The opinion
1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
10
11 WESLEY SMITH, individually; No. 2:21-cv-01859-MCE-CKD
STEPHANIE SMITH, individually; and
12 WESLEY SMITH and STEPHANIE
SMITH as successors-in-interest to
13 JEFFREY SMITH, MEMORANDUM AND ORDER
14 Plaintiffs,
15 v.
16 OFFICER M. WHEAT, et al.,
17 Defendants.
18
19 In bringing the present action, Plaintiffs Wesley Smith and Stephanie Smith, both
20 individually and as successors-in-interest to their deceased son, Jeffrey Smith
21 (hereinafter “Plaintiffs”) allege that eleven correctional officers at the High Desert State
22 Prison (“HDSP”) in Susanville, California, Defendants Wheat, Rickett, Byers, Ramos,
23 Zaun, Sevy, Mendoza, Villegas, Lee, Staub and Hicks (collectively “Defendants”)
24 violated Jeffrey’s constitutional rights under the Eighth and Fourteenth Amendments
25 when they failed to properly intervene and stop a stabbing attack against Jeffrey, who
26 was incarcerated at HDSP, by two other inmates. Plaintiffs’ currently operative First
27 Amended Complaint (“FAC”) alleges causes of action brought pursuant to 42 U.S.C.
28 § 1983 for violations of the Eighth and Fourteenth Amendments to the United States
1 Constitution. Presently before the Court is Defendants’ Motion to Dismiss Plaintiffs’
2 lawsuit, alleging that the causes of action pled fail to state viable claims for various
3 reasons under Federal Rule of Civil Procedure 12(b)(6).1 As set forth below,
4 Defendants’ Motion is DENIED.2
5
6 BACKGROUND3
7
8 According to the FAC, on October 11, 2019, Plaintiffs’ decedent, Jeffrey Smith
9 (“Jeffrey”) was walking around an inmate recreation yard at HDSP at about 11:30 a.m.
10 The yard was under the control and supervision of HDSP staff, including Defendants,
11 when two other inmates began to attack Jeffrey with manufactured stabbing instruments
12 approximately 10 inches in length. Jeffrey was purportedly initially able to deter the
13 attack for about 20 seconds before tripping and falling to the ground at which time the
14 inmates began to assault him with the prison-made knives. FAC, ECF No. 3, ¶ 14.
15 Within 8 seconds after the assault began in earnest, Defendants responded and
16 began to use chemical weapons in order to break up the altercation, at which time
17 Jeffrey was pleading with the correctional officers to intervene and help him fend off the
18 attackers. Id. at ¶¶ 15-17. When 11 Oleoresin Capsicum (“OC”) grenades and 12
19 applications of pepper spray failed to deter the assailants, Defendants ultimately
20 intervened with batons and separated Jeffrey from the two inmates. Id. at ¶¶ 15, 18.
21 The FAC asserts that this occurred approximately 45 seconds after Defendants arrived
22 at the location of the fight, which had started about 28 seconds beforehand. Jeffrey
23 succumbed from his stab wounds shortly after the altercation.
24
25 1 All further references to “Rule” or “Rules” are to the Federal Rules of Civil Procedure unless
otherwise indicated.
26
2 Because the Court determined that oral argument would not be of material assistance, this
Motion was submitted on the briefs in accordance with Local Rule 230(g).
27
3 This section is taken directly, and in some instances verbatim, from the allegations contained in
28 Plaintiffs’ FAC.
1 In now moving to dismiss, the defense argues that the above allegations on their
2 face fail to demonstrate any constitutional violation because “Defendants did not fail to
3 intervene or otherwise fail to reasonably respond to the attack.” Defs.’ Mot, ECF 11-1,
4 2:3-4. Alternatively, Defendants contend that they are entitled to qualified immunity in
5 any event because Plaintiffs cannot point to any “clearly established” constitutional right
6 that was violated under the circumstances.
7
8 STANDARD
9
10 On a motion to dismiss for failure to state a claim under Federal Rule of Civil
11 Procedure 12(b)(6), all allegations of material fact must be accepted as true and
12 construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins.
