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1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

VANCE EDWARD JOHNSON,

Plaintiff, No. CIV S-04-0776 LKK EFB P

vs.

D. L. RUNNELS, et al., ORDER AND FINDINGS AND

RECOMMENDATIONS

Defendants.

 /

Plaintiff is a prisoner without counsel suing for alleged civil rights violations. See 42

U.S.C. § 1983. This action proceeds on plaintiff’s June 21, 2006, third amended complaint.

Pending before the court is a motion to dismiss filed by defendants Chapman, Gower, St. Andre

and Arnold. They contend that plaintiff fails to state any claim against them. See Fed. R. Civ. P.

12(b)(6). The brief in support of the motion also seeks an extension of time to file and serve an

answer on behalf of defendants Briddle, Wilbur, Pribble, Von Rader, Kelsey, Weaver, Hicks,

Houghland, Bigford, Bates, Little and Goyle. That request is granted.

For the reasons explained below, the court finds that defendants’ motion must be granted

in part and denied in part.

////

////

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1

 Rule 12(b)(6) tests the sufficiency of allegations in the complaint to state a cognizable

claim, Albright v. Oliver, 510 U.S. 266 (1994), whereas Rule 56 tests the sufficiency of evidence

2

I. Facts

In the third amended complaint, plaintiff claims that defendants violated his rights under

the Eighth Amendment based on a number of allegations. The court screened that complaint on

September 8, 2006, pursuant to 28 U.S.C. § 1915A. The screening order determined that, for the

limited purposes of section 1915A, the complaint stated claims as to defendants Chapman,

Gower, St. Andre and Arnold that they failed to protect him from other guards’ use of force

against plaintiff. Also on that date, the court issued findings and recommendations explaining in

some detail which allegations failed to state a claim. With respect to the claims that survived the

initial review, the court gave little detail. Although not specified in detail in the screening order,

the court concludes that for purposes of section 1915A, the following allegations state a claim: 

(1) defendant Chapman “was a bystander in tacit authorization and refused to intervene” when

three other defendants used excessive force against plaintiff during an interrogation; (2) Gower

failed to protect plaintiff while two other defendants punched plaintiff, grabbed him out of a

detention cage, slammed him against the wall and applied pressure against him; (3) defendant St.

Andre was present and himself authorized and observed as another defendant “sprayed excessive

amounts of O.C. spray” into plaintiff’s cell, and other guards entered to use excessive force

against plaintiff; (4) defendant Arnold was deliberately indifferent to the conditions of plaintiff’s

confinement when throughout his shift one night he repeatedly beat on a detention cage where

plaintiff was held.

Chapman, Gower, St. Andre and Arnold now move to dismiss those claims for failure to

state a claim.

II. Standards on Motion to Dismiss

A motion to dismiss made under Fed. R. Civ. P. 12(b)(6) is a defendant’s means of

testing plaintiff’s compliance with the liberal pleading standard under Rule 8(a)(2).1

 Thus, in

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to support those allegations. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

2

 When a party relies on matters extrinsic to the complaint, Rule 12(b)(6) expressly

mandates that the court either disregard the extrinsic material or invoke the procedural

3

order to survive a motion to dismiss, a complaint must contain “enough facts to state a claim to

relief that is plausible on its face.” Bell Atlantic Corporation v. Twombly, U.S. , 127

S.Ct. 1955, 1964, 1970 (2007) (stating that the 12(b)(6) standard that dismissal is warranted if

plaintiff can prove no set of facts in support of its claims which would entitle plaintiff to relief

“has been questioned, criticized, and explained away long enough,” and that having “earned its

retirement,” it “is best forgotten as an incomplete, negative gloss on an accepted pleading

standard”). Thus, the grounds must amount to “more than labels and conclusions” or a

“formulaic recitation of the elements of a cause of action. Bell Atlantic, 127 S.Ct. at 1965. 

