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United States District Court

Eastern District of California 

Brian Lee Christman,

Plaintiff, No. Civ. S 04-0884 FCD PAN P

vs. Findings and Recommendations

California Department

of Corrections, et al.,

Defendants.

-oOoPlaintiff is a prisoner without counsel prosecuting this

civil rights action pursuant to 42 U.S.C. § 1983. Defendants

Kernan, Knowles, Micheletti and Robinson move to dismiss pursuant

to Fed.R.Civ.P. 12(b)(6) upon the ground plaintiff fails to state

a claim. Plaintiff filed no opposition.

On a motion to dismiss pursuant to Rule 12(b)(6), the court

must accept plaintiff’s allegations as true, read the complaint

most favorably to plaintiff, give plaintiff the benefit of every 

reasonable inference that appears from the pleading and argument 

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of the case and dismiss the complaint only if it is clear that no

relief could be granted under any set of facts that could be

proved consistent with the allegations. Wheeldin v. Wheeler, 373

U.S. 647, 658 (1963); Retail Clerks International Association,

Local 1625, AFL-CIO v. Schermerhorn, 373 U.S. 746, 754 n.6

(1963); Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). The

court may consider documents attached to the complaint in

evaluating a motion to dismiss. Parks School of Business, Inc.

v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995).

To state a claim under 42 U.S.C. § 1983, plaintiff must

allege an identified defendant deprived plaintiff of a right

secured to him by the Constitution or laws of the United States

while acting under color of state law. West v. Atkins, 487 U.S.

42, 48-49 (1988). A person deprives another of a constitutional

right, within the meaning of section 1983, if he does an

affirmative act, participates in another's affirmative acts, or

omits to perform an act which he is legally required to do that

causes the deprivation plaintiff complains of. Johnson v. Duffy,

588 F.2d 740, 743 (9th Cir. 1978).

Plaintiff alleges “CDC employees” placed him in a cell with

another prisoner with a known history of attacking other inmates

who attacked plaintiff causing serious injury. The complaint

alleges plaintiff does not know the names of every individual

involved but seeks leave to amend when he identifies them. 

Allegations that defendants intentionally placed plaintiff at

risk of harm state a claim defendants wantonly inflicted

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unnecessary pain. See Whitley v. Albers, 475 U.S. 320, 320-21

(1986)(question of whether prison officials have used excessive

force depends on whether force was applied in good faith or 

maliciously and sadistically to cause harm). While the law of

this circuit permits amendment to identify “Doe” defendants, see

Gillespie v. Civiletti, 629 F.2d 637, 642-43 (9th Cir. 1980),

more than a year has passed without plaintiff seeking leave to

amend and so claims against the “Doe” defendants should be

dismissed. 

Defendants Micheletti, Knowles, Kernan and Robinson assert

plaintiff does not allege their involvement in any violations of

his rights. Reading plaintiff’s complaint and attachments

together, plaintiff alleges that his cell-mate had a reputation

for attacking prisoners; that immediately after an argument with

plaintiff, defendant Micheletti stated he hoped plaintiff’s cellmate would “take care of him” and “antagonized” plaintiff’s cellmate; that “moments later” plaintiff’s cell-mate attacked

plaintiff; and that defendant Micheletti purposefully delayed in

responding to a report that plaintiff was being attacked. These

allegations state a claim against Micheletti under Whitley v.

Albers, 475 U.S. 320, 320-21 (1986).

Plaintiff fails to allege how defendants Knowles, Kernan, or

Robinson were involved and plaintiff’s detailed allegations

against Micheletti imply he acted alone to place plaintiff in

peril and that events proceeded quickly and without opportunity

for others to intervene. Accordingly, plaintiff’s claims against

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them should be dismissed.

Plaintiff alleges his medical records contain false

information but he fails to allege how this has affected his

right to adequate health care. See Estelle v. Gamble, 429 U.S.

97, 106 (1976). This claim should be dismissed.

Defendant Micheletti asserts he is entitled to qualified

immunity. Defendant is immune from suit for damages insofar as

his conduct did not violate plaintiff’s clearly established

rights. Harlow v. Fitzgerald, 457 U.S. 800 (1982). In deciding

a claim of qualified immunity, the court must first determine

whether, in the light most favorable to plaintiff, the facts

alleged show defendants’ conduct violated a constitutional right.

Saucier v. Katz, 533 U.S. 194 (2001). 

Second, the court must determine whether the right defendant

is alleged to have violated was clearly established. The

dispositive inquiry is whether it would be clear to a reasonable

prison official that “his conduct was unlawful in the situation

he confronted,” by reference to decisional law agreeing that

“certain conduct is a constitutional violation under facts not

distinguishable in a fair way from the facts presented in the

case at hand.” Saucier, 533 U.S. at 201. Decisional law need

not proscribe the exact conduct in question; it must only make

the conduct’s unlawfulness apparent. Hope v. Pelzer, 536 U.S.

730 (2002).

The court has found that the facts alleged show Micheletti’s

conduct violated the Eighth Amendment.

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The law was clear in June 2003 that a prison guard who acted

sadistically and maliciously for the very purpose of causing harm

violated the prisoner’s constitutional rights. See Whitley. It

would have been clear to a reasonable prison guard that the

conduct alleged was unconstitutional in the situation he faced.

Defendant Micheletti is not immune from plaintiff’s suit.

For these reasons, I recommend the following: 

1. Defendants’ December 13, 2004, motion to dismiss

plaintiff’s claim that as yet unidentified defendants violated

his rights by housing him with a prisoner with a reputation for

violence should be granted; 

2. Defendants Kernan, Knowles and Robinson’s motion to

dismiss should be granted;

3. Defendant Micheletti’s motion to dismiss upon the ground

plaintiff fails to state a claim should be denied; 

4. Defendant Micheletti’s motion to dismiss upon the ground

he is entitled to immunity should be denied and he should be

directed to answer the complaint within 30 days;

Pursuant to the provisions of 28 U.S.C. § 636(b)(l), these

findings and recommendations are submitted to the United States

District Judge assigned to this case. Written objections may be

filed within 20 days of service of these findings and

recommendations. The document should be captioned “Objections to

Magistrate Judge’s Findings and Recommendations.” The district

judge may accept, reject, or modify these findings and

recommendations in whole or in part.

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Dated: June 7, 2005. 

 /s/ Peter A. Nowinski 

 PETER A. NOWINSKI

 Magistrate Judge

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