The opinion
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8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
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11 NATOMEE HINTON, Case No. 1:24-cv-00960-KES-BAM (PC)
12 Plaintiff, FINDINGS AND RECOMMENDATIONS
REGARDING DEFENDANTS’ PARTIAL
13 v. MOTION TO DISMISS
14 MIX, et al., (ECF No. 36)
15 Defendants. FOURTEEN (14) DAY DEADLINE
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17 Findings and Recommendations
18 I. Introduction
19 Plaintiff Natomee Hinton (“Plaintiff”) is a former state prisoner proceeding pro se and in
20 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on
21 Plaintiff’s fourth amended complaint against: (1) Defendants Mix and Giannini for excessive
22 force in violation of the Eighth Amendment; (2) Defendants Vang, Giannini, and Baker for
23 failure to protect in violation of the Eighth Amendment; (3) Defendant Mix for retaliation in
24 violation of the First Amendment; (4) Defendants Mix and Vang for state law assault and battery;
25 (5) Defendant Mix for state law intentional infliction of emotional distress; and (6) Defendants
26 Mix, Vang, Giannini, and Baker for state law negligence.
27 On September 18, 2025, Defendants Mix, Giannini, Baker, and Vang filed a motion to
28 partially dismiss Plaintiff’s fourth amended complaint pursuant to Federal Rule of Civil
1 Procedure 12(b)(6). (ECF No. 36.) Plaintiff filed a notice of motion and counterclaim to
2 Defendants’ partial motion to dismiss on October 20, 2025, which the Court construes as an
3 opposition. (ECF No. 39.) Defendants replied on October 27, 2025. (ECF No. 43.) The motion
4 is deemed submitted. Local Rule 230(l).
5 For the reasons discussed below, the Court recommends that Defendants’ motion be
6 granted in part and denied in part.
7 II. Summary of Relevant Allegations in Fourth Amended Complaint
8 The events in the fourth amended complaint are alleged to have occurred while Plaintiff was
9 incarcerated at Sierra Conservation Center (“SCC”) in Jamestown, California.
10 In Claim 1, Plaintiff alleges excessive force in violation of the Eighth Amendment. On
11 4/24/24, Defendant Mix had Plaintiff hog tied and carried by his clothes to a medical holding cell
12 while Plaintiff’s breathing was being disrupted. Once inside, non-defendant Officer Pastor II
13 closed the door to block eye view of other inmates and free staff. While being carried, Plaintiff
14 was choking the words “I can’t breathe” but ignored. Plaintiff was laid on his stomach face down
15 in cuffs. Defendant Mix straddled Plaintiff and used Plaintiff’s blue top to choke Plaintiff even
16 more, disrupting Plaintiff’s breathing while telling Plaintiff to shut up. Plaintiff continued to
17 scream and cry but was struck multiple times in his face and told to shut up while attempting to
18 get the sergeant to stop. Other officers such as Defendants Giannini, Vang, and Baker stood
19 watching in aid of Defendant Mix’s attack. Mix ordered officers to take Plaintiff’s shoes/pants
20 off and to pin Plaintiff’s legs to his butt in a scissor position, which Defendant Giannini did until
21 they were numb, as Plaintiff warmed around from all the different things happening at once.
22 In Claim 2, Plaintiff alleges failure to protect in violation of the Eighth Amendment.
23 While Sgt. Mix punched and strangled Plaintiff, while straddling Plaintiff while Plaintiff’s hands
24 were cuffed behind his back, other officers such as Vang, Giannini, and Baker sat and watched
25 the attack and didn’t intervene as Sgt. Mix used excessive force against Plaintiff in a malicious
26 manner and not to regain order of the facility. He told Plaintiff to shut up as Plaintiff cried and
27 begged for help. They falsified incident reports of what occurred and left out the force Sgt. Mix
28 used against Plaintiff and stated none was used. They had a job to intervene when watching
1 another use excessive force against Plaintiff unlawfully.
2 Upon Plaintiff’s return, Mix threatened Plaintiff to round 2 of another assault, made fun of
3 Plaintiff, harassed and humiliated Plaintiff while following Plaintiff around the yard several
4 months after Plaintiff’s issue transpired, with no cares or worries for any disciplinary action for
5 his actions.
