(PC) Nino v. Munoz

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8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

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11 JOE NINO, Case No. 1:20-cv-01722-ADA-CDB (PC)

12 Plaintiff,

FINDINGS AND RECOMMENDATIONS

13 v. TO GRANT DEFENDANT SULLIVAN’S

MOTION TO DISMISS

14 J. MUNOZ, et al.,

(Doc. 48)

15 Defendants.

14-DAY OBJECTON DEADLINE

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18 Plaintiff Joe Nino, appearing through counsel, brought this civil rights action pursuant to

19 42 U.S.C. § 1983.

20 I. BRIEF PROCEDURAL BACKGROUND

21 On June 21, 2022, the previously assigned magistrate judge issued an Order Finding

22 Service of Third Amended Complaint Appropriate and Directing Service. (Doc. 34.) Specifically,

23 the Court directed that Defendants Carrillo, Escarcega, Harris, Masferrer, Munoz, and Sullivan be

24 served. (Id. at 2.)

25 On August 22, 2022, Defendant Sullivan filed a motion to dismiss Plaintiff’s third

26 amended complaint. (Doc. 38.) That same date, Defendants Carrillo, Escarcega, Harris, Masferrer

27 and Munoz filed an answer to the third amended complaint. (Doc. 39.)

1 On September 12, 2022, Plaintiff filed an opposition to Sullivan’s motion to dismiss (Doc.

2 41) and Sullivan replied on September 26, 2022 (Doc. 42).

3 On October 6, 2022, this action was reassigned to the undersigned as magistrate judge.

4 (Doc. 43.)

5 On February 21, 2023, the Court issued Findings and Recommendations to Grant in Part

6 and Deny in Part Defendant Sullivan’s Motion to Dismiss. (Doc. 44.) Specifically, the Court

7 found Plaintiff failed to allege sufficient facts to state a claim for supervisory liability against

8 Defendant Sullivan. (Id. at 12-18.) The Court recommended Defendant Sullivan’s motion be

9 granted in part and denied in part, allowing Plaintiff a final opportunity to amend his complaint

10 concerning his cause of action against Defendant Sullivan. (Id. at 18-19.)

11 On June 1, 2023, District Judge Ana de Alba issued her Order Adopting Findings and

12 Recommendations to Grant in Part and Deny in Part Defendant Sullivan’s Motion to Dismiss.

13 (Doc. 45.) Plaintiff was directed to file his fourth amended complaint within 30 days. (Id. at 2.)

14 Plaintiff filed a fourth amended complaint on June 30, 2023. (Doc. 46.)

15 On July 13, 2023, Defendants Carrillo, Escarcega, Harris, Masferrer and Munoz filed an

16 answer to the fourth amended complaint. (Doc. 47.) That same date, Defendant Sullivan filed a

17 Motion to Dismiss Plaintiff’s Fourth Amended Complaint. (Doc. 48.) Plaintiff filed an opposition

18 (Doc. 49) and Defendant replied thereto (Doc. 50).

19 Defendant Sullivan’s motion to dismiss is fully briefed and has been assigned to this

20 Court for findings and recommendations.

21 II. LEGAL STANDARDS

22 Motions to Dismiss

23 A motion to dismiss under Rule 12(b)(6) “tests the legal sufficiency of a claim.” Navarro

24 v. Block, 250 F.3d 729, 732 (9th Cir. 2001). In resolving a 12(b)(6) motion, the Court’s review is

25 generally limited to the “allegations contained in the pleadings, exhibits attached to the complaint,

26 and matters properly subject to judicial notice.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519

27 F.3d 1025, 1030-31 (9th Cir. 2008) (internal quotation marks & citations omitted). Dismissal is

1 under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.

2 1988) (citation omitted).

3 “To survive a motion to dismiss, a complaint must contain sufficient factual matter,

4 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556

5 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In order to

6 survive dismissal for failure to state a claim, a complaint must contain more than a “formulaic

7 recitation of the elements of a cause of action;” it must contain factual allegations sufficient to

8 “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. “The pleading

9 must contain something more ... than ... a statement of facts that merely creates a suspicion [of] a

10 legally cognizable right of action.” Id.

11 The Court “accept[s] as true all well-pleaded allegations of material fact, and construe[s]

12 them in the light most favorable to the non-moving party.” Daniels-Hall v. Nat’l Educ. Ass’n, 629

13 F.3d 992, 998 (9th Cir. 2010) (citation omitted). A motion to dismiss for failure to state a claim

14 should not be granted unless it is “clear” that plaintiff can prove no set of facts in support of the

15 claim that would entitle him to relief. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)

16 (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). To the extent the plaintiff can cure deficient

17 pleadings by alleging additional facts, leave to amend should be granted. Cook, Perkiss and

18 Liehe, Inc. v. Northern Cal. Collection Serv., Inc., 911 F.2d 242, 247 (9th Cir. 1990) (citations

19 omitted).

20 Section 1983 Claims

21 An individual may bring an action for the deprivation of civil rights pursuant to 42 U.S.C.

22 § 1983 (“Section 1983”), which “is a method for vindicating federal rights elsewhere conferred.”

23 Albright v. Oliver, 510 U.S. 266, 271 (1994). In relevant part, Section 1983 provides:

24 Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory... subjects, or causes to be

25 subjected, any citizen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights, privileges, or

26 immunities secured by the Constitution and laws, shall be liable to

the party injured in an action at law, suit in equity, or other proper

27 proceeding for redress...

1 42 U.S.C. § 1983. To state a cognizable claim under Section 1983, a plaintiff must allege (1) the

2 deprivation of a constitutional right and (2) a person who committed the alleged violation acted

3 under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Williams v. Gorton, 529 F.2d

4 668, 670 (9th Cir. 1976). A plaintiff must allege a specific injury was suffered and show causal

5 relationship between the defendants’ conduct and the injury suffered. See Rizzo v. Goode, 423

6 U.S. 362, 371-72 (1976). Thus, Section 1983 “requires that there be an actual connection or link

7 between the actions of the defendants and the deprivation alleged to have been suffered by the

8 plaintiff.” Chavira v. Ruth, No. 1:11-cv-01718-MJS (PC), 2012 WL 1328636, at *2 (E.D. Cal.

