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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

GREGORY ESKRIDGE,

Plaintiff, No. CIV S-04-0865 LKK GGH P

vs.

A. CORREA, et al., ORDER AND

Defendants. FINDINGS & RECOMMENDATIONS

 /

I. Introduction

Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to

42 U.S.C. § 1983. Pending before the court is the motion to dismiss pursuant to Fed. R. Civ. P.

12(b) and (12(b)(6) filed December 1, 2004, on behalf of defendants Correa, Pliler and Surge. 

Defendant Surge moves to dismiss on grounds that plaintiff did not exhaust his administrative

remedies as to the claims made against him. Defendants Correa and Pliler move to dismiss on

grounds that plaintiff has failed to state a claim against them upon which relief may be granted. 

Also pending is the motion to dismiss pursuant to Fed. R. Civ. P. 12(b) and (b)(6)

filed February 8, 2005, on behalf of defendant Elsberry. Defendant Elsberry moves to dismiss on

grounds that plaintiff did not exhaust his administrative remedies and failed to state a claim. 

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After carefully considering the record, the court recommends that the motions to

dismiss based on failure to exhaust administrative remedies be denied. The court orders that the

motions to dismiss for failure to state a claim be granted.

II. Plaintiff’s Claims

This action is proceeding on the original complaint filed April 30, 2004. The

defendants are Correctional Sergeant Elsberry, Warden Pliler, Chief of Inmate Appeals Surges

and Correctional Officer Correa.

Plaintiff alleges that on March 23, 2003, inmates Storrs, Flores and Walker

walked to the first tier of A section. According to the incident report, defendant Correa observed

inmate Walker put his hands up in front of his body in a defensive manner. Inmates Storrs and

Flores were standing next to inmate Walker with their hands at their sides. Defendant Correa

ordered the inmates to get down and told Officer Armstrong to activate the alarm. Inmate

Walker then picked up a trash can and ran down to the day room, followed by inmates Storrs and

Flores.

Defendant Correa again ordered the inmates to get down. They refused the order. 

Defendant Correa then retrieved a 37 mm launcher and again ordered the inmates to get down. 

They again refused the order. Defendant Correa saw a sharp metal stabbing instrument in Storr’s

right hand. Defendant Correa then fired one 37 mm 264R multiple baton round in front of Storrs

and ordered the inmates to get down. The inmates remained standing. Defendant Correa then

fired one 40 mm direct impact round at Storr’s lower torso. Storrs then turn and ran toward the

stairs with the weapon in his hand. Defendant Correa fired a second 40 mm direct impact round

at Storr’s lower torso. At this time, inmate Walker remained standing with the trash can as a

defensive shield and inmate Flores stood with his fists in front of his body in a fighting stance. 

Storrs, Walker and Flores refused another order to get down as Storrs ran up the

stairs to the second tier. As Storrs ran across the second tier, defendant Correa fired a third 40

mm direct impact round at Storr’s lower torso. The round struck the window of plaintiff’s cell

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and shattered the glass. The glass struck plaintiff in his left eye. Plaintiff was treated for glass

fragments in his eye and returned to his cell. The weapon defendant Correa saw in inmate Storr’s

hand was not found.

As legal claims, plaintiff alleges that defendant Correa violated his Eighth

Amendment rights by using excessive force. Plaintiff argues that defendant Correa had an

opportunity to stop the attack on inmate Walker while they were all in the day room but failed to

do so. Plaintiff argues that he was injured because defendant Correa did not take steps to prevent

the incident from escalating.

Plaintiff contends that defendants Pliler, Elsberry and Surges approved of

defendant Correa’s conduct when they denied plaintiff’s administrative appeals regarding the

incident. Plaintiff also alleges that defendant Pliler failed to properly train defendant Correa in

the proper use of force. Plaintiff also alleges that defendant Surges failed to properly investigate

plaintiff’s complaint when he considered plaintiff’s administrative appeal. Plaintiff also argues

that these defendants conspired to cover up defendant Correa’s conduct.