13 Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Rule 8(a)(2) “requires only ‘a short and plain
14 statement of the claim showing that the pleader is entitled to relief’ in order to ‘give the
15 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell
16 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41,
17 47 (1957)). A complaint attacked by a Rule 12(b)(6) motion to dismiss does not require
18 detailed factual allegations. However, “a plaintiff’s obligation to provide the grounds of
19 his entitlement to relief requires more than labels and conclusions, and a formulaic
20 recitation of the elements of a cause of action will not do.” Id. (internal citations and
21 quotations omitted). A court is not required to accept as true a “legal conclusion
22 couched as a factual allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
23 Twombly, 550 U.S. at 555). “Factual allegations must be enough to raise a right to relief
24 above the speculative level.” Twombly, 550 U.S. at 555 (citing 5 Charles Alan Wright &
25 Arthur R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004) (stating that the
26 pleading must contain something more than “a statement of facts that merely creates a
27 suspicion [of] a legally cognizable right of action”)).
28 ///
1 Furthermore, “Rule 8(a)(2) . . . requires a showing, rather than a blanket
2 assertion, of entitlement to relief.” Twombly, 550 U.S. at 555 n.3 (internal citations and
3 quotations omitted). Thus, “[w]ithout some factual allegation in the complaint, it is hard
4 to see how a claimant could satisfy the requirement of providing not only ‘fair notice’ of
5 the nature of the claim, but also ‘grounds’ on which the claim rests.” Id. (citing Wright &
6 Miller, supra, at 94, 95). A pleading must contain “only enough facts to state a claim to
7 relief that is plausible on its face.” Id. at 570. If the “plaintiffs . . . have not nudged their
8 claims across the line from conceivable to plausible, their complaint must be dismissed.”
9 Id. However, “a well-pleaded complaint may proceed even if it strikes a savvy judge that
10 actual proof of those facts is improbable, and ‘that a recovery is very remote and
11 unlikely.’” Id. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
12
13 ANALYSIS
14
15 As indicated above, both of Plaintiffs’ causes of action brought pursuant to
16 42 U.S.C. § 1983 are predicated upon constitutional violations. First, under the Eighth
17 Amendment, Plaintiffs aver that by “failing to physically intervene to quell the attack for
18 an extended period of time,” Defendants “consciously disregarded . . . substantial and
19 obvious risks of harm to decedent.” FAC, ¶ 32. To the contrary, according to Plaintiffs,
20 Defendants “ignored realistic opportunities to physically intervene in the attack and
21 otherwise unreasonably responded to the attack with ineffectual chemical weapons.” Id.
22 at ¶ 21. Second, under the Fourteenth Amendment, Plaintiffs allege that Defendants’
23 “conscious disregard of the likelihood of likelihood of substantial harm to decedent”
24 unlawfully deprived them of the companionship of their son in violation of their
25 substantive due process rights. Id. at ¶ 38.
26 Defendants contend that because their response to the attack was reasonable,
27 they cannot be held responsible under either constitutional theory. Moreover, according
28 to Defendants, even were a constitutional violation to be successfully asserted, they
1 should be entitled to qualified immunity in any event because the circumstances fail to
2 give rise to any “clearly established” constitutional right.
3 Under the Eighth Amendment, prison officials have a duty to protect prisoners
4 from violence at the hands of other prisoners. Farmer v. Brennan, 511 U.S. 825, 833
5 (1994): Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005). Two requirements
6 must be satisfied in order to demonstrate a violation in that regard, however. First, the
7 alleged deprivation has to be “objectively, sufficiently serious,” and secondly, the
8 conduct of the official must evince “deliberate indifference to inmate health and safety.”
9 Farmer, 511 U.S. at 834.
10 Defendants do not dispute that the alleged deprivation was sufficiently serious;
11 they could not realistically do so since the attack in question resulted in Jeffrey’s death.
12 Instead, Defendants contend that the facts as alleged by Plaintiffs themselves show that
13 no deliberate indifference could exist, since Defendants responded to the attack first by
14 using chemical agents and then by physically intervening through the use of batons to
15 separate the combatants within a period of a little over a minute after the altercation
16 began. As even Defendants concede, however, the issue really boils down to whether
17 they had a realistic opportunity to intervene and prevent Jeffrey’s death but failed to do
18 so. Defs.’ Mot, ECF No. 11-1, 4:14-16. If that opportunity was present, Defendants can
19 be liable under the Eighth Amendment. Cunningham v. Gates, 229 F.3d 1271, 1289-90
20 (9th Cir. 2000); Lolli v. County of Orange, 351 F.3d 410, 418 (9th Cir. 2003).