9 Apr. 17, 2012). A person deprives another of a constitutional right “if he does an affirmative act,

10 participates in another’s affirmative acts, or omits to perform an act which he is legally required

11 to do so that it causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d

12 740, 743 (9th Cir. 1978).

13 Supervisory Personnel

14 Liability may not be imposed on supervisory personnel under Section 1983 based on the

15 theory of respondeat superior, as each defendant is only liable for his or her own misconduct.

16 Iqbal, 556 U.S. at 1948-49; Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009). When

17 a defendant holds a supervisory position, the causal link between such defendant and the claimed

18 constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th

19 Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). A plaintiff must allege facts

20 sufficient to determine that the supervisory official “participated in or directed the violations, or

21 knew of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th

22 Cir. 1989). See Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (“a plaintiff may state a claim

23 against a supervisor for deliberate indifference based upon the supervisor’s knowledge of and

24 acquiescence in unconstitutional conduct by his or her subordinates”); see also Anderson v.

25 Hansen, No. 1:09-cv-01924-LJO-MJS (PC), 2013 WL 4676212, at *3 (E.D. Cal. Aug. 30, 2013)

26 (“[a] prison official may be held liable for failing to protect an inmate from a prison guard if he

27 knew of an excessive risk to inmate health or safety posed by the … prison guard and disregarded

1 2013 WL 6070044 (E.D. Cal. Nov. 14, 2013). Claims of the general responsibility of the warden

2 for prison operations “are insufficient to establish Section 1983 liability.” Brown v. Perez, No.

3 EDCV 14-2421-CJC (JEM), 2016 WL 7975264, at *6 (C.D. Cal. Dec. 16, 2016), adopted by

4 2017 WL 354168 (C.D. Cal. Jan. 24, 2017).

5 III. PLAINTIFF’S CLAIM AGAINST DEFENDANT SULLIVAN

6 The Court focuses on the third cause of action from Plaintiff’s fourth amended complaint,

7 asserting an Eighth Amendment claim against Defendant Sullivan alone. (See Doc. 46 at 17-22.)

8 Plaintiff’s factual recitations (id. at 4-11) do not involve Defendant Sullivan; thus, the Court

9 elects to forego their recitation here.1 The third cause of action states, in relevant part:

10 68. Defendant Warden W.J. Sullivan violated Plaintiff’s right to be

free from cruel and unusual punishment guaranteed to him by the

11 Eight [sic] Amendment to the United States Constitution by his

failure to adequately train custody staff in the appropriate use of force

12 and criminal activity; and by his failure to supervise the other

Defendants and by his failure to investigate the incident or discipline

13 the other defendants.

14 69. Plaintiff’s claims against Defendant Sullivan are based on his

maintaining and permitting the practices, policies and customs under

15 CDCR guidelines and procedures for correctional facilities. In

addition, Defendant Sullivan was responsible for the supervision,

16 training and hiring of persons and employees working within CCI

Tehachapi including correctional officers, medical staff, mental

17 health staff and other employees within the CCI facility. In

particular, Plaintiff is informed and believes and based thereon

18 alleges that Defendant Sullivan, as the official policy maker for CCI

Tehachapi, was aware of widespread beatings and use of excessive

19 force in CCI Tehachapi.

20 70. Specifically, and on information and belief, Defendant Sullivan

had actual notice of the widespread beatings at CCI through several

21 sources. Defendant Sullivan was CCI’s hiring authority who is

required to impose discipline on those correctional officers that

22 served below him. In his supervisory capacity and role as Warden,

Sullivan was required to review, and did review, a multitude of

23 inmate incident documentation related to abuses against CCI inmates

and the use of excessive force against those inmates by CCI

24 correctional officers: inmate incident reports, 602 grievances, use of

force reviews and reports under Title 15, medical reports, emergency

25 room data, Office of Internal Affairs investigations into CDCR

personnel misconduct, and OIG reports. In particular, Defendant

26 Sullivan was keenly aware of the systemic abuse and violence of his

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1 In its February 2023 Findings and Recommendations concerning Sullivan’s prior motion to dismiss, the

Court recited Plaintiff’s factual allegations. (See Doc. 44 at 4-7.) To the extent specific factual allegations

1 subordinate officers at CCI because the July 2018 OIG Report

entitled “Monitoring the Use of Force,” made it abundantly clear that

2 those systematic abuses of inmates by the CCI correctional officers

and assaults against inmates at that facility remained widespread,

3 continuous and sometimes deadly.

4 71. The July 2018 OIG Report, which was based upon data

throughout the entire CDCR system between July 1, 2017, and

5 December 31, 2017, specially identified 3,709 use of force incidents

in that six-month period. Those 3,709 incidents involved 11,046

6 “applications of force” (baton beatings, use of chemical agents,

physical holds, less-lethal projectiles, tasers and firearms. Forty-

7 eight percent (48%) of the 3,709 use of force incidents were found to

violate CDCR departmental policies (1,774 incidents). The OIG

8 Report revealed that 38 use of force incidents occurred during that

six-month period at one of CCI’s facilities alone (Facility A), second

9 highest number behind Cal State Prison, Sacramento. In July 2017,

CDCR implemented its officer training program for correctional

10 officers and staff known as multiple interactive learning objective

(MILO) simulator designed to educate and train officers to counter

11 the escalating occurrences of abuse and excessive force against

inmates, was deployed with mixed results. Defendant Sullivan,

12 aware of the increasing dangers his officers posed to the CCI

inmates, failed to adequately embrace the training modules and took

13 no steps to curtail the pervasive beating incidents, up to at least

December 31, 2018, then again on July 29, 2019, when Plaintiff was

14 senselessly beaten by the named Individual Defendants herein.