III. Failure to Exhaust Administrative Remedies

42 U.S.C. § 1997e(a) provides that, “[n]o action shall be brought with respect to

prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in

any jail, prison, or other correctional facility until such administrative remedies as are available

are exhausted.” In order for California prisoners to exhaust administrative remedies, they must

proceed through several levels of appeal: 1) informal resolution, 2) formal written appeal on a

CDC 602 inmate appeal form, 3) second level appeal to the institution head or designee, and 

4) third level appeal to the Director of the California Department of Corrections. Barry v.

Ratelle, 985 F. Supp. 1235, 1237 (S.D. Cal. 1997) (citing Cal. Code Regs. tit. 15, § 3084.5). A

final decision from the Director’s level of review satisfies the exhaustion requirement. Id. at

1237-38.

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In Booth v. Churner, 121 S. Ct. 1819 (2001) the Supreme Court held that inmates

must exhaust administrative remedies, regardless of the relief offered through administrative

procedures. 121 S. Ct. at 1825. Therefore, inmates seeking money damages must completely

exhaust their administrative remedies. 42 U.S.C. § 1997e(a) provides that no action shall be

brought with respect to prison conditions until such administrative remedies as are available are

exhausted. McKinney v. Carey, 311 F.3d 1198 (9th Cir. 2002).

On April 8, 2003, plaintiff submitted an administrative appeal regarding the

incident involving defendant Correa. December 1, 2004, Motion to Dismiss, Exhibit A. This

grievance made no reference to defendant Surges. Id. In 2003 plaintiff submitted no grievances

concerning defendant Surges regarding the incident. Id., Exhibit B. Defendants argue that

because the grievance filed by plaintiff regarding the incident made no reference to defendant

Surges tacitly approving defendant Correa’s actions or failing to investigate the matter, plaintiff

has not exhausted his administrative remedies as to this defendant. 

Defendant Surges denied plaintiff’s Director’s Level regarding the incident

involving defendant Correa. Motion to Dismiss, Exhibit A. In the instant action, plaintiff’s

claims against defendant Surges are based on his denial of this appeal. Requiring plaintiff to file

another round of appeals based on defendant’s denial of his Director Level Appeal does not make

sense. Accordingly, the court finds that plaintiff has exhausted his administrative remedies as to

the claims against defendant Surges. 

Defendants argue that the administrative appeal filed by plaintiff regarding the

shooting incident did not allege that defendant Elsberry tacitly approved of defendant Correa’s

actions or conspired to cover up the incident. Feb. 8, 2005, Motion to Dismiss, Exhibit A. 

Defendants also state that in 2003 plaintiff submitted no grievance concerning defendant Elsberry

and the incident. Id., Exhibit B. 

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Defendant Elsberry denied plaintiff’s First Level Appeal regarding the shooting

incident. Id., Exhibit A. Plaintiff’s claims against this defendant concern his handling of this

appeal. Because plaintiff appealed defendant Elsberry’s decision to the second and third levels,

the court finds that he has exhausted the claims against this defendant. The court will not require

plaintiff to file another round of appeals regarding defendant Elsberry’s denial of his First Level

appeal. The motion to dismiss for failure to exhaust administrative remedies as to defendant

Elsberry should be denied.

IV. Failure to State a Claim

A. Legal Standard 

A complaint should not be dismissed under Rule 12(b)(6) unless it appears

beyond doubt that plaintiff cannot prove any set of facts consistent with his allegations which

would entitle him to relief. NOW, Inc. v. Schiedler, 510 U.S. 249, 256, 114 S. Ct. 798, 803 

(1994); Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S. Ct. 2229, 2232 (1984), citing Conley

v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 101 (1957), Cervantes v. City of San Diego, 5 F.3d

1273, 1274-75 (9th Cir. 1993). Dismissal of the complaint, or any claim within it, “can be based

on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a

cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990);

see also Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984). 

In considering a motion to dismiss, the court must accept as true the allegations of

the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740, 96 S.

