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FILED 4 ISTRICT COURT OF GUAM MAY 10 2005 6 MARY DISTRICT COURT OF GUAM CLER L.M. MORAN 7 K OE-CQURT TERRITORY OF GUAM 4S |
10 4 MICHAEL JR. G. LAGUANA, Civil Case No. 03-00040 Plaintiff, 12 VS. 13 ORDER FRANK ISHIZAKI, Director; FRANCISCO 14 | B. CRISOSTOMO, Warden; ALAN SAN NICOLAS, Corporal; RAYMOND 15 HOCHO; Correctional Officer; INCENT BAMBA; Correction Officer; 16 || ED PEREZ, Correctional Officer, at the Department of Corrections, in their individual 17 || and official capacities, 18 Defendants. 19 20 This matter comes before the Court on Defendants’ Motion to Dismiss. The motion was 21 |) referred to the United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and General 22 || Order No. 04-00016. The Magistrate Judge filed his Findings and Recommendations on September 23 I 21, 2004 (“Report”), Docket No. 34. Thereafter both parties filed objections. 24 Under 28 U.S.C. § 636(b)(1)(C), the Court may accept, reject or modify in whole or in part, 25 || the Magistrate Judge’s recommendation after a de nove determination as to any portion of the 26 || recommendation to which a timely objection has been filed. Accordingly this Court has thoroughly 27 || considered, de nove, the entire case and all relevant law and makes the following findings: 28
1 | STANDARD OF REVIEW 2 | The Ninth Circuit has reviewed the standard for a motion to dismiss for failure to state a 3 || claim upon which relief can be granted: 4 Me complaint should not be dismissed under Fed.R.Civ. Pro. 2(b)(6) “unless it appears beyond a doubt that the plaintiff can 5 prove no set of facts in support of his claim which would entitle him to relief.” A complaint may be dismissed as a matter of law for two 6 | reasons: (1) lack ofa cognizable legal theory or (2) insufficient facts 7 under a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc.,749 F. 2d 530, 533-34 (9" Cir. 1984). “Dismissal “is only 9 appropriate if the complaint, so viewed, presents no set of facts justifying recovery.” Although 10 “great specificity is ordinarily not required,” the plaintiff must nevertheless “set forth ‘factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory.”” Shabazz v. Cole, 69 F, Supp. 2d 177, 185 (D.Mass. 3 1999). (citations omitted). “Conclusory allegations of law and unwarranted inferences are 1 4 insufficient to defeat a motion to dismiss.” Ove v. Gwinn, 264 F 3rd 817, 821 (9" Cir. 2001). Is With respect to a pro se litigant’s rights to amend his complaint, the Ninth Circuit has held that “unless it is absolutely clear that no amendment can cure the defect, a pro se litigant is entitled 16 5 to notice of the complaint’s deficiencies and an opportunity to amend prior to dismissal of the 1 | action.” Lucas v. Dep't of Corrections, 66 F.2d 1050, 1055 (9" Cir. 1995) (per curiam); see also 1 | Lopez v, Smith, 203 F.3d 1122, 1126, 1131 (9% Cir. 200)(en banc). 19 | 4 | MATERIALS TO BE CONSIDERED 0 | As a preliminary matter, defendants have submitted two declarations with attachments 21 requesting the Court to take judicial notice of them.’