Because Defendant Sullivan was aware of the ongoing excessive use

15 of force incidents due to, and the result of, his role of being in charge

and his duty to read all of the above referenced materials, he was on

16 actual notice, or at least constructive notice, of the CCI officers’

abuses which permeated the facility. Defendant Sullivan was

17 particularly knowledgeable and aware of Defendant F. Harris’

propensity to violate CDCR departmental policy due to Harris’

18 involvement in several excessive [use] of force incidents which

resulted in significant injuries to inmates and legal and financial

19 repercussions to the State of California. Defendant Sullivan’s

inaction allowed Harris to act with impunity.

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72. Instead of taking proper steps to discipline Individual Defendants

21 and named Doe Defendants, Defendant Sullivan condoned,

encouraged, fostered and/or ratified the unlawful conduct of said

22 Defendants. Plaintiff is further informed and believes and thereon

alleges that Defendant Sullivan ratified the Individual Defendants

23 and Doe Defendants’ unconstitutional conduct towards Plaintiff.

Defendant Sullivan is sued in official supervisory capacity for his

24 own culpable action or inaction in the training, supervision or control

of his subordinates, or for his acquiescence in the constitutional

25 deprivations which this amended Complaint alleges, or for the

conduct that showed a reckless or callous indifference to the rights

26 of others.

27 73. Defendant Sullivan acted under color of state law, and he knew

or should have known that his conduct, attitude and actions, or lack

1 Despite this knowledge, Defendant Sullivan failed to take reasonable

steps to protect Plaintiff and to ensure his constitutional right to be

2 free from cruel and unusual punishment while he was in Defendants’

care and custody at Tehachapi.

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74. The actions and conduct of Defendant Sullivan demonstrate

4 deliberate indifference to Plaintiff’s well-being and constitutes

violations of Plaintiff’s Eight [sic] Amendment rights under the

5 United States Constitution.

6 75. As a proximate result of the Defendants’ failure to ensure

Plaintiff’s right to be free from cruel and unusual punishment while

7 incarcerated at Tehachapi, Plaintiff has suffered, is suffering, and

will continue to suffer irreparable harm.

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76. As a direct and foreseeable result of the Defendants’ violations

9 of Plaintiff’s Eight [sic] Amendment rights, Plaintiff has suffered, is

suffering and will continue to suffer physical injuries in the form of

10 damage to his left eye, loss of eyesight, headaches, problems with

balance, and other injuries.

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77. As a direct and foreseeable result of the Defendants’ violations

12 of Plaintiff’s Eighth Amendment rights, Plaintiff has suffered, is

suffering and will continue to suffer injuries in the form of pain and

13 suffering, shame, humiliation, degradation, emotional distress,

embarrassment, mental distress and other injuries.

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15 (Doc. 46 at 17-22.)

16 IV. DISCUSSION

17 The Court sets forth the parties’ positions before moving to an analysis of Defendant’s

18 motion.

19 Defendant Sullivan’s Motion (Doc. 48)

20 Defendant contends Plaintiff’s fourth amended complaint suffers the same problems his

21 third amended complaint suffered; that is, it fails to plead facts regarding policies, practices, and

22 customs that Defendant promulgated, fails to plead facts regarding Defendant’s training and

23 hiring of subordinates, and fails to plead any facts to show that Defendant acquiesced to or

24 condoned the alleged unconstitutional conduct of subordinates. Further, Defendant asserts he is

25 entitled to qualified immunity.

26 Specifically, Defendant argues Plaintiff’s allegations regarding policies, practices, and

27 customs Defendant purportedly promulgated are conclusory and lack any supporting facts. Thus,

the allegations are insufficient to state a claim. Moreover, Plaintiff fails to plead “any facts at all

1 regarding how Sullivan conducted training, or how the training is related to Plaintiff’s injury,

2 making the allegation insufficient to state a claim.”

3 Defendant argues the only new allegations in Plaintiff’s fourth amended complaint are

4 found in paragraphs 70 and 71. Defendant notes Plaintiff’s assertions he “reviewed a ‘multitude’

5 of documents (inmate incident reports, 602 grievances, etc.)” and a July 2018 OIG report, that he

6 “’failed to adequately embrace’ CDCR’s multiple interactive learning objection (MILO)

7 training,” and that Defendant “’was particularly knowledgeable and aware of Defendant F.

8 Harris’ propensity to violate CDCR departmental policy due to Harris’ involvement in several

9 excessive sue [sic] of force incidents.’” Defendant argues Plaintiff has failed to state a claim

10 because Plaintiff did not specifically identify any incidents to support the legal conclusion

11 Defendant reviewed multiple documents concerning inmate incidents, grievances, or emergency

12 room data. The allegations do not “specifically identify any incident, when the incident happened,

13 and when Sullivan knew about it, or what his response was.” Therefore, Defendant argues the

14 allegations do not show he had the required knowledge, or that he condoned any unconstitutional

15 conduct.

16 Defendant alleges Plaintiff’s assertions regarding the July 2018 OIG report also fail. He

17 contends the report does not show any “‘systemic abuse’” because the 3,709 use of force

18 incidents between July and December 2017, of which 38 occurred in Facility A at CCI, do “not

19 state that any of those incidents involved excessive force, let alone abuse.” Nor does the report’s

20 finding that “‘forty-eight percent (48%) of the 3,709 use of force incidents [throughout CDCR]

21 were found to violate CDCR departmental policies’” equate to a showing that inmates were

22 abused or that excessive force was used. Additionally, the report’s reference to forty-eight percent

23 does not refer to CCI specifically. Defendant contends Plaintiff’s fourth amended complaint

24 “does not specifically identify any incident of excessive force at CCI, when the incident

25 happened, when Sullivan knew about it, or what his response was.”