Ct. 1848, 1850 (1976), construe the pleading in the light most favorable to the party opposing the

motion and resolve all doubts in the pleader’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421,

89 S. Ct. 1843, 1849, reh’g denied, 396 U.S. 869, 90 S. Ct. 35 (1969). The court will “‘presume

that general allegations embrace those specific facts that are necessary to support the claim.’”

NOW, 510 U.S. at 256, 114 S. Ct. at 803, quoting Lujan v. Defenders of Wildlife, 504 U.S. 555,

561, 112 S. Ct. 2130, 2137 (1992). Moreover, pro se pleadings are held to a less stringent

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standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 596

(1972).

The court may consider facts established by exhibits attached to the complaint. 

Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also

consider facts which may be judicially noticed, Mullis v. United States Bankruptcy Ct., 828 F.2d

1385, 1388 (9th Cir. 1987); and matters of public record, including pleadings, orders, and other

papers filed with the court, Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir.

1986). The court need not accept legal conclusions “cast in the form of factual allegations.” 

Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). 

A pro se litigant is entitled to notice of the deficiencies in the complaint and an

opportunity to amend, unless the complaint’s deficiencies could not be cured by amendment. See

Noll v. Carlson, 809 F. 2d 1446, 1448 (9th Cir. 1987).

Defendant Correa

Plaintiff alleges that defendant Correa used excessive force in violation of the

Eighth Amendment. “Where a prison security measure is undertaken ostensibly for the

protection of prison officials and the inmate population, force is deemed legitimate as long as it

is applied ‘in a good faith effort to maintain or restore discipline [and not] maliciously and

sadistically for the very purpose of causing harm.’” Jeffers v. Gomez, 267 F.3d 895, 910-911 (9th

Cir. 2001), quoting Whitley v. Albers, 475 U.S. 312, 320-21, 106 S.Ct. 1078 (1986). 

Defendants argue that the claim against defendant Correa should be dismissed

because plaintiff has failed to plead facts demonstrating that defendant fired the weapon

maliciously and sadistically for the very purpose of causing harm to plaintiff. Defendants argue

that Correa accidently fired a shot that broke plaintiff’s cell window. 

/////

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Plaintiff’s theory is that defendant Correa acted with improper intent when he shot

at inmate Storrs. Plaintiff does not claim that defendant intended to harm plaintiff. The doctrine

of transferred intent applies to the Eighth Amendment. Robins v. Meecham, 60 F.3d 1436 (9th

Cir.1995). In Robins, plaintiff Robbins brought a § 1983 action alleging that his Eighth

Amendment rights were violated when a correctional officer fired at inmate Echavarria and it

ricocheted and hit the plaintiff. 60 F.3d at 1438. The Ninth Circuit stated that “[w]hom the

prison officials shot, Robins or Echavarria, is not relevant–what is relevant is that they fired a

shotgun blast at an inmate. It is this conduct that the Eighth Amendment is designed to restrain.” 

Id. at 1440.

In the instant case, plaintiff has alleged that defendant Correa could have stopped

the fight sooner but let it get out of control. Plaintiff also observes that the weapon defendant

Correa claims he saw inmate Storrs holding was never found. In his opposition, plaintiff argues

that defendant Correa was engaging in “blood sport.” 

The complaint alleges that the fighting inmates refused five orders to get down

from defendant Correa before he fired the shot that led to plaintiff’s injuries. The complaint also

alleges that defendant Correa had fired three separate rounds of baton rounds before he fired the

round that led to plaintiff’s injuries. When defendant Correa fired the round at inmate Storrs that

caused plaintiff’s injuries, inmate Storrs had run up to the second tier. Based on these

circumstances, the court does not find that plaintiff has pled sufficient facts demonstrating that

defendant Correa acted sadistically and maliciously when he fired the round that led to plaintiff’s

injuries. The facts, as pled, suggest that defendant Correa was legitimately trying to restore

discipline.