21 Plaintiffs argue in opposition to this Motion that any assessment in this regard is a
22 question of fact that cannot be decided in the context of the present pleadings challenge.
23 The Court agrees. According to the FAC, the attack occurred in a recreation yard
24 subject to supervision by HDSP staff, including Defendants. Defendants nonetheless
25 did not respond to the location of the fight for nearly thirty seconds. Then, although two
26 inmates were using 10-inch long prison-made staffing implements apparently directed to
27 Jeffrey’s head, Defendants allegedly waited 45 seconds before resorting to batons to
28 separate the inmates, despite Jeffrey’s pleas for help in fending off the attack. Whether
1 it was reasonable to use the non-lethal deterrent of chemical weapons in the face of
2 such a life-threatening attack before physically intervening with batons is unquestionably
3 not something this Court can determine on a motion to dismiss.
4 The result is no different on the other theories advanced by Defendants.
5 Defendants contend that Plaintiffs’ alleged substantive due process violation under the
6 Fourteenth Amendment is limited to official conduct that “shocks the conscience”. Defs.’
7 Mot, 9: 21-23, citing Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008). To show
8 such conduct, “actual deliberation” by an officer in deciding how to respond is required.
9 Id. Defendants argue that the timeframes involved here could not, as a matter of law on
10 the basis of the pleadings, have permitted the requisite deliberation. Again, for the same
11 reasons already articulated above, the Court disagrees. Whether or not waiting 45
12 seconds before escalating from chemical deterrents to physical intervention was
13 sufficient for deliberation, and “shocks the conscience” in the face of an attack by two
14 inmates using 10-inch knives, is unquestionably beyond the purview of the present
15 motion.
16 Finally, Defendants argue, at a minimum, that any violation under the facts of the
17 present matter gives rise to qualified immunity because a reasonable officer in the
18 position of Defendants could not have known that his conduct could have violated
19 “clearly established” constitutional rights. It is true that qualified immunity shields
20 government officials “from liability for civil damages insofar as their conduct does not
21 violate clearly established statutory or constitutional rights of which a reasonable person
22 would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). The rule permits
23 officials to undertake their responsibilities without fear they will be held liable for actions
24 that appeared reasonable at the time but were later held to violate statutory or
25 constitutional rights. Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982). Qualified immunity
26 consequently prohibits second-guessing life and death decisions by officers who must
27 make on-the-spot choices in dangerous situations, even if the situation could arguably
28 ///
1 have been handled differently. See, e.g., City and County of San Francisco, Calif. v.
2 Sheehan, 575 U.S. 600, 616-17 (2015).
3 Courts analyze qualified immunity under a two-prong test. First, it must be
4 discerned whether the alleged facts constitute a constitutional violation. Second, if such
5 a violation did occur, a court must find whether or not the constitutional right at issue was
6 clearly established at the time of the violation. Saucier v. Katz, 533 U.S. 194, 201
7 (2001). Plaintiffs bear the burden of demonstrating that the constitutional right in
8 question was clearly established at the time the official acted. May v. Baldwin, 109 F.3d
9 557, 561 (9th Cir. 1997).
10 Here, as stated above, it is unquestioned that Jeffrey had a clearly established
11 constitutional right given the Supreme Court’s recognition that prison officials have a
12 duty to protect prisoners from violence at the hands of other prisoners. Farmer v.
13 Brennan, 511 U.S. at 833. The question is whether the circumstances of this matter in
14 fact point to a constitutional violation, and as stated above that is not a determination the
15 Court can now make. This is not a situation where the officers were faced with an
16 instantaneous decision such that it would be improper, in hindsight, to question that
17 decision. To the contrary, the facts as alleged in the FAC indicate that Defendants had
18 some 45 seconds in which to decide whether to physically restrain the combatants in
19 whatever way necessary. As Plaintiffs observe, “45 seconds is a long time when one is
20 being attacked by two inmates with 10-inch blades.” Pls.’ Opp., ECF No. 13, 8:14-15.
21 ///
22 ///
23 ///
24 ///
25 ///
26 ///
27 ///
28 ///
1 CONCLUSION
2
3 Based on all the foregoing, Defendants’ Motion to Dismiss (ECF No. 11) is
4 | DENIED in its entirety.
5 IT |S SO ORDERED.
6 | Dated: September 1, 2022
KE
8 SENIOR UNITED STATES URTRICT JUDGE
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28