26 Defendant contends “Plaintiff’s mention of the OIG report is an apparent attempt to mimic

27 the complaint in Starr v. Baca.” In Starr, defendant Baca “received a ‘findings letter’ from the

1 violations including abuse of inmates by sheriff’s deputies’ at the jail.” Unlike the findings letter

2 at issue in Starr, the “July 2018 OIG report did not state that inmates’ constitutional rights had

3 been violated or that there was a pattern of abuse at CCI.” Further, Defendant argues that in Starr

4 there was more involved than the findings letter alone. In Starr, a memorandum of understanding

5 with the Department of Justice required Baca and the county to correct continuous violations,

6 reports from special counsel to the sheriff’s office found inmate abuse and increasing levels of

7 inmate violence, and ten specific instances of violence against inmates leading up to the incident

8 involving Starr, were also at issue. Defendant argues no such allegations were made here.

9 Next, Defendant contends Plaintiff’s assertion that he knew of Defendant “Harris’

10 ‘propensity to violate CDCR departmental policy’” is flawed because the fourth amended

11 complaint pleads no facts showing any specific incidents involving Harris, when they happened,

12 when Sullivan knew about the incidents, or how he may have responded. Defendant argues it is

13 “simply speculat[ion] that Sullivan must be at fault because he was the warden,” and thus,

14 Plaintiff fails to state a claim.

15 Defendant maintains Plaintiff’s assertion that Defendant failed to “‘adequately embrace

16 the [MILO] training modules’” falls short because the “‘failed to embrace’ statement is simply a

17 vague, legally meaningless conclusion without any factual support.” Defendant asserts Plaintiff

18 has alleged no facts as to Defendant’s training, nor any facts connecting his conduct to Plaintiff.

19 Further, Defendant contends Plaintiff’s allegations do not connect Defendant to Plaintiff’s

20 alleged harm. He states there “is no allegation of any action or failure to act by Sullivan that

21 caused either alleged incident,” and thus has failed to state a claim.

22 Finally, Defendant argues he is entitled to qualified immunity. He asserts it was not

23 clearly established in 2018 through 2019 that being “‘aware of the ongoing excessive use of force

24 incidents’” and acting in an “unspecified way to ‘ratify’ the supposedly unconstitutional conduct

25 of his subordinates,” would violate the constitution. He contends the “opposite was true.” Thus,

26 “[b]ecause no case law clearly established that every reasonable person would have known that

27 Sullivan’s alleged conduct was unconstitutional, Sullivan is entitled to qualified immunity.”

1 Defendant asks this Court to dismiss the claim against him, with prejudice, because

2 Plaintiff cannot cure the factual deficiencies, making amendment futile.

3 Plaintiff’s Opposition (Doc. 49)

4 Plaintiff contends the allegations set forth in the fourth amended complaint “do not merely

5 recite ‘the elements of the claim,’” as Defendant argues. Rather, the allegations in paragraph 70

6 are sufficiently detailed because they contend Defendant “was required to review —and did

7 review—all of the materials specifically identified in the paragraph as part of his job

8 responsibilities and duties as warden at CCI,” including “the July 2018 OIG Report” detailed in

9 paragraph 71. Plaintiff asserts “[i]t is incredulous to argue that” Defendant did not read those

10 materials or that “he was somehow unaware of their existence or contents.” Moreover, he argues

11 paragraph 71, as it concerns Defendant’s failure “to adequately embrace the training modules”

12 and his failure to “curtail the pervasive beating incidents” is sufficiently detailed.

13 Next, Plaintiff maintains that Defendant’s argument that the July 2018 OIG Report and

14 the “numerous 602’s and grievances” filed do not equate to the facts in Starr v. Baca is erroneous.

15 He contends the OIG report and grievances “underscores the fact that” Defendant “knew of the

16 widespread abuses and excessive force incident at CCI” and “knew that as warden he had a duty

17 to address the issues.” Plaintiff then asks whether it is Defendant’s position that he did not read

18 the reports and grievances, whether he did not believe that “widespread beatings and violent acts

19 of excessive for were rampant at his prison,” or whether he acknowledges or claims he did not

20 read “such OIG Reports, 602’s or inmate grievances, or that his job duties [do] not require him to

21 do so?”

22 Plaintiff asserts he has sufficiently alleged Defendant’s “culpability as he has

23 demonstrated” his deliberate indifference to Plaintiff’s safety and well-being,” in accordance with

24 Iqbal and Keates v. Koile, 883 F.3d 1228 (9th Cir. 2018), in paragraphs 70 and 71 of the fourth

25 amended complaint. Those paragraphs “added detail of Sullivan’s actual knowledge or at the

26 least, his constructive knowledge, of the many instances of excessive force at CCI and that his

27 correctional officers at CCI were out of control.” Plaintiff argues Defendant’s “callous disregard

1 inaction and his intentional failure to take corrective measures.

2 As concerns Plaintiff’s identification of Defendant Harris having been “previously

3 subjected to several instances of complaints and discipline,” Plaintiff asserts his “allegations

4 demonstrate that the ‘requisite causal connection [was] established … by setting in motion a

5 series of acts” or by Defendant’s knowing refusal to terminate a series of acts by others, “which

6 [the supervisor] knew or reasonably should have known would cause others to inflict a

7 constitutional injury,” citing to Starr. Plaintiff contends “’even one allegation of a harmful act’”

8 entitles him to “’go forward with his claim,’” citing to Pelletier v. Federal Home Loan Bank of

9 San Francisco, 968 F.2d 865 (9th Cir. 1992). Plaintiff asserts “[e]very single attack by a CCI

10 correctional officer upon a housed inmate is required to be reviewed at the warden’s desk, and

11 properly documented in the facility’s files.” He contends he has properly alleged Defendant’s

12 duties as warden “was to oversee, read and be aware of such reports, including the respective 602

13 administrative complaints brought by CCI inmates against these C.O.’s, of which there were

14 many at CCI prior to July 29, 2019, as contained in the July 2018 OIG Report.”

15 Plaintiff contends that pursuant to Starr, he “is only required to demonstrate a causal

16 connection” that Defendant “’reasonably should have known (reporting of the December 18, 2018

17 attack on [Plaintiff] by F. Harris and V. Mansferrer) would cause others (i.e., J. Munoz and B.