That the weapon defendant Correa reported inmate Storrs as holding was not

found does not undercut the court’s finding. Even if inmate Storrs had not been holding a

weapon, the facts as pled demonstrate that defendant Correa was making a good faith effort to

restore discipline. Plaintiff’s claim that defendant Correa let the fight escalate is not supported

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by the facts as pled. As stated above, the inmates repeatedly refused orders to get down and

continued to fight after having been fired upon several times. These facts do not suggest that

defendant Correa let the fight go on in order to engage in “blood sport.”

For the reasons discussed above, the court grants defendants’ motion to dismiss

for failure to state a claim as to defendant Correa. 

Defendant Pliler

Defendant argues that plaintiff has not plead sufficient facts in support of his

claim that defendant Pliler failed to train her employees in the use of force. In order to succeed

on a failure to train claim, plaintiff must plead facts demonstrating that defendant Pliler made a

deliberate or conscious choice to fail to train her employees adequately. Boyd v. Benton County,

374 F.3d 773, 784 (9th Cir. 2004). Plaintiff has pled no facts demonstrating that defendant Pliler

consciously chose not to adequately train her employees regarding the use of force.

In addition, plaintiff cannot state a colorable failure to train claim against

defendant Pliler based on the shooting incident unless he can state a colorable claim against

defendant Correa. In other words, if defendant Correa did not violate plaintiff’s constitutional

rights, then defendant Pliler’s alleged failure to train defendant Correa did not violate plaintiff’s

constitutional rights. 

For the reasons discussed above, defendants’ motion to dismiss plaintiff’s failure

to train claim against defendant Pliler is granted.

Plaintiff also alleges that defendant Pliler approved of defendant Correa’s conduct

when she denied plaintiff’s administrative appeal. Plaintiff also alleges that defendant Pliler

conspired with the other defendants to cover up defendant Correa’s conduct. Although

defendants have not moved to dismiss these claims, these claims are dismissed for failing to state

a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(the court may dismiss the case

at any time if it determines that it fails to state a claim on which relief may be granted).

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Defendants sued in their individual capacity must be alleged to have: personally

participated in the alleged deprivation of constitutional rights; knew of the violations and failed

to act to prevent them; or that they implemented a policy that repudiates constitutional rights and

was the moving force behind the alleged violations. Larez v. City of Los Angeles, 946 F.2d 630,

646 (9th Cir. 1991); Hansen v. Black, 885 F.2d 642 (9th Cir. 1989); Taylor v. List, 880 F.2d

1040 (9th Cir. 1989). “Although a § 1983 claim has been described as ‘a species of tort liability,’

Imbler v. Pachtman, 424 U.S. 409, 417, 96 S. Ct. 984, 988, 47 L.Ed.2d 128, it is perfectly clear

that not every injury in which a state official has played some part is actionable under that

statute.” Martinez v. State of California, 444 U.S. 277, 285, 100 S. Ct. 553, 559 (1980). 

“Without proximate cause, there is no § 1983 liability.” Van Ort v. Estate of Stanewich, 92 F.3d

831, 837 (9th Cir. 1996). 

The search, which was performed in accordance with this

constitutionally valid strip search policy, was subsequently ratified

by the School Board when Mr. Williams filed a grievance. 

Therefore, Williams’ only grasp at evoking municipal liability

under § 1983 is to show that this subsequent ratification is

sufficient to establish the necessary causation requirements. Based

on the facts, the Board believed Ellington and his colleagues were

justified in conducting the search of Williams. There was no

history that the policy had been repeatedly or even sporadically

misapplied by school officials in the past. Consequently, the

School Board cannot be held liable for the ratification of the search

in question, because this single, isolated decision can hardly

constitute the “moving force” behind the alleged constitutional

deprivation.

Williams v. Ellington, 936 F.2d 881, 884-885 (9th Cir. 1991).

