GALLARDO v. DICARLO, 203 F.Supp.2d 1160 (C.D.Cal. 05/13/2002)

[1] United States District Court, Central District of California

[2] No. ED CV 01-413RT(SGLX)

[3] 203 F. Supp.2d 1160, 2002

[4] May 13, 2002

[5] FRANK GALLARDO,
V.
WARDEN LORI DICARLO OF CALIFORNIA STATE PRISON AT CHINO

[6] John Amoroso, Esq., Amoroso Law Corporation, Los Angeles, for Plaintiff.

[7] Bill Lockyer, State Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Paul D. Gifford, Senior Assistant Attorney General, Darrell L. Lepkowsky, Supervising Deputy Attorney General, Robert D. Wilson, Deputy Attorney General, Los Angeles, for Defendant.

[8] The opinion of the court was delivered by: Timlin, District Judge.

[9]

PROCEEDINGS: ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT LORI DICARLO'S MOTION TO DISMISS THE FIRST AMENDED COMPLAINT PURSUANT TO FED. R. CIV. P. 12(B)(6).

[10] The court, Judge Robert J. Timlin, has read and considered Warden Lori DiCarlo ("DiCarlo")'s Motion to dismiss the First Amended Complaint ("FAC") pursuant to Federal Rules of Civil Procedure, Rule 12(b)(6) ("Rule 12(b)(6)"); Plaintiff Frank Gallardo ("Gallardo")'s opposition; and DiCarlo's reply. Based on such consideration, the court concludes as follows:

[11] I.

[12] BACKGROUND*fn1

[13] On February 7, 2000, Gallardo, an inmate at the Chino State Prison, was physically assaulted by California Department of Corrections ("CDC") correctional officers without provocation or other justification. The officers battered Gallardo with their fists and feet, which caused "grave physical injuries to his body and nervous system" and required Gallardo to be hospitalized for 31 days. Less than two weeks after Gallardo's release from the hospital, on March 24, 2000, CDC correctional officers handcuffed Gallardo behind his back and forcefully threw him into his cell, causing injuries to his neck, back, knees, and wrists. The injuries to Gallardo's back and knee are permanent.

[14] Gallardo's FAC alleges 1) against the Defendants Does 1 to 10 a claim for a violation of 42 U.S.C. § 1983 ("Section 1983") by depriving Gallardo of his constitutional rights under the Eighth Amendment to the United States Constitution; 2) against Warden DiCarlo a claim for a violation of Section 1983 by depriving Gallardo of his constitutional rights under the Eighth Amendment to the United States Constitution; and 3) against all Defendants a supplemental state claim for assault and battery.

[15] II.

[16] ANALYSIS

[17]

A. Legal Standard Governing the Motion to Dismiss Pursuant to Rule 12(b)(6)

[18] DiCarlo contends that a heightened pleading standard applies in an action, like the one at bar, when defendant asserts qualified immunity and defendant's knowledge or intent is an element of plaintiffs constitutional claim. Indeed, plaintiffs alleging against prison officials a violation of the cruel and unusual punishment provision of the Eighth Amendment based on excessive force must ultimately prove defendant's malicious knowledge or intent. See, e.g., Farmer v. Brennan, 511 U.S. 825, 835-36, 114 S.Ct. 1970, 1978, 128 L.Ed.2d 811 (1994).

[19] It is true that the Ninth Circuit has established a heightened pleading standard in" § 1983 cases where the defendant is entitled to assert the qualified immunity defense and where her or his knowledge or intent is an element of the plaintiffs constitutional tort." Lee v. City of Los Angeles, 250 F.3d 668, 679-80 & n. 6 (9th Cir. 2001) (quoting Branch v. Tunnell, 14 F.3d 449, 452 (9th Cir. 1994)).*fn2 The Circuit's heightened pleading standard is as follows:

[20]

[I]n order to survive a motion to dismiss, plaintiffs must state in their complaint nonconclusory allegations setting forth evidence of unlawful intent. The allegations of facts must be specific and concrete enough to enable the defendants to prepare a response, and where appropriate, a motion for summary judgment based on qualified immunity.

[21] Branch, 14 F.3d at 452.