6 In Claim 3, Plaintiff alleges a state tort for assault and battery. Sgt. Mix personally
7 battered Plaintiff while Plaintiff laid in cuffs face down on the ground in Facility C medical
8 holding cell. Giannini crossed Plaintiff’s legs to Plaintiff’s butt in major pain until they were
9 numb. Plaintiff was screaming for help but no one came or assisted. Sgt. Mix started to strangle
10 Plaintiff with Plaintiff’s blue top while telling Plaintiff to shut up as he straddled Plaintiff from
11 behind. Plaintiff screamed and cried that Plaintiff could not breathe. He struck Plaintiff multiple
12 times with his fist to Plaintiff’s face as Plaintiff swarmed on the ground from the attack and all
13 the different things happening to him at once. Officers Vang, Giannini, and Baker stood
14 watching and aiding in Sgt. Mix’s attack.
15 In Claim 4, Plaintiff alleges a state tort for intentional infliction of emotional distress. On
16 4/24/24, Sgt. Mix took Plaintiff off camera to a room with no witnesses except his fellow officers
17 and choked and struck Plaintiff multiple times while strangling Plaintiff, humiliating Plaintiff
18 through his cries and screaming for help. He continually told Plaintiff to shut up as he struck
19 Plaintiff and choked Plaintiff, as Plaintiff told him he could not breathe, while straddling Plaintiff.
20 He told Plaintiff to clean up before he got medical saying whatever Plaintiff disclosed to
21 medical/admin would be Plaintiff’s fate moving forward. But Plaintiff still told medical and
22 admin what Mix did to Plaintiff while he was present and that he battered Plaintiff for no reason.
23 Mix then falsified documents that got Plaintiff sent to Ad-seg and change of living conditions.
24 Plaintiff was found not guilty of the falsified RVR after being sent to High Desert State Prison
25 (“HDSP”), and Plaintiff was returned to SCC about 90 days later. While in Ad-seg, Plaintiff had
26 limited access to yard, recreation, rehabilitative programs/services, and no communications with
27 family or support system, leaving Plaintiff with a deteriorating mental health. Officers Vang,
28 Giannini, and Baker failed to help Plaintiff when they saw he was beaten by the supervisor.
1 When Plaintiff returned to SCC, Mix constantly antagonized Plaintiff and made jokes and
2 threats to harm Plaintiff again, with great disregard for civilization or punishment, as he could do
3 whatever he wanted, cursing at Plaintiff.
4 In Claim 5, Plaintiff alleges retaliation in violation of the First Amendment. After Mix’s
5 attack on Plaintiff ceased and before he got medical, he told Plaintiff that whatever Plaintiff
6 disclosed to medical/admin would be Plaintiff’s fate moving forward, in an attempt to silence
7 Plaintiff and not disclose what actually transpired. As an inmate Plaintiff has a First Amendment
8 right to complain in CDCR through a 602 process, but in times of emergency nothing precludes
9 reporting verbally, then following the 602 procedure. Upon medical arriving, Plaintiff was still
10 crying and hysterical and told them that Mix beat Plaintiff and Plaintiff hadn’t done anything
11 wrong, while Mix was physically present. He then in return falsified a report to cover up what
12 happened, stating Plaintiff battered him. That false report by Mix got Plaintiff re-housed in Ad-
13 seg for months, which changed Plaintiff’s living conditions.
14 In Claim 6, Plaintiff alleges a state tort for malicious prosecution. On 4/24/24 Mix
15 initiated an administrative proceeding against Plaintiff, false RVR disciplinary proceedings. Mix
16 stated his intentions of Plaintiff telling anyone what occurred, when disclosing what occurred he
17 proceeded with malice and without probable cause to falsify documents in an attempt to cover
18 what happened, which got Plaintiff sent to Ad-seg and a RVR disciplinary process initiated.
19 Plaintiff was later found not guilty of the falsified battery on a peace officer, when Plaintiff was
20 released from Ad-seg and returned from Level IV HDSP back to SCC.
21 In Claim 7, Plaintiff alleges a state tort for negligence. All Defendants breached their duty
22 of care to ensure that Plaintiff wasn’t beaten in custody and left with multiple injuries. They had
23 an obligation to ensure malicious harm or excessive force against Plaintiff was not done in an
24 unlawful manner, as they have a job to protect the inmate population and staff from any unwanton
25 harm or injury, which could be prevented. All defendants had an obligation but failed to act on
26 that obligation deliberately by standing and just watching and aiding in the attack.
27 Mix knew what transpired on 4/24/24 in the Facility C medical holding cell and also knew
28 that the falsified report with false allegations would get Plaintiff sent to Ad-seg and possibly a
1 Level IV after the RVR was finalized, as he has been with the department for 30 years and was
2 currently at the Sgt. rank. This was an attempt to maliciously prosecute Plaintiff for wanting to
3 exercise his First Amendment right to complain about what occurred on the morning of 4/24/24.