18 Carillo) not to inflict a constitutional injury of the alleged attack on Plaintiff, or that they were

19 involved in it.’” (Emphasis in original.) Plaintiff states he did not plead “‘advance knowledge’ of

20 the subsequent July 29, 2019 assault” by Defendant Munoz and Carillo, and condoned or

21 witnessed by Defendant Escarcega” because that “is what discovery is for.”

22 Plaintiff asserts his fourth amended complaint “does not contain the ‘bald’ and

23 ‘conclusory’ allegations in Iqbal, but rather resembles the more detailed factual allegations in

24 Starr.” Plaintiff contends Defendant’s “feigned ignorance or simple lack of actual knowledge

25 should also not insulate him from the unconstitutional activities of his C.O. subordinates of which

26 he was —or should have been—acutely aware.” He avers he has pled with sufficient particularity

27 Defendant’s awareness and knowledge of Plaintiff’s “previous, unprovoked attacks on December

1 would “again be brutally beaten.” (Emphasis in original.) Moreover, he asserts Defendant was

2 “also aware, specifically, of Defendant F. Harris’ propensity and history of violent beatings and

3 excessive force against CCI inmates and more constitutional injuries which were detailed in the

4 July 2018 OIG Report and the numerous 602’s and similar grievances which he read as part of his

5 job responsibilities as CCI warden.” (Emphasis omitted.)

6 Finally, Plaintiff contends Defendant is not entitled to qualified immunity. Plaintiff

7 contends the cases cited by Defendant concern summary judgment or trial, rather than cases

8 decided at the pleadings stage. He asserts that to consider “these unrelatable distinguishable

9 cases” as against the allegations asserted here “is illogical, improper, and prejudicial.” Plaintiff

10 maintains he has sufficiently alleged deliberate indifference or callous or reckless indifference by

11 Defendant with detailed allegations that must be taken as true for purposes of Defendant’s motion

12 and that Defendant has “sufficiently been put on notice as to those claims asserted against him.”

13 The allegations are satisfactory “and if and when internal documents of CCI are produced

14 properly, these allegations will be supplemented and expanded, accordingly.”

15 Defendant’s Reply (Doc. 50)

16 In reply to Plaintiff’s opposition, Defendant repeats his argument that Plaintiff’s assertions

17 in the fourth amended complaint do “not specifically identify any incident, when the incident

18 happened, when Sullivan knew about it, or what his response was.” Defendant again states the

19 2018 OIG report did not include any CCI-specific findings of inmate abuse or excessive force.

20 Defendant contends Plaintiff’s argument in opposition— that because Defendant was

21 “required to review the ‘multitude’ of documents,” he reasonably should have known that his

22 conduct would cause others to inflict a constitutional harm—fails to specifically identify any

23 incident, when the incident happened, when Defendant knew about it, or what his response was.

24 Further, “for the most part, the [fourth amended complaint] fails to identify the content of the

25 documents, and where [it] does address the content of the OIG report, that content does not

26 support” Plaintiff’s conclusion that Defendant knew of “‘widespread beatings’ or systemic use of

27 force at CCI.” Defendant contends that “[p]ointing to a ‘multitude’ of unidentified documents and

1 (unidentified) content does not change the conclusory nature” of Plaintiff’s allegations.

2 Defendant takes issue with Plaintiff’s assertion that his fourth amended complaint is

3 “analogous to the complaint in Starr v. Baca” because “the complaint in Starr pled plentiful facts

4 to support a finding that the sheriff there knew of a pattern and practice of constitutional

5 violations by sheriff’s deputies.” It discussed a “findings letter,” a memorandum of understanding

6 with the Department of Justice, and other reports concerning inmate abuse and increasing levels

7 of violence. Defendant asserts Plaintiff’s fourth amended complaint “pleads only conclusions”

8 whereas “the complaint in Starr pled facts.”

9 Next, Defendant contends Plaintiff’s fourth amended complaint “simply concludes,

10 without any factual support that Harris had a ‘propensity’ to violate policy” of which Defendant

11 was aware. He argues the fourth amended complaint “says nothing about Sullivan’s conduct,

12 instead [it is] simply speculating that Sullivan must be at fault because he was the warden.”

13 Defendant repeats his contention that Plaintiff’s allegations regarding MILO training do

14 not support a finding of supervisory liability because the “assertion that Sullivan ‘failed to

15 adequately embrace’ MILO’s training modules is simply a vague, legally meaningless conclusion

16 without any factual support” and that Plaintiff “provided no argument beyond restating the

17 language” used in the fourth amended complaint such that “Sullivan’s point stands” in the

18 absence of meaningful opposition.

19 Next, Defendant contends Plaintiff’s fourth amended complaint does not allege Defendant

20 was aware of a December 2018 incident involving Plaintiff. Defendant asserts “this new

21 allegation cannot be considered on this motion to dismiss.” Additionally, even had it been

22 properly alleged, Defendant argues personal liability cannot be imposed on a supervisor based on

23 a single prior act of misconduct by subordinates. As concerns Plaintiff’s argument that “‘even one

24 allegation of harmful conduct,’” citing to Pelletier, allows Plaintiff to proceed, Defendant asserts

25 the Ninth Circuit “was not discussing the standard for individual supervisory liability for state

26 officials, but rather liability for federal officials generally on a Bivens claim.” Defendant

27 maintains Pelletier does not apply and that Plaintiff failed to plead facts showing Defendant

1 claim on this basis.

2 Finally, Defendant contends he is entitled to qualified immunity as previously asserted,

3 and that the Supreme Court has directed courts to resolve the issue “‘at the earliest stage of

4 litigation possible.’” Defendant notes the Ninth Circuit has held that district courts “‘may grant a

5 motion to dismiss on qualified immunity grounds if the record supports such a ruling.’”