[22] However, the United States Supreme Court has precluded the use of a heightened pleading standard in such a situation. See Crawford-El v. Britton, 523 U.S. 574, 594, 118 S.Ct. 1584, 1594-95, 140 L.Ed.2d 759 (1998). In 1998, the Crawford-El Court reviewed the heightened pleading standard of the District of Columbia Circuit,*fn3 see, e.g., Siegert v. Gilley, 895 F.2d 797, 801-02 (D.C.Cir. 1990), aff'd on other grounds, 500 U.S. 226, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991), whose "lead" the Ninth Circuit "follow[ed]" in devising its own heightened pleading standard, see Branch, 14 F.3d at 452. Commenting that for the District of Columbia Circuit "to change the burden of proof for an entire category of claims would stray from the traditional limits on judicial authority," the court struck down the D.C. Circuit's heightened pleading standard formerly applicable to "damage actions against government officials." Crawford-El, 523 U.S. at 580, 118 S.Ct. at 1588 (citation omitted).*fn4

[23] Post-Crawford-El courts of appeal opinions have expressed near-unanimity that their respective circuits' heightened pleading standards have been rendered inapplicable by Crawford-El. The Seventh Circuit, citing Crawford-El, has stated that "[c]ivil rights complaints are not held to a higher standard than complaints in other civil litigation." Nance v. Vieregge, 147 F.3d 589, 590 (7th Cir. 1998) (Easterbrook, J.); see also Walker v. Thompson, 288 F.3d 1005, 1006 (7th Cir. 2002) (Posner, J.) ("As the Supreme Court has recently affirmed . . . and we have held time and again, . . . there is no requirement in federal suits of pleading the facts or the elements of a claim, with the exceptions listed in Rule 9.") (citing Swierkiewicz, 122 S.Ct. at 995; Higgs v. Carter, 286 F.3d 437, 439 (7th Cir. 2002); Beanstalk Group, Inc. v. AM Gen. Corp., 283 F.3d 856, 863 (7th Cir. 2002)). The D.C. Circuit similarly enforced Crawford-El: "plaintiffs making constitutional claims based on improper motive need not meet any special heightened pleading standard." Harbury v. Deutch, 233 F.3d 596, 611 (D.C.Cir. 2000) (citing Crawford-El), cert. granted sub nom. Christopher v. Harbury, ___ U.S. ___, 122 S.Ct. 663, 151 L.Ed.2d 578 (2001).

[24] The Third, Sixth, and Tenth Circuits, which also had adopted heightened pleading standards for such Section 1983 claims, likewise agree that Crawford-El foreclosed the application of their heightened pleading standards. See Ray v. Kertes, 285 F.3d 287, 297-98 (3d Cir. 2002) (reversing dismissal of civil rights plaintiffs complaint based, in part, on the district court's application of a heightened pleading standard, and commenting that "[a]s the [Supreme] Court pointed out, heightened pleading standards are inconsistent with the `liberal system' of `notice pleading' set up by the federal rules.'"); Currier v. Doran, 242 F.3d 905, 912-16, 916 (10th Cir. 2001) (holding that the Tenth Circuit's "heightened pleading requirement cannot survive Crawford-El"); Thaddeus-X v. Blatter, 175 F.3d 378, 399 (6th Cir. 1999) (en banc) (plurality) (citing Crawford-El for the proposition that "plaintiff cannot be required to meet a heightened burden of proof simply because his cause of action includes a motive element," and stating that "Crawford-El disallows any type of heightened pleading standard").

[25] The First Circuit is the only court to have held that its heightened pleading standard survives Crawford-El. See Judge v. City of Lowell, 160 F.3d 67 (1st Cir. 1998). The First Circuit focused on one sentence in Crawford-El in ruling that its heightened pleading standard, which, admittedly, mimics this Circuit's standard,*fn5 does not contravene Crawford-El: "[T]he [trial] court may insist that the plaintiff put forward specific, nonconclusory factual allegations that establish improper motive causing cognizable injury in order to survive a prediscovery motion for dismissal or summary judgment." Judge, 160 F.3d at 74 (quoting Crawford-El, 523 U.S. at 598, 118 S.Ct. at 1596-97) (internal quotation omitted).