4 As indicated, this action currently proceeds only against Defendants Mix and Giannini for
5 excessive force in violation of the Eighth Amendment (Claim 1); (2) Defendants Vang, Giannini,
6 and Baker for failure to protect in violation of the Eighth Amendment (Claim 2); (3) Defendant
7 Mix for retaliation in violation of the First Amendment (Claim 5); (4) Defendants Mix and Vang
8 for state law assault and battery (Claim 3); (5) Defendant Mix for state law intentional infliction
9 of emotional distress (Claim 4); and (6) Defendants Mix, Vang, Giannini, and Baker for state law
10 negligence (Claim 7). (ECF No. 28.)
11 III. Defendants’ Motion to Dismiss
12 A. Legal Standard
13 A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a claim, and
14 dismissal is proper if there is a lack of a cognizable legal theory or the absence of sufficient facts
15 alleged under a cognizable legal theory. Conservation Force v. Salazar, 646 F.3d 1240, 1241–42
16 (9th Cir. 2011) (quotation marks and citations omitted). To survive a motion to dismiss, a
17 complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible
18 on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly,
19 550 U.S. 544, 570 (2007)) (quotation marks omitted); Conservation Force, 646 F.3d at 1242;
20 Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The Court must accept the well-
21 pled factual allegations as true and draw all reasonable inferences in favor of the non-moving
22 party. Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010); Sanders v. Brown,
23 504 F.3d 903, 910 (9th Cir. 2007); Huynh v. Chase Manhattan Bank, 465 F.3d 992, 996–97 (9th
24 Cir. 2006); Morales v. City of L.A., 214 F.3d 1151, 1153 (9th Cir. 2000).
25 In general, pro se pleadings are held to a less stringent standard than those drafted by
26 lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). The Court has an obligation to construe
27 such pleadings liberally. Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc).
28 However, a court’s liberal interpretation of a pro se complaint may not supply essential elements
1 of the claim that were not pled. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th
2 Cir. 1982). Also, the Court need not credit naked assertions, “labels and conclusions” or “a
3 formulaic recitation of the elements of a cause of action.” See Twombly, 550 U.S. at 555–57.
4 B. Parties’ Positions
5 Defendants seek dismissal of Claim 3 (assault and battery) as to Defendants Vang and
6 Baker, dismissal of Claim 4 (intentional infliction of emotional distress) as to Defendants
7 Giannini, Vang, and Baker, dismissal of Claim 7 (negligence) as to Defendants Giannini, Vang,
8 and Baker, and dismissal of Claim 6 (malicious prosecution) as to all defendants. (ECF No. 36 at
9 2, 3.) Defendants contend that California Government Code § 820 immunizes public employees
10 from liability for injuries caused by the act or omission of another person, citing California
11 Government Code § 820.8. Defendants argue that Plaintiff attempts to impute liability from
12 Mix’s acts onto Giannini, Baker, and Vang when only Mix took part in the alleged excessive
13 force. Defendants further contend that they are all immune from Plaintiff’s claim of malicious
14 prosecution in Claim 6 under California Government Code § 821.6. Defendants therefore
15 conclude that Claim 3 should be dismissed as to Baker and Vang under § 820.8, claims 4 and 7
16 should be dismissed as to Giannini, Baker, and Vang under § 820.8, and Claim 6 should be
17 dismissed as to all Defendants under § 821.6.
18 In his opposition, Plaintiff admits that he did not plead any facts in Claim 3 alleging
19 assault and battery regarding Defendant Vang or Baker, noting that the undersigned never held
20 Defendants Vang or Baker liable as to that claim. Plaintiff instead contends that Defendants Mix
21 and Giannini should be held to answer Claim 3. (ECF No. 39 at 2.) Plaintiff also argues that the
22 motion to dismiss the intentional infliction of emotional distress claim (Claim 4) against
23 Defendants Giannini, Baker, and Vang is “moot” and merely a distraction because these
24 defendants were not held to answer the claim. (Id. at 3.) Additionally, Plaintiff asks the Court to
25 hold all defendants to answer the negligence claim (Claim 7), arguing that he has alleged action
26 by all defendants. (Id. at 4-5.) Finally, as to the malicious prosecution claim (Claim 6), Plaintiff
27 asks the Court to hold only Defendant Mix to answer the claim, agreeing with Defendants to
28 remove Defendants Vang, Baker, and Giannini from the claim. (Id. at 5-6.)