6 Defendant avers that “accepting any non-conclusory factual allegations as true,” Plaintiff’s fourth

7 amended complaint “shows on its face that qualified immunity applies,” and thus there is no

8 reason to delay a ruling.

9 A. Plaintiff Has Not Plausibly Alleged an Eighth Amendment Claim

10 Because the fourth amended complaint does not assert Defendant Sullivan was personally

11 involved in the constitutional violation at issue, Plaintiff must allege a sufficient causal

12 connection between Sullivan’s wrongful conduct and the constitutional violation.

13 A supervisor may be held liable under section 1983 “if there exists either (1) his or her

14 personal involvement in the constitutional deprivation, or (2) a sufficient causal connection

15 between the supervisor’s wrongful conduct and the constitutional violation.” Starr, 652 F.3d at

16 1207 (quoting Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)). To be liable, the supervisor’s

17 participation could include his “own culpable action or inaction in the training, supervision, or

18 control of his subordinates, his acquiescence in the constitutional deprivations of which the

19 complaint is made, or conduct that showed a reckless or callous indifference to the rights of

20 others.” Id. at 1205-06 (citing Larez v. City of Los Angeles, 946 F.2d 630 (9th Cir. 1991)). Thus,

21 to hold Defendant Sullivan liable under a deliberate indifference theory, Plaintiff is required to

22 allege Sullivan had knowledge of and acquiesced to the conduct of subordinate officers. Hydrick

23 v. Hunter, 669 F.3d 937, 942 (9th Cir. 2012).

24 //

25 //

26 //

27 //

1 1. Policies, Practices and Customs2

2 Plaintiff’s fourth amended complaint asserts Defendant Sullivan maintained and permitted

3 “the practices, policies and customs under CDCR guidelines and procedures for correctional

4 facilities.” (Doc. 46 at 18.) Plaintiff alleges, on information and belief, that Sullivan “as the

5 official policy maker for CCI Tehachapi, was aware of widespread beatings and use of excessive

6 force in CCI Tehachapi.” (Id.) On information and belief, Plaintiff asserts Sullivan had “actual

7 notice of the widespread beatings at CCI through several sources” and that he “was CCI’s hiring

8 authority who is required to impose discipline on those correctional officers that served below

9 him.” (Id.) Plaintiff further contends Sullivan “was required to review, and did review, a

10 multitude of inmate incident documentation related to abuses against and the use of excessive

11 force,” including “inmate incident reports, 602 grievances, use of force reviews and reports under

12 Title 15, medical reports, emergency room data, Office of Internal Affairs investigations into

13 CDCR personnel misconduct, and OIG reports.” (Id. at 18-19.) Plaintiff alleges Sullivan was

14 “keenly aware of the systemic abuse and violence of his subordinate officers at CCI because the

15 July 2018 OIG Report entitled ‘Monitoring the Use of Force,’ made it abundantly clear that those

16 systematic abuses of inmates by the CCI correctional officers and assaults against inmates at that

17 facility remained widespread, continuous and sometimes deadly.” (Id. at 18-19.) Plaintiff

18 contends that “[i]nstead of taking proper steps to discipline Individual Defendants and named Doe

19 Defendants, Defendant Sullivan condoned, encouraged, fostered and/or ratified the unlawful

20 conduct of said Defendants.” (Id. at 20.) Plaintiff further asserts that, on information and belief,

21 Sullivan “ratified the Individual Defendants and Doe Defendants’ unconstitutional conduct

22 towards Plaintiff.” (Id. at 20.) Additionally, Plaintiff contends Sullivan “was particularly

23 knowledgeable and aware of Defendant F. Harris’ propensity to violate CDCR departmental

24 policy due to Harris’ involvement in several excessive [use] of force incidents which results in

25

2 The Court reviewed the California Office of the Inspector General’s Monitoring the Use of Force report

26 dated July 2018. (See <https://www.oig.ca.gov/wp-content/uploads/2019/05/OIG_Report_-

_Monitoring_the_Use_of_Force_2017-2.pdf> [last accessed 9/20/2023].) See Daniels-Hall v.

27 Nat'l Educ. Ass'n, 629 F.3d 992, 998-99 (9th Cir. 2010) (a court may take judicial notice of

“information [that] was made publicly available by government entities” where “neither party

disputes the authenticity ... or the accuracy of the information”).

1 significant injuries to inmates and legal and financial repercussions to the State of California.

2 Defendant Sullivan’s inaction allowed Harris to act with impunity.” (Id.) Plaintiff asserts Sullivan

3 failed to take reasonable steps to protect Plaintiff and to ensure his right to be free from cruel and

4 unusual punishment. (Id. at 21.)

5 Plaintiff’s assertion that his “claims against Defendant Sullivan are based on his

6 maintaining and permitting practices, policies and customs under CDCR guidelines and

7 procedures for correctional facilities” is conclusory. Plaintiff does not identify any specific

8 practice, policy or custom. See Hydrick, 669 F.3d at 942 (“Plaintiffs’ complaint is based on

9 conclusory allegations and generalities, … there is no allegation of a specific policy implemented

10 by the Defendants or a specific event or events instigated by the Defendants that led to these

11 purportedly unconstitutional searches”) (emphasis in original). See also Keates v. Koile, 883 F.3d

12 1228, 1242-43 (9th Cir. 2018) (conclusory allegations that defendant promulgated

13 unconstitutional policies and procedures which authorized the conduct at issue and caused the

14 allegedly unconstitutional conduct insufficient for § 1983 liability).

15 In Keates, the Court found plaintiff’s complaint did not allege that defendant Carter was

16 directly involved in the allegedly unconstitutional conduct or that he had knowledge of the

17 constitutional deprivations and acquiesced in them. Rather, the complaint made “conclusory

18 allegations that Carter promulgated unconstitutional polic[i]es and procedures which authorized

19 the particular conduct in this case and directly caused [named defendant] Kolie’s allegedly

20 unconstitutional conduct. These allegations do not suffice to state a claim for supervisor liability.”