[26] However, Judge takes this lone sentence out of context, and thus significantly misreads Crawford-El. The text quoted by the First Circuit was part of the Crawford-El Court's opinion that responded to the concern that eliminating a heightened pleading requirement would insufficiently "protect[] the substance of the qualified immunity defense." Crawford-El, 523 U.S. at 597, 118 S.Ct. at 1596. The Crawford-El Court stated:

[27]

When a plaintiff files a complaint against a public official alleging a claim that requires proof of wrongful motive, the trial court must exercise its discretion in a way that protects the substance of the qualified immunity defense. It must exercise its discretion so that officials are not subjected to unnecessary and burdensome discovery or trial proceedings. The district judge has two primary options prior to permitting any discovery at all. First, the court may order a reply to the defendant's or a third party's answer under Federal Rule of Civil Procedure 7(a), or grant the defendant's motion for a more definite statement under Rule 12(e). Thus, the court may insist that the plaintiff put forward specific nonconclusory allegations that establish improper motive causiug cognizable injury in order to survive a prediscovery motion for dismissal or summary judgment.

[28] Id. at 598, 118 S.Ct. at 1596-97 (emphasis added). The context of the Court's opinion reveals that the Court was actually stating that trial courts can employ safeguards other than heightened pleading standards to regulate such claims, obviating the need for a heightened pleading standard. The Court's use of the term "Thus" preceding the sentence quoted by the First Circuit signifies that the sentence in question refers to the text preceding it. That is, a trial court may require plaintiff to "put forward specific nonconclusory factual allegations" prior to the commencement of discovery in one of two ways: either 1) by ordering that plaintiffs reply to defendant's answer include such allegations pursuant to Rule 7(a) of the Federal Rules of Civil Procedure; or 2) by granting a motion for a more definite statement pursuant to Rule 12(e) of the Federal Rules of Civil Procedure.*fn6 Absent either of these two scenarios-which is present neither in this case nor in Judge-Crawford-El prohibits a court from requiring a civil rights plaintiff to meet any heightened pleading standard.*fn7

[29] While the Tenth Circuit implicitly called into question the Ninth Circuit's continued use of a heightened pleading standard, see Currier, 242 F.3d at 913 (citing Branch as an example of a heightened pleading standard adopted prior to Crawford-El), neither the Ninth Circuit nor any district court within the Circuit in a published order has examined the Circuit's heightened pleading standard in light of Crawford-El. As discussed above, this court concludes that the Ninth Circuit's heightened pleading standard does not survive Crawford-El, and therefore the court will apply a non-heightened pleading standard in determining DiCarlo's Motion to dismiss Gallardo's FAC.

[30] A Rule 12(b)(6) motion to dismiss for failure to state a claim is disfavored, see Hall v. City of Santa Barbara, 833 F.2d 1270, 1274 (9th Cir. 1986), and may be granted only in extraordinary circumstances, see Gilligan v. Jamco Develop. Corp., 108 F.3d 246, 249 (9th Cir. 1997) (citing a "powerful presumption against rejecting pleadings for failure to state a claim"). Essentially, a motion to dismiss for failure to state a claim tests plaintiffs compliance with the liberal requirements of Rule 8(a)(2) of the Federal Rules of Civil Procedure ("Rule 8(a)(2)"). See 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1356, at 294-96 (1990).

[31] The burden imposed by Rule 8(a)(2) is a minimal one. Rule 8(a)(2) requires parties seeking relief in federal court by way of complaint, counterclaim, cross-claim, or third party complaint, to include "a short and plain statement of the claim showing that the pleader is entitled to relief." Rule 8(a)(2). It is the burden of the party bringing a motion to dismiss for failure to state a claim to demonstrate that the requirements of Rule 8(a)(2) have not been met. See Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991) ("[U]nder Rule 12(b)(6) the defendant has the burden of showing no claim has been stated.").

[32] As the Supreme Court has noted, when evaluating a complaint for failure to state a claim, the question is not whether the facts stated in the complaint, if proven, would entitle the plaintiff to any relief. Instead, the question is whether there is any set of "facts that could be proved consistent with the allegations of the complaint" that would entitle plaintiff to some relief. See Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984).*fn8

[33] B. FAC's Compliance With Notice Pleading Standard

[34] Gallardo contends that DiCarlo inflicted cruel and unusual punishment upon him, in violation of his Eighth Amendment rights.*fn9 While prisoners forfeit many liberties by dint of their incarceration, see, e.g., Hudson v. Palmer, 468 U.S. 517, 525-26, 104 S.Ct. 3194, 3200, 82 L.Ed.2d 393 (1984) (prisoners have no reasonable expectation of privacy in their prison cells), they nonetheless possess most constitutional rights. Cf. Madrid v. Gomez, 889 F. Supp. 1146, 1244 (N.D.Cal. 1995) (Henderson, C.J.) ("Nonetheless, those who have transgressed the law are still fellow human beings-most of whom will one day return to society."). Among rights they retain is the right to be free from cruel and unusual punishment. See, e.g., County of Sacramento v. Lewis, 523 U.S. 833, 849-50, 118 S.Ct. 1708, 1718, 140 L.Ed.2d 1043 (1998) (referring to prisoner's Eighth Amendment rights); see also Graham v. Connor, 490 U.S. 386, 395 n. 10, 109 S.Ct. 1865, 1871 n. 10, 104 L.Ed.2d 443 (1989) (citing Whitley v. Albers, 475 U.S. 312, 327, 106 S.Ct. 1078, 1088, 89 L.Ed.2d 251 (1986)) ("After conviction, the Eighth Amendment serves as the primary source of substantive protection in cases where the deliberate use of force is challenged as excessive and unjustified.'"); Armendariz v. Penman, 75 F.3d 1311, 1319 (9th Cir. 1996) (Eighth Amendment is the exclusive claim upon which a prisoner may seek relief for excessive force under a Section 1983 action).

[35] In order to prevail on an Eighth Amendment claim, plaintiff must satisfy two elements:

[36]

First, the deprivation alleged must be, objectively, sufficiently serious; a prison official's act or omission must result in the denial of the minimal civilized measure of life's necessities. For a claim . . . based on a failure to prevent harm, the inmate must show that his is incarcerated under conditions posing a substantial risk of serious harm.

[37]

The second requirement follows from the principle that only the unnecessary and wanton infliction of pain implicates that Eighth Amendment. To violate the Cruel and Unusual Punishments Clause, a prison official must have a sufficiently culpable state of mind.

[38] Farmer, 511 U.S. at 834, 114 S.Ct. at 1977 (internal quotations and citations omitted).

[39] While the subjective prong of most Eighth Amendment claims are analyzed according to a "deliberate indifference" standard, see Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976), courts apply an even stricter standard to excessive force cases against prison officials and employees, see Farmer, 511 U.S. at 835, 114 S.Ct. at 1978. In such situations, plaintiff "must show that officials applied force `maliciously and sadistically' for the very purpose of causing harm, or, as the Court also put it, that officials used force with "a knowing willingness that [harm] [would] occur.'" Id. at 835-36, 114 S.Ct. at 1978 (quoting Hudson v. McMillian, 503 U.S. 1, 7, 112 S.Ct. 995, 999, 117 L.Ed.2d 156 (1992)).

[40] Without employing such trigger words as "malicious," "sadistic," or "knowing willingness," Gallardo's FAC provides, at the very least, a short and plain statement of the Eighth Amendment claim against DiCarlo showing that he is entitled to relief. Paragraph 14 of the FAC states:

[41]

DiCarlo permitted, encouraged, tolerated and ratified a pattern and practice of unjustified, unreasonable, and illegal use of excessive force by prison guards constituting cruel and unusual punishment on plaintiff: Defendant did not discipline or prosecute or in any manner deal with known incidents of use of excessive force by prison guards. [sic] and refused to investigate complains [sic] of incidents of wrongful use of excessive force by prison guards on inmates. By means of both inaction and cover-up of such use of excessive force, [DiCarlo] encouraged prison guards to use excessive force on inmates. [DiCarlo] has maintained no system of review of complain [sic] of the use of excessive force or to discipline prison guards who in fact use excessive force on prison inmates.