attorney.” C.D. Cal. L.R. 16-12(c); see also C.D. Cal. L.R. 7-3 (exempting cases under Local Rule 16-12 from meet and confer requirements).
MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION
Plaintiff Daniel Luna (“Plaintiff”) brings this action in pro se under 42 U.S.C. § 1983 for an alleged Eighth Amendment violation that occurred at California State Prison, Los Angeles County (“LAC”). Defendants J. Rose, J. Coleman and J. Williams are sued in the individual capacity only. (TAC at 2.) The instant Motion moves to dismiss the TAC on the grounds that the TAC fails to comply with the pleading requirements of Federal Rule of Civil Procedure 8, and it fails to state sufficient facts to support a § 1983 claim.
SUMMARY OF PLAINTIFF'S ALLEGATION
Plaintiff alleges that on October 8, 2019, Defendant J. Coleman twisted Plaintiff's arm, pushed Plaintiff to the ground and punched Plaintiff in the face. (TAC at 5.) Plaintiff also alleged that Defendant J. Williams punched Plaintiff in the back with a closed fist, and Defendant J. Rose “used excessive force” in applying mechanical restraints to Plaintiff's legs. Ibid. Plaintiff does not allege any injuries resulted from these actions. See Id. at 5-6. Plaintiff also does not allege what occurred prior to the Defendants' application of force, during, or after the alleged use of force. See generally TAC.
LEGAL STANDARD
I. Failure to Comply With Federal Rule of Civil Procedure 8.
Federal Rule of Civil Procedure 8(a)(2) requires that a complaint contain “a ‘short and plain statement of the claim showing that the pleader is entitled to relief,' in order to ‘give the defendant fair notice of what the … claim is and the grounds upon which it rests.'” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991) (complaint must give defendants fair notice of the claims against them). A pleading that “says too little” or “too much” risks running afoul of Rule 8. Knapp v. Hogan, 738 F.3d 1106, 1108 (9th Cir. 2013) (emphasis in original). A complaint that is “argumentative, prolix, replete with redundancy… [a]nd consists largely of immaterial background information” is subject to dismissal. McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996).
Lastly, the Court has discretion to dismiss for failure to comply with this rule even when the complaint is not “wholly without merit.” McHenry, 84 F.3d at 1179; see also Hearns v. San Bernardino Police Dep't, 530 F.3d 1124, 1129 (9th Cir. 2008) (“Federal Rule of Civil Procedure 41(b) authorizes a district court to dismiss a complaint with prejudice for failure to comply with Rule 8(a).”) (citing Nevijel v. N. Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981)).
II. Failure to State a Claim Under Federal Rule of Civil Procedure 12(b)(6).
Under Rule 12(b)(6), failure to state a claim upon which relief can be granted is grounds for dismissal. Fed.R.Civ.P. 12(b)(6). A dismissal is proper where there is either a “lack of cognizable legal theory” or “the absence of sufficient facts alleged under a cognizable theory.” Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). To avoid dismissal, a complaint must contain “enough facts to state a claim for relief that is plausible on its face.” Twombly, 550 U.S. at 570. To show that the plaintiff is entitled to relief, the allegations contained in the complaint must permit the court to infer more than the possibility of misconduct. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555) (“The plausibility standard is not akin to ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.”).
Although the court must construe all “factual allegations set forth in the complaint… as true and … in the light most favorable” to the plaintiff, Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001), a court need not blindly accept conclusory allegations, unwarranted deductions of fact, and unreasonable inferences. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). Further, while the court should liberally construe pro se complaints, a court “may not supply essential elements of the claim that were not initially pled.” Ivey v. Bd. Of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
ARGUMENT
I.The TAC Failed to Comply With The Pleading Requirement of Federal Rule of Civil Procedure 8.