21 Keates, 883 F.3d at 1243. Here, while Plaintiff has alleged more facts than previously asserted,

22 the Court finds that like Keates, these allegations are insufficient to raise a right to relief above

23 the speculative level. Twombly, 550 U.S. at 555.

24 Plaintiff alleges Sullivan is “the official policymaker for CCI” and “was aware of

25 widespread beatings and use of excessive force in CCI.” (Doc. 46 at 18.) He contends that

26 Sullivan had actual notice “through several sources” because Sullivan “was CCI’s hiring

27 authority who is required to impose discipline on those correctional officers that serve below

1 documentation,” including incident reports, grievances, use of force reviews and report, medical

2 reports and emergency room data, and OIA and OIG reports. (Id. at 18-19.)

3 While the July 2018 OIG Report includes information not previously asserted, a

4 distinction exists between the report’s “use of force” language and Plaintiff’s terminology,

5 including his assertions that Sullivan had knowledge of “systemic abuse” “widespread beatings”

6 and “excessive force.” In other words, while the July 2018 OIG Report documents the use of

7 force in CDCR facilities occurring during the relevant time period, the “use of force” findings in

8 the report do not equate to findings of “excessive force,” “widespread beatings” or “systemic

9 abuse” as used by Plaintiff. The use of force can occur without excessive and unnecessary force,

10 “widespread beatings” or “systemic abuse.” The report itself references its “use of terms and

11 concepts specific to the use of force,” including “reasonable force,” “unnecessary force,” and

12 “immediate use of force.” (See July 2018 OIG Report at 11<https://www.oig.ca.gov/wp-

13 content/uploads/2019/05/OIG_Report_-_Monitoring_the_Use_of_Force_2017-2.pdf> [last

14 accessed 10/12/2023].)

15 The Court agrees with Defendant that the July 2018 OIG Report, coupled with Plaintiff’s

16 even more general assertions concerning Sullivan’s review of grievances and numerous other

17 reports, are not sufficiently specific. Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 678. See, e.g.,

18 Windham v. Franklin, No. CV 13-3004-SVW (JEM), 2014 WL 7740262, at *14 (C.D. Cal. Aug.

19 29, 2014) (plaintiff’s conclusory allegations that associate wardens “knew that prison officials

20 used excessive force against inmates” and “knew of the ‘systemic acts of excessive force on

21 inmates’ by the Green Wall prison officials and condoned them” insufficient to state a claim),

22 adopted by 2015 WL 500500 (C.D. Cal. Feb. 2, 2015); Himes v. Gatelo, No. 2:18-cv-00327-PSG

23 (MAA), 2020 WL 2089162, at *8 (C.D. Cal. Mar. 9, 2020) (allegation that defendant “directs the

24 practices and policies of subordinate employees,” “personally knew of the violations,” and

25 “refus[ed] to enforce rules and policies” found “not sufficient to state a claim of supervisory

26 liability”), adopted by 2020 WL 2079980 (C.D. Cal. Apr. 29, 2020). Rather, the allegations in the

27 fourth amended complaint merely create a suspicion of a legally cognizable right of action.

1 Plaintiff’s allegations in the fourth amended complaint are not as robust as those asserted

2 against Baca in Starr. In Starr, the plaintiff alleged Baca knew or should have known inmates

3 under his care were in danger based upon a United States Department of Justice (“DOJ”)

4 “‘findings letter’ of a continued and serious pattern and practices of constitutional violations,’”

5 weekly subordinate reports, receipt of “‘ongoing reports of his Special Counsel and Office of

6 Independent Review,’” a Memorandum of Understanding with the DOJ “to address and correct

7 the continuous constitutional violations to which inmates were being subjected,” specific

8 knowledge concerning approximately nine incidents allegedly involving inmates identified as

9 having been assaulted or killed while incarcerated, and notices and findings from The Special

10 Counsel to the Los Angeles County Sheriff’s Department. Starr, 652 F.3d at 1209-1212. Thus,

11 while the allegations set forth in Plaintiff’s fourth amended complaint assert additional facts as

12 compared to the previous operative complaint, the Court finds those facts are not sufficiently

13 specific to causally connect Defendant Sullivan’s actions or inactions to the constitutional harm

14 suffered by Plaintiff. Hydrick, 669 F.3d at 942; Fayle, 607 F.2d at 862; Taylor, 880 F.2d at 1045.

15 2. Supervision, Training and Hiring

16 “A supervisor can be liable in his individual capacity for his own culpable action or

17 inaction in the training, supervision, or control of his subordinates; for his acquiescence in the

18 constitutional deprivation; or for conduct that showed a reckless or callous indifference to the

19 rights of others.” Watkins v. City of Oakland, 145 F.3d 1087, 1093 (9th Cir. 1998) (internal

20 alteration & quotation marks omitted).

21 Plaintiff’s fourth amended complaint alleges Defendant Sullivan “failed to adequately

22 train custody staff in the appropriate use of force and criminal activity.” (Doc. 46 at 17-18.) He

23 alleges Sullivan is “responsible for the supervision, training and hiring of persons and employees

24 working within CCI Tehachapi including correctional officers, medical staff, mental health staff

25 and other employees within the CCI facility.” (Id. at 18.) Referring to the July 2018 OIG Report,

26 Plaintiff alleges that in July 2017, “CDCR implemented its officer training program for

27 correctional officers and staff known as multiple interactive learning objective (MILO) simulator

1 excessive force against inmates, deployed with mixed results.” (Id. at 19.) Specifically, Plaintiff

2 alleges Sullivan “was aware of the increasing dangers his officers posed to the CCI inmates” and

3 “failed to adequately embrace the training modules and took no steps to curtail the pervasive

4 beating incidents, up to at least December 31, 2018, then again on July 29, 2019, when Plaintiff

5 was senselessly beaten by the named Individual Defendants herein.” (Id. at 19-20.)