1 In reply, Defendants indicate that Plaintiff’s opposition largely concedes to the relief
2 Defendants seek and fails to cure the core pleading deficiencies. (ECF No. 43.) Defendants
3 assert that Plaintiff (1) does not oppose dismissal of the assault and battery claim (Claim 3) as to
4 Vang and Baker; and (2) concedes that the intentional infliction of emotional distress claim
5 (Claim 4) is “moot” as to Vang, Baker, and Giannini. Defendants further assert that Plaintiff does
6 not sufficiently allege personal negligent conduct by Giannini, Vang, or Baker to sustain the
7 negligence claim (Claim 7) and that California Government Code § 821.6 absolutely immunizes
8 all public employees from the malicious prosecution claim (Claim 6).
9 C. Discussion
10 Having considered the parties’ arguments, the Court finds it necessary to clarify the
11 cognizable state law claims. The Court will do so in conjunction with Defendants’ motion to
12 dismiss.
13 Claim 3: Assault and Battery
14 Defendants seek dismissal of Claim 3 for assault and battery as to Defendants Vang and
15 Baker. (ECF No. 36 at 4.) To clarify, this action does not proceed on state law assault and
16 battery claims against Defendant Baker. (See ECF No. 27 at 13, 17; ECF No. 28 at 3.)
17 Further, as to Defendant Vang, the Court’s June 3, 2025 findings and recommendations
18 recommended this action proceed against Defendants Mix and Vang for state law assault and
19 battery, (ECF No. 27 at 17). However, a closer reading of those findings and recommendations
20 reveals the undersigned’s express finding that “Plaintiff’s fourth amended complaint states
21 cognizable state law claims against Defendants Mix and Giannini for assault and battery,” (ECF
22 No. 27 at 13 (emphasis added)). Despite this finding, the Court inadvertently recommended that
23 the action proceed against Defendants Mix and Vang for state law assault and battery, (ECF No.
24 27 at 17), which the district judge adopted, (ECF No. 28). Given the Court’s express finding, and
25 not the mistaken recommendation, the action should proceed on the cognizable state law claims
26 for assault and battery against Defendants Mix and Giannini, and not Defendant Vang (or
27 Defendant Baker). Indeed, Plaintiff admits that he “did not in fact plead any facts alleging assault
28 & battery regarding Defendants Vang or Baker.” (ECF No. 39 at 2.)
1 For these reasons, the Court will recommend that (1) Defendants’ motion to dismiss the
2 state law claims for assault and battery against Defendant Baker be denied as moot; (2)
3 Defendants’ motion to dismiss the state law claims for assault and battery against Defendant
4 Vang be granted; and (3) Plaintiff’s state law assault and battery claims proceed against
5 Defendants Mix and Giannini.
6 Claim 4 – Intentional Infliction of Emotional Distress
7 Defendants seek dismissal of Plaintiff’s state law claim for intentional infliction of
8 emotional distress (Claim 4) against Defendants Giannini, Baker, and Vang. (ECF No. 36 at 5-6.)
9 Defendants’ motion to dismiss is unnecessary. Plaintiff’s claim for intentional infliction of
10 emotional distress proceeds only against Defendant Mix, and not against Defendants Giannini,
11 Baker, or Vang. (See ECF Nos. 27 at 14, 17-18; ECF No. 28 at 3.) For this reason, the Court will
12 recommend that Defendants’ motion to dismiss Plaintiff’s claim for intentional infliction of
13 emotional distress as to Defendants Giannini, Baker, and Vang be denied as moot.
14 Claim 6 – Malicious Prosecution
15 Defendants seek to dismiss Plaintiff’s state law claim for malicious prosecution (Claim 6)
16 as barred by California Government Code § 821.6. (ECF No. 36 at 6-7.) Defendants’ motion to
17 dismiss this claim is unnecessary. The action does not proceed on a state law claim for malicious
18 prosecution against any defendant. (See ECF No. 27 at 14-15, 17-18; ECF No. 28 at 3.) For this
19 reason, the Court will recommend that Defendants’ motion to dismiss Plaintiff’s state law claim
20 for malicious prosecution be denied as moot.
21 Claim 7 – Negligence
22 Defendants argue Plaintiff’s state law claim for negligence (Claim 7) as to Defendants
23 Giannini, Baker, and Baker should be dismissed because these defendants are immunized by
24 California Government Code § 820.8.
25 Section 820.8 states that “[e]xcept as otherwise provided by statute, a public employee is
26 not liable for an injury caused by the act or omission of another person Nothing in this section
27 exonerates a public employee from liability for injury proximately caused by his own negligent or
28 wrongful act or omission. Cal. Gov’t Code § 820.8.
1 Defendants contend that Plaintiff’s claim of negligence is pled in a conclusory fashion,
2 improperly lumps all defendants together, and seeks to reframe alleged intentional conduct as
3 negligence. Defendants further contend that Plaintiff does not identify how each defendant
4 individually acted negligently, and does not plead that Defendants Giannini, Baker, and Vang
5 engaged in any wrongful conduct aside from Defendant Mix’s own action or sufficiently plead
6 that Giannini, Baker, and Vang could have reasonably intervened during Defendant Mix’s alleged
7 assault and battery. Defendants (ECF No. 36 at 6.)
8 “The elements of a negligence cause of action are: (1) a legal duty to use due care; (2) a
9 breach of that duty; (3) the breach was the proximate or legal cause of the resulting injury; and (4)
10 actual loss or damage resulting from the breach of the duty of care.” Brown v. Ransweiler, 171
11 Cal. App. 4th 516, 534 (2009) (citing Ladd v. County of San Mateo, 12 Cal. 4th 913, 917 (1996)).
12 In screening the fourth amended complaint, the Court summarized the negligence
13 allegations as follows:
14 All Defendants breached their duty of care to ensure that Plaintiff wasn’t beaten
in custody and left with multiple injuries. They had an obligation to ensure
15 malicious harm or excessive force against Plaintiff was not done in an unlawful
manner, as they have a job to protect the inmate population and staff from any
16 unwanton harm or injury, which could be prevented. All defendants had an
obligation but failed to act on that obligation deliberately by standing and just
17 watching and aiding in the attack.
18 (ECF No. 27 at 6.)
19 The Court also found that Plaintiff states a cognizable Eighth Amendment excessive force
20 claim against Defendant Giannini and a cognizable Eighth Amendment failure to protect claim
21 against Defendants Giannini, Vang, and Baker. (ECF No. 27 at 10-11; ECF No. 28 at 3.)
22 Plaintiff’s negligence claim based on the same factual allegations supporting his federal claims
23 for failure to protect and excessive force are sufficient. See, e.g., Rosenblum v. Blackstone, No.
24 SA CV 18-966-JVS(E), 2020 WL 1049916, at *11 (C.D. Cal. Jan. 22, 2020) (concluding
25 negligence claims based on allegations supporting federal claims for failure to protect and
26 excessive force sufficient). Therefore, the Court cannot conclude at the motion to dismiss stage
27 that Defendants are entitled to immunity under section 820.8. The Court will recommend that
28 Defendants’ motion to dismiss the negligence claim be denied.
1 IV. Conclusion and Recommendation
2 Based on the foregoing, it is HEREBY RECOMMENDED that Defendants’ partial
3 motion to dismiss, (ECF No. 36), be granted in part and denied in part as follows:
4 1. Defendants’ motion to dismiss Plaintiff’s state law assault and battery claims
5 against Defendant Baker be denied as moot;
6 2. Defendants’ motion to dismiss Plaintiff’s state law assault and battery claims
7 against Defendant Vang be granted and Plaintiff’s state law assault and battery claims
8 proceed against Defendants Mix and Giannini;
9 3. Defendants’ motion to dismiss Plaintiff’s state law intentional infliction of
10 emotional distress claim as to Defendants Giannini, Baker, and Vang be denied as moot;
11 4. Defendants’ motion to dismiss Plaintiff’s state law malicious prosecution claim be
12 denied as moot; and
13 5. Defendants’ motion to dismiss Plaintiff’s state law negligence claim be denied.
14 These Findings and Recommendations will be submitted to the United States District
15 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within
16 fourteen (14) days after being served with these Findings and Recommendations, the parties may
17 file written objections with the court. The document should be captioned “Objections to
18 Magistrate Judge’s Findings and Recommendations.” Objections, if any, shall not exceed
19 fifteen (15) pages or include exhibits. Exhibits may be referenced by document and page
20 number if already in the record before the Court. Any pages filed in excess of the 15-page
21 limit may not be considered. The parties are advised that failure to file objections within the
22 specified time may result in the waiver of the “right to challenge the magistrate’s factual
23 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838–39 (9th Cir. 2014) (citing Baxter
24 v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.
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27 Dated: June 25, 2026 /s/ Barbara A. McAuliffe _
UNITED STATES MAGISTRATE JUDGE
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