 The court is unwilling to adopt a rule that anyone involved in adjudicating

grievances after the fact is per se potentially liable under a ratification theory. This is not to say

that persons involved in adjudicating administrative disputes, or persons to whom complaints are

sometimes made, can never be liable under a ratification theory. If a reviewing official’s

previous rejections of complaints can be construed as an automatic whitewash which may have

influenced the acting defendants in plaintiff’s case, i.e., they had no concern of ever being

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reprimanded, a ratifying official may be liable for having put a defective “policy” in place. 

However, in the absence of any facts asserting that the reviewer’s actions in the past, in

substantially similar situations, may have encouraged the alleged actors in the instant case to

violated constitutional rights, plaintiff has not set forth a claim against grievance reviewers. 

This fact alone is not sufficient to demonstrate a conspiracy. Moreover, plaintiff cannot state a

colorable conspiracy claim against defendant Plilier until he states a colorable constitutional

claim against defendant Correa. 

Defendant Elsberry

Plaintiff alleges that defendant Elsberry approved defendant Correa’s conduct by

denying plaintiff’s administrative appeal regarding the matter. Plaintiff also alleges that

defendant Correa conspired with the other defendants to cover up the incident. The only fact

pled by plaintiff in support of his conspiracy claim against defendant Elsberry is that he denied

plaintiff’s administrative appeal. This fact alone is not sufficient to demonstrate a conspiracy. 

Moreover, plaintiff cannot state a colorable conspiracy claim against defendant Elsberry until he

states a colorable constitutional claim against defendant Correa. For these reasons, the motion to

dismiss for failure to state a claim as to defendant Elsberry is granted. 

Defendant Surges

 Although defendants have not moved to dismiss the claims against defendant

Surges for failure to state a claim, the court orders these claims dismissed pursuant to 28 U.S.C.

§ 1915(e)(2).

Plaintiff alleges that defendant Surges approved of defendant Correa’s conduct

when he denied plaintiff’s administrative appeals. Plaintiff also alleges that defendant Surges

failed to properly investigate plaintiff’s administrative appeal and conspired with the other

defendants to cover up defendant Correa’s conduct. 

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The court construes the complaint to be claiming that defendant Surges conspired

to cover up defendant Correa’s conduct by not adequately investigating plaintiff’s appeal and by

denying the appeal. These allegations alone do not demonstrate a conspiracy with the other

defendants to cover up defendant Correa’s alleged misconduct. Moreover, plaintiff cannot state a

colorable conspiracy claim against defendant Surges until he states a colorable constitutional

claim against defendant Correa. For these reasons, the claims against defendant Surges are

dismissed with leave to amend. 

Accordingly, IT IS HEREBY ORDERED that:

1. The motion to dismiss filed December 1, 2004, is granted on grounds that the

complaint fails to state a colorable claim for relief as to defendants Correa and Pliler;

2. The motion to dismiss filed February 8, 2005, is granted on grounds that the

complaint fails to state a colorable claim for relief against defendant Elsbery;

3. The claims against defendant Surges are dismissed pursuant to 28 U.S.C. §

1915(e)(2);

4. Plaintiff is granted thirty days from the date of this order to file an amended

complaint; failure to comply with this order will result in a recommendation of dismissal of this

action; defendants shall not respond to the amended complaint until ordered to by the court;

IT IS HEREBY RECOMMENDED that:

1. The motion to dismiss filed December 1, 2004, on grounds that the claims

against defendants Surges are not administratively exhausted be denied;

2. The motion to dismiss filed February 8, 2005, on grounds that the claims

against defendant Elsberry are not administratively exhausted be denied.

These findings and recommendations are submitted to the United States District

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty

days after being served with these findings and recommendations, any party may file written

objections with the court and serve a copy on all parties. Such a document should be captioned 

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

shall be served and filed within ten days after service of the objections. The parties are advised

that failure to file objections within the specified time may waive the right to appeal the District

Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 

DATED: 4/22/05

/s/ Gregory G. Hollows

 

GREGORY G. HOLLOWS

UNITED STATES MAGISTRATE JUDGE

ggh:kj

esk865.mtd

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