Plaintiff's TAC violates the pleading requirement of Rule 8 because it says too little concerning the Eighth Amendment claim against Defendants. The three sentences in the factual support of the pleading fail to give each defendant fair notice of the grounds upon which Plaintiff's claims rest. Plaintiff provided little details about the alleged wrongdoings - not even the location of which the alleged use of excessive force occurred, or what events precipitated or preceded the alleged used of force. Moreover, Plaintiff alleged no facts regarding any injuries received, or how each Defendant is liable for the injury.
The pleading deficiency is most apparent in Plaintiff's allegation against Defendant Rose. The TAC contains no factual allegations regarding how Defendant Rose “used excessive force” in applying mechanical restraints to Plaintiff's legs. (TAC at 5.) The allegation itself was conclusory, without any facts showing how the application of mechanical restraints to Plaintiff's legs constituted malicious and sadistic use of force for the purpose of causing harm. See Ashcroft, 556 U.S. at 678 (““[T]he pleading standard of Rule 8 . . . demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”); see also Mogan v. Los Angeles Sheriff's Dep't, No. 2:18-cv-00276 JLS SHK, 2018 WL 6185973, at *3 (C.D. Cal. Aug. 31, 2018) (dismissing plaintiff's complaint for failure to comply with Rule 8 because plaintiff alleges only that defendant attacks him but fails to describe how the attack occurred or the severity of force used).
Without any facts regarding the circumstances around the alleged use of excessive force, the TAC simply fails to give Defendants fair notice of the claims against them, and should be dismissed.
II. Moreover, The TAC Failed to Allege Sufficient Facts to Establish An Excessive Force Claim.
A. Legal Standard for Excessive Force.
To establish an Eighth Amendment excessive force claim, a plaintiff must allege that the use of force was an “unnecessary and wanton infliction of pain.” Jeffers v. Gomez, 267 F.3d 895, 910 (9th Cir. 2001). The central question in an excessive force claim-whether force used by prison officials was in violation of the Eighth Amendment-depends on whether “force was applied in good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). To determine whether the force used was excessive, courts consider five factors: the need to use force, the relationship between that need and the amount of force used, the threat reasonably perceived by prison officials, any effort made to temper the forceful response, and the extent of the injury suffered by the inmate. Id. at 7.
B. Plaintiff Alleged Insufficient Facts Establishing A Violation of Eighth Amendment Claim.
Here, Plaintiff alleged that a series of force occurred but failed to provide the necessary context. Without context, it would be impossible to determine whether force was “applied in good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” See Hudson, 503 U.S. at 1. For instance, the TAC offered no allegations indicating whether there was a need to use force nor whether the amount of force used was disproportionate to the need. Plaintiff does not even allege that the use of force was unprovoked. See TAC. Further, nothing in the TAC gives an inference that any threats perceived by Defendants were unreasonable, or that they made no attempt to temper the alleged forceful response. In fact, many courts in this circuit consistently dismissed similar complaints that focus solely on the force used and provide no factual allegations regarding the surrounding circumstances. See Preciado v. Salas, No. 1:13-xv-0390-LJO-BAM, 2014 WL 127710, at *4 (E.D. Cal. Jan. 14, 2014) (dismissing the complaint for failure to state a claim because plaintiff provides no facts regarding how he incurred his injuries, the specific events immediately leading up to the use of force, the amount and duration of the force applied and his response to the force.); Burghardt v. Borges, No. 117-cv-01433-AWI-GSA-PC, 2021 WL 260010, at *5 (E.D. Cal. Jan 26, 2021) (plaintiff's allegations that the defendants “pepper sprayed and battered” plaintiff during escort is insufficient to state an Eighth Amendment violation because they do not explain the circumstances of the escort, where and why it happened, how plaintiff acted, the extent of the force used, what injuries were caused by the force, or how each of the defendant personally acted.); see Simmons v. Aranda, No. C 11-6190 SBA PR, 2013 WL 663922, at *2 (N.D. Cal. Feb. 22, 2013) (to state an excessive force claim, plaintiff must, at minimum, include allegations describing the incident in which force was used).