Instead, the “[f]actual allegations must be enough to raise a right to relief above the speculative

level on the assumption that all the allegations in the compliant are true (even if doubtful in

fact).”

 The crux of the standard is this. Dismissal may be based either on the lack of cognizable

legal theories or the lack of pleading sufficient facts to support cognizable legal theories. 

Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). When a motion to dismiss

is for failure to state a claim upon which relief can be granted, the court assumes the complaint’s

factual allegations as true and determines whether those assumed facts give rise to a cause of

action. Church of Scientology of California v. Flynn, 744 F.2d 694 (9th Cir. 1984). In doing so,

the court construes the pleading in the light most favorable to plaintiff and resolves all doubts in

plaintiff’s favor. Parks School of Business, Inc. v. Symington1995). General allegations are

presumed to include specific facts necessary to support the claim. NOW, 510 U.S. at 256

(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)).

Although courts will not normally look beyond the four corners of the complaint in

resolving a Rule 12(b)(6) motion,2 Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 248 (9th

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protections afforded under Rule 56 so that the non-moving party is provided the opportunity to

present evidence sufficient to overcome the motion. These procedures include converting the

matter to a motion for summary judgment under Rule 56 and providing notice to the non-moving

party that the facts challenged in the complaint must be supported with evidence adequate to

demonstrate a genuine issue of material fact. Rosales v. United States, 824 F.2d 799, 802 (9th

Cir 1987) (If matters external to the pleadings are presented to the court and not excluded, a Rule

12(b)(6) motion for failure to state a claim must be treated as a motion for summary judgment.).

4

Cir.1997), Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir.2001), a “court may consider

material that the plaintiff properly submitted as part of the complaint or, even if not physically

attached to the complaint, material that is not contended to be inauthentic and that is necessarily

relied upon by the plaintiff's complaint.” Id. Moreover, the court may disregard allegations of

the complaint that are contradicted by attached exhibits. Durning v. First Boston Corp., 815

F.2d 1265, 1267 (9th Cir. 1987); Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295 (9th

Cir.1998). Furthermore, the court is not required to accept as true allegations contradicted by

judicially noticed facts. Mullis v. United States Bankruptcy Ct., 828 F.2d 1385, 1388 (9th Cir.

1987). The court may consider 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) (abrogated on other grounds by Astoria Federal Savings and Loan Ass’n v. Solimino, 501

U.S. 104 (1991)).

Additionally, “[t]he court is not required to accept legal conclusions cast in the form of

factual allegations if those conclusions cannot reasonably be drawn from the facts alleged.” 

Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994). Neither need the court

accept unreasonable inferences, or unwarranted deductions of fact. Western Mining Council v.

Watt, 643 F.2d 618, 624 (9th Cir. 1981).

 Pro se pleadings are held to a less stringent standard than those drafted by lawyers. 

Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Unless it is clear that no amendment can cure

its defects, a pro se litigant is entitled to notice and an opportunity to amend the complaint before

dismissal. Lopez v. Smith, 203 F.3d 1122, 1127-28 (9th Cir. 2000) (en banc); Noll v. Carlson,

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5

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

III. Analysis

Plaintiff claims that defendants Chapman, Gower and St. Andre violated his rights by

failing to protect him from allegedly excessive force of other guards. He claims that Arnold

violated his rights by depriving him of a basic human need. Each claim against each defendant

is addressed below.

A. Defendant Chapman

Plaintiff alleges that Chapman stood by and failed to intervene when other defendants

used excessive force. He asserts that Chapman was a “bystander” who “tacitly authorized” the

abuse. Chapman argues that the factual allegations of the complaint, even if true, are insufficient

to state a claim. He argues that “plaintiff must show that he sustained an objectively serious

deprivation or injury, and only ‘extreme deprivations’ rise to the level of an Eighth Amendment

violation.” Defs.’ Mot. to Dism., at 5:26-28 (citing Hudson v. McMillian, 503 U.S. 1, 9 (1992)). 