6 Here, even liberally construing the fourth amended complaint and resolving doubts in

7 Plaintiff’s favor, the Court finds the allegations against Defendant Sullivan concerning training

8 are not sufficiently specific. While Plaintiff has identified a specific training program—MILO—

9 and has generally alleged deficiencies in the implementation of that program at CCI to Sullivan,

10 Plaintiff does not identify any deficiencies or explain how Sullivan’s implementation of MILO at

11 CCI was deficient. The specific allegation that Sullivan “failed to adequately embrace” the MILO

12 training modules does not identify what Sullivan purportedly “failed to adequately embrace” or

13 what action he failed to take.3 Nor has Plaintiff connected any purported failure to his assertion

14

3 The Court notes the July 2018 OIG Report states, in part:

15

In July 2017, … the department deployed the multiple interactive learning

16 objective (MILO) simulator. All custodial and noncustodial staff use this

training to improve their communication skills and learn when to apply de-

17 escalation techniques. The goal is to gain voluntary compliance through

verbal persuasion rather than by force. In additional, the training assists

18 staff in learning to recognize signs and symptoms of mental illness or

developmental disability. [¶] MILO training consists of numerous prison-

19 based, interactive scenarios conducted by certified instructors who direct

the scenario based on the participant’s verbal interaction with it, which is

20 projected on a 12-foot screen. The scenarios do not initially present the

participant with an imminent threat. However, depending on the

21 participant’s ability to employ de-escalation techniques, the scenario may

present a threat that required the participant to deploy a use of force. [¶

22 MILO training has been implemented statewide and is now included in the

department’s required annual use-of-force training. The OIG has observed

23 the MILO simulator at several institutions, and our staff were encouraged

by both the instructional level and participant interaction. Following each

24 scenario, meaningful discussion occurred between the participants and

instructors, which included both custodial and mental health staff.”

25

(See page 13 < https://www.oig.ca.gov/wp-content/uploads/2019/05/OIG_Report_-

26 _Monitoring_the_Use_of_Force_2017-2.pdf> [last accessed 10/12/2023].) It also states:

“To evaluate the implementation of statewide de-escalation training, inspectors observed

27 the MILO simulator at several institutions. The OIG was impressed with the techniques

offered as part of this training simulator and was pleased with the level of participation from

departmental staff” (id. at 21) and “We are also pleased with the department’s use of the

1 that Sullivan “took no steps to curtail the pervasive beating incidents ….” In this regard,

2 Plaintiff’s failure-to-train assertions regarding Sullivan are not sufficiently specific. Fayle, 607

3 F.2d at 862.

4 3. The Facts Referencing Defendant Harris

5 In the fourth amended complaint, Plaintiff contends Defendant Sullivan “was particularly

6 knowledgeable and aware of Defendant F. Harris’ propensity to violate CDCR departmental

7 policy due to Harris’ involvement in several excessive sue [sic] of force incidents ….” (Doc. 46 at

8 20.) However, Plaintiff has failed to allege with sufficient particularly how Sullivan “was

9 particularly knowledgeable and aware” of Harris’ purported propensity to violate policy. Plaintiff

10 offers no specific information concerning Harris “involvement in several” excessive force actions

11 allegedly resulting in significant injuries to those involved and “financial repercussions to the

12 State of California.” He offers no case names or numbers, identifies no other inmates purportedly

13 involved, offers no factual background or comparisons, or the specific findings by any court. See,

14 e.g., Samaniego v. CDCR, No. 1:21-cv-00839-JLT-CDB, 2023 WL 2278267, at *10 (E.D. Cal.

15 Feb. 28, 2023) (“Samaniego does not identify other specific incidents in which a prisoner

16 submitted a 602 claim and suffered retaliatory actions by Harris or the other named defendants as

17 a result, such that Sullivan would be aware of a pending threat to Samaniego”).

18 4. Conclusion

19 To conclude, this Court finds, even liberally construed and resolving doubt in Plaintiff’s

20 favor, the fourth amended complaint fails to sufficiently allege a claim against Defendant

21 Sullivan. The facts are insufficient to support a causal connection between Sullivan and Plaintiff’s

22 constitutional claims. Starr, 652 F.3d at 1205-07. Therefore, this Court will recommend

23 Defendant Sullivan’s motion to be dismiss be granted.

24 Further, when dismissing a claim, “a district court should grant leave to amend ... unless it

25 determines that the pleading could not possibly be cured by the allegation of other facts.” Lopez v.

26 Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). Here, Plaintiff has previously been granted leave to

27 amend his claims against Defendant Sullivan to add specificity. (See Docs. 25 at 5-6 & Doc. 45.)

1 | In this final attempt, Plaintiff has again failed to allege facts sufficient to state a plausible claim

2 | against Defendant Sullivan. Thus, the Court finds granting further leave to amend the claims

3 | against Sullivan would be futile. Hartmann vy. CDCR, 707 F.3d 1114, 1130 (9th Cir. 2013).

4 B. Qualified Immunity

5 Defendant contends he is entitled to qualified immunity. However, because the Court is

6 | recommending Defendant Sullivan’s motion to dismiss be granted, it need not reach and does not

7 | address Defendant’s argument concerning qualified immunity.

8 V. CONCLUSION AND RECOMMENDATIONS

9 For the reasons stated above, IT IS HEREBY RECOMMENDED that Defendant

10 | Sullivan’s motion to dismiss the fourth amended complaint (Doc. 48) be GRANTED without

11 | leave to amend, and that Defendant Sullivan be dismissed from this action.

12 These Findings and Recommendations will be submitted to the United States District

13 | Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within 14 days

14 | of the date of service of these Findings and Recommendations, Plaintiff may file written

15 | objections with the Court. The document should be captioned, “Objections to Magistrate Judge’s

16 | Findings and Recommendations.” Plaintiff's failure to file objections within the specified time

17 | may result in waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir.

18 | 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

19 | IT IS SO ORDERED.

Dated: _ October 17, 2023 | Wr bo

21 UNITED STATES MAGISTRATE JUDGE

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