Further, Plaintiff alleged no injuries, not even mental or emotional distress.Although the absence of injury does not end the excessive force inquiry, “the extent of injury suffered by an inmate is one factor that may suggest ‘whether the use of force could plausibly have been thought necessary' in a particular situation.” Hudson, 503 U.S. at 9 (quoting Whitley v. Albers, 475 U.S. 312 at 321 (1986)). The absence of injury in this case, without facts indicating that force used was especially egregious, indicates that if any force was exerted, it was de minimis and thus not actionable. See Bishop v. San Quentin State Prison Work Place, No. C 01-3411 SI (PR), 2002 WL 1767416, at *4 (N.D. Cal. July 29, 2002) (“[A] de minimis injury often reflects a de minimis use of force”); see also Hudson, 503 U.S. at 9-10 (quoting Whitley, 475 U.S. at 327) (de minimis use of force does not violate the Constitution unless it is “repugnant to the conscience of mankind”).
Plaintiff included in his First Amended Complaint (“FAC”) a medical report of injury dated October 3, 2019. (ECF No. 13 at 16). This incident is alleged to have occurred on October 8, 2019, five days after the medical report; thus, the medical report is not relevant to this analysis.
Plaintiff's requests for relief include, aside from monetary and punitive damages, “administrative relief to [Plaintiff] from prison due to these officer's [sic] mental anguish.” (TAC at 6). Defendants understand the phrase “mental anguish” to describe the actions of the officers, and not Plaintiff's injuries, as Plaintiff had previously indicated that Defendants' actions were due to “uncontrollable rage, ” (TAC at 2). To the extent that Plaintiff intended to claim psychological injuries, such injuries standing alone are generally insufficient to support a claim, absent something more than de minimis physical harm. See Oliver v. Keller, 289 F.3d 623, 628 (9th Cir. 2002).
In sum, Plaintiff's TAC constitutes nothing other than an account of force allegedly used on him. Nothing in the TAC can be construed to infer that such force was excessive because Plaintiff provides no context for the alleged incident. The force described - pushes and punches - is not so “repugnant to the conscience of mankind” that the force alone could constitute a violation of the Eighth Amendment. Moreover, Plaintiff's statement that Defendant Rose “used excessive force” is conclusory, and the Court need not afford it any weight. See Sprewell, 266 F.3d. at 988. Thus, the TAC must be dismissed for failure to state a claim pursuant to Federal Rules of Civil Procedure Rule 12(b)(6).
III. The Court ShouldDeny Leave to Amend.
Although leave to amend is often freely given when justice so requires, a district court may deny leave to amend where a plaintiff repeatedly fails to cure deficiencies by amendments previously allowed. McGlinchy v. Shell Chemical Co., 845 F.2d 802, 809-10 (9th Cir. 1988) (holding that district court did not abuse its discretion in denying plaintiffs leave to file a second amended complaint adding causes of action where it had failed to cure deficiencies in prior amended complaints); Dutciuc v. Meritage Homes of Arizona, Inc., 462 Fed.Appx. 658, 660 (9th Cir. 2011) (no abuse of discretion when the district court dismissed plaintiff's third amended complaint without leave to amend). In assessing whether to grant leave to amend, courts can consider five factors: bad faith, undue delay, prejudice to the opposing party, futility of amendment, and whether the party was previously granted an amendment to his pleading. Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir. 2004). A district court's discretion to deny leave to amend is especially broad when it has previously granted leave to amend. Chodos v. West Publ'g Co., 292 F.3d 992, 1003 (9th Cir. 2002). Accordingly, courts routinely deny leave to amend based solely on a party's repeated failure to cure deficiencies by previous amendments. Burghardt, 2021 WL 260010, at *7-8 (dismiss complaint with prejudice after plaintiff failed to cure the deficiencies twice); Tucker v. Stewart, 72 Fed.Appx. 597, 598 (9th Cir. 2003) (affirming district court's dismissal of plaintiff's claim with prejudice after plaintiff failed to cure pleading deficiencies three times).
Here, despite ample opportunities to cure the deficiencies, Plaintiff still failed to do so. In the FAC, Plaintiff alleged no supporting facts regarding his claims. See FAC. Consequently, the Court dismissed Plaintiff's FAC with leave to amend because the FAC failed to plead factual allegations “such as when the incident occurred, how any force was applied, or any other facts that would show in a non-conclusory manner that Defendants used force ‘maliciously and sadistically for the very purpose of causing harm' in violation of the Eighth Amendment.” (ECF No. 16 at 5). The Court instructed Plaintiff to file a Second Amended Complaint by March 3, 2020, in which he must “set forth clearly the sequence of events giving rise to the claims for relief” and to “allege with sufficient specificity … how [each defendant's] conduct violated Plaintiff's civil rights.” Id. at 7. Two months after the deadline, Plaintiff filed the Second Amended Complaint (“SAC”), and again, failed to cure the deficiencies noted.
In the SAC, Plaintiff alleged that on an unspecified date in October, 2019, Defendant Coleman asked him to submit to mechanical restraints and then “faked placing” the restraints on him. (SAC at 5). Plaintiff sued Defendants Williams and Rose in the same complaint, but alleged no facts regarding their actions. Id. at 3 & 5. In the order dismissing the SAC, the Court once again instructs Plaintiff to “set forth clearly the sequence of events” and to “allege with sufficient specificity what each defendant did and how that individual's conduct violated Plaintiff's civil rights.” (ECF No. 24 at 4). Yet, as discussed above, the TAC still fails to allege with any specificity how each Defendant's conduct violated Plaintiff's rights.
Plaintiff was given not one but two opportunities to cure the pleading deficiencies yet repeatedly failed to do so. The judicial system is not a learning forum, and Plaintiff is not a student-the Court has no obligation to allow Plaintiff infinite opportunities to improve his filing. Accordingly, the Court should dismiss Plaintiff's TAC without leave to amend.
CONCLUSION
Based on the foregoing, Plaintiff's TAC should be dismissed because it fails to state a claim. Further, Plaintiff should be denied leave to amend due to repeated failure to cure deficiencies.
CERTIFICATE OF SERVICE
I hereby certify that on March 10, 2021, I electronically filed the following documents with the Clerk of the Court by using the CM/ECF system:
DEFENDANTS' NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF'S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES
Participants in the case who are registered CM/ECF users will be served by the CM/ECF system.
I am employed in the Office of the Attorney General, which is the office of a member of the California State Bar at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placed in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that same day in the ordinary course of business.
I further certify that some of the participants in the case are not registered CM/ECF users. On March 10, 2021, I have caused to be mailed in the Office of the Attorney General's internal mail system, the foregoing document(s) by First-Class Mail, postage prepaid, or have dispatched it to a third party commercial carrier for delivery within three (3) calendar days to the following non-CM/ECF participants:
Daniel S. Luna, CDCR# BB2094
CSP - Los Angeles CountyFacility D
P.O. Box 4670
Lancaster, CA 93539-4670
Pro Se
I declare under penalty of perjury under the laws of the State of California and the United States of America the foregoing is true and correct and that this declaration was executed on March 10, 2021, at Los Angeles, California.
[PROPOSED] ORDER ON DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S THIRD AMENDED COMPLAINT
Defendants J. Rose, J. Coleman and J. Williams (collectively, “Defendants”) have submitted a motion to dismiss requesting dismissal of the action pursuant to Federal Rules of Civil Procedure 8 and 12(b)(6). The Motion argues that Plaintiff failed to conform to the pleading standard and failed to state a claim.
IT IS HEREBY ORDERED THAT the motion is granted in full, and the action is dismissed in its entirety.