Chapman contends that plaintiff’s claims, premised on these allegations, rest on a theory of

supervisor liability which cannot be sustained because there is no allegation that defendant

himself participated in causing any such deprivation or approved any constitutional violation

after the fact. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (stating the possible bases

of liability for a supervisor under § 1983); see also, Hansen v. Black, 885 F.2d 642, 646 (9th Cir.

1989); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 

The argument is unavailing. The nature of plaintiff’s claim is clear: defendant Chapman

failed to protect him from other guards’ use of excessive force, including punching him,

slamming him against a wall, and spraying him with excessive amounts of O.C. spray. This

claim, in the context of these factual allegations, is plainly cognizable. See Farmer v. Brennan,

511 U.S. 825, 834, 842-43 (1994) (guards have an Eighth Amendment obligation to protect

prisoner from other guards). The argument that plaintiff’s must allege he was subjected to any

“extreme deprivation” is premised on a careless reading of Hudson. The entire sentence from

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6

which defendant extracts this language reads as follows: “For instance, extreme deprivations are

required to make out a conditions-of-confinement claim.” Hudson, 503 U.S. at 8-9. This is not a

conditions of confinement claim.

The court in Hudson took care to explain that:

 What is necessary to show sufficient harm for purposes of the

Cruel and Unusual Punishments Clause depends upon the claim at

issue, for two reasons. First, “[t]he general requirement that an

Eighth Amendment claimant allege and prove the unnecessary and

wanton infliction of pain should ... be applied with due regard for

differences in the kind of conduct against which an Eighth

Amendment objection is lodged.” Whitley [v. Albers], 475 U.S.

[312], at 1084 [(1986)]. Second, the Eighth Amendment's

prohibition of cruel and unusual punishments “ ‘draw[s] its

meaning from the evolving standards of decency that mark the

progress of a maturing society,’ ” and so admits of few absolute

limitations. Rhodes v. Chapman, 452 U.S. 337, 346, (1981)

(quoting Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality

opinion)).

Hudson, 503 U.S. at 8 (parallel citations omitted). Surprisingly, defendant’s discussion of

Hudson misses the court’s most conspicuous point. The court differentiated the “excessive

force” claim from the “conditions of confinement” claim. It took pains to explain why different

standards apply. The question presented in Hudson, was “whether the use of excessive physical

force against a prisoner may constitute cruel and unusual punishment when the inmate does not

suffer serious injury.” Id., at 4. The answer was unequivocally, yes. In reaching this conclusion

the court examined the various contexts in which the cruel and unusual punishments clause

applies and the varying standards. Id., at 7-12.

The “conditions of confinement” standard that defendant urges here was expressly not

the standard applied in Hudson. Rather, the Supreme Court reaffirmed that “[i]n the excessive

force context, society's expectations are different. When prison officials maliciously and

sadistically use force to cause harm, contemporary standards of decency always are violated.” 

Hudson, 503 U.S. at 8 (citing Whitley, 475 U.S. at 327). Not to put too fine a point on the

matter, “[t]his is true whether or not significant injury is evident. Otherwise, the Eighth

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Amendment would permit any physical punishment, no matter how diabolic or inhuman,

inflicting less than some arbitrary quantity of injury. Such a result would have been as

unacceptable to the drafters of the Eighth Amendment as it is today.” Id.

Defendant has misread Hudson and his motion to dismiss this claim must be denied. 

Chapman also moves to dismiss any claim predicated on the allegation that he allowed

other guards to move plaintiff from one part of the prison to another in a “rickety, safety

unequipped paraplegic transvan.” See Third Am. Compl., at 10-11. As defendant notes, this

claim was dismissed as to co-defendant Sgt. Brewer and it should be dismissed for the same

reasons as to Chapman. The point is well-taken. The same analysis in the screening order was

intended to apply to Chapman and the court now clarifies that it did not intend for defendant

Chapman to respond to this claim.

This claim is subject to the conditions of confinement standard. Extreme deprivations are

required to make out a conditions-of-confinement claim “[b]ecause routine discomfort is ‘part of

the penalty that criminal offenders pay for their offenses against society . . . .’” Hudson, 503 U.S.

at 9 (quoting Rhodes v. Chapman, 452 U.S. at 347), see also Wilson v. Seiter, 501 U.S. 294, 302-

03 (1991). The allegation that Chapman did not intervene to stop the transfer as described by

plaintiff does not satisfy these standards. Thus, insofar as defendant Chapman understands the

claim to have survived the court’s review pursuant to 28 U.S.C. § 1915A, the claim must be

dismissed.

B. Defendant Gower

Defendant Gower moves to dismiss plaintiff’s claims that he failed to intervene when

plaintiff was interrogated while sitting straddled on a chair with his hands behind his back and

told to sign paperwork consenting to a strip search. Again, the screening order could have been

more specific and the court did not intend for Gower to respond to these claims. While the

Eighth Amendment imposes on prison guards the obligation to protect prisoners from excessive

force at the hands of other guards, these allegations do not satisfy that standard. See, Farmer,

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511 U.S. at 834, 842-43. For a prisoner to state a claim that a search violated the Fourth

Amendment, he must allege an intrusion that was unreasonable in relation to its purpose. See

Jordan v. Gardner, 986 F.2d 1521, 1534-1540 (9th Cir. 1993) (Reinhardt, J., concurring)

(random, suspicionless, clothed body searches which included groping by male guards of female

prisoners unreasonable in time, place and manner); Michenfelder v. Sumner, 860 F.2d 328, 333-

34 (9th Cir.1988) (female guard’s isolated observation of a male prisoner during a strip search

not unreasonable). Since reasonableness is the foundation of Fourth Amendment jurisprudence,

a search pursuant to voluntary consent inherently is reasonable as long as the search is within the

scope of the consent given. Florida v. Jimeno, 500 U.S. 248, 250, 251-52 (1991). It follows that

if the applicable reasonableness standard under the Fourth Amendment is satisfied, then consent

is not necessary. Here, the court has found that the search in question was reasonable. 

Accordingly, forcing plaintiff to sign a document consenting to the search, without more, works

no unconstitutional invasion into plaintiff’s privacy. Thus, plaintiff’s allegation does not state a

claim under the Fourth Amendment. Again, insofar as defendant believed he was obligated to

defend against these claims, his motion must be granted with respect to them.

Defendant Gower also moves to dismiss the claim that he watched as other defendants

punched plaintiff, grabbed him out of a detention cage and slammed him against a wall. Gower

offers no reason for dismissing this claim. Moreover, the analysis of this claim is subject to the

same analysis discussed above regarding Chapman. For those same reasons, the motion to

dismiss this claim must be denied. 

C. St. Andre

St. Andre moves to dismiss the claim that he directly authorized a different guard to

spray excessive amounts of pepper spray into plaintiff’s cell, observed the guard as he did so,

and that he thereafter did not intervene to protect plaintiff from the other guards use of excessive

force. St. Andre asserts that plaintiff cannot prevail on a theory of supervisor liability for the

same reasons argued on behalf of Chapman. The motion to dismiss must be denied for the

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reasons stated above as to Chapman. Moreover, the claim does not on its face appear to depend

on St. Andre’s obligations as a superior officer. Rather, it falls directly within the ambit of a

guard’s Eighth Amendment obligations as explained in Farmer.

D. Arnold

Defendant Arnold moves to dismiss plaintiff’s claims that Arnold threatened to beat

plaintiff, kill him and bury him in the desert, and that he interrupted plaintiff’s sleep one night by

repeatedly banging on the detention cage where plaintiff was held, startling plaintiff and

preventing him from sleeping. While these statements, if in fact made, may provide evidence as

to other claims, they are not actionable in and of themselves. The court is well aware that threats

and verbal harassment alone do not violate the Eighth Amendment. See Oltarzewski v.

Ruggiero, 830 F.2d 136, 139 (9th Cir.1987); Freeman v. Arpaio, 125 F.3d 732, 738 (9th Cir.

1997). The court did not intend in the screening order that defendant Arnold respond to a claim

that obviously was not cognizable. Thus, the screening order is hereby clarified and insofar as

defendant believes the claim survived this court’s review pursuant to 28 U.S.C. § 1915A, the

claim must be dismissed.

Plaintiff’s other claim against Arnold, however, does state a claim. Plaintiff alleges that

during his six-hour night shift, Arnold repeatedly went to the detention cage where plaintiff was

held, beat on the cage with a night stick and yelled for plaintiff to wake up because, “You kept

bothering me, so I’m going to keep bothering you,” “We play by our own rules,” and “You’re in

our world now.” Third Amended Compl., at 32. To state a claim that conditions of confinement

constitute cruel and unusual punishment, plaintiff must allege facts showing prison personnel or

officials were deliberately indifferent to providing “the minimal civilized measure of life’s

necessities.” Rhodes v. Chapman, 452 U.S. at 347; Wilson v. Seiter, 501 U.S. at 302-03. 

Defendant offers no argument that, as a matter of law, sleep is not one of life’s minimal

necessities or that the deprivation thereof in the manner described by plaintiff is not sufficiently

extreme in light of the apparent lack of any penological justification for this treatment. The

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motion must be denied with respect to this claim.

IV. Conclusion

For all of the above reasons, the court finds that defendants Chapman, Gower, St. Andre

and Arnold have not demonstrated that plaintiff failed to state a claim upon which relief can be

granted.

Accordingly, it hereby is ORDERED that the request for an extension of time on behalf

of defendants Briddle, Wilbur, Pribble, Von Rader, Kelsey, Weaver, Hicks, Houghland, Bigford,

Bates, Little and Goyle is granted. These defendants have 15 days from the date the order on the

motion to dismiss is served to file and serve an answer to the complaint.

Further, it is RECOMMENDED that:

1. Defendants’ April 18, 2007, motion to dismiss be granted in part and that the

following claims be dismissed:

a. That defendant Chapman violated plaintiff’s Eighth Amendment rights by

permitting his transport from one part of the prison to another in an unsafe transvan;

b. That defendant Gower violated the Eighth Amendment by failing to intervene

when plaintiff was interrogated while sitting straddled on a chair with his hands behind his back; 

c. That defendant Gower violated the Fourth Amendment by forcing plaintiff to

sign a form consenting to a strip search;

d. That defendant Arnold violated the Eighth Amendment by threatening to kill

plaintiff and bury him in the desert;

2. Defendants’ April 18, 2007, motion to dismiss be denied in part and that the following

claims not be dismissed:

a. That Chapman was deliberately indifferent to plaintiff’s safety by failing to

intervene when other guards used excessive force against plaintiff;

b. That Gower was deliberately indifferent to plaintiff’s safety by failing to

intervene when two other defendants punched plaintiff, grabbed him out of a detention cage,

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slammed him against a wall and applied pressure to him;

c. That defendant St. Andre authorized and observed as another defendant

sprayed excessive amounts of pepper spray into plaintiff’s cell and as other guards entered and

used excessive force against plaintiff;

d. That defendant Arnold was deliberately indifferent to the conditions’ of

plaintiff’s confinement when throughout his shift one night he repeatedly beat on the detention

cage where plaintiff was held and was trying to sleep; and,

3. Defendants be granted 15 days from the date of service of the order finally resolving

this motion to file and serve an answer to the complaint.

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 fourteen 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

“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

within the specified time may waive the right to appeal the District Court’s order. Turner v.

Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

Dated: February 22, 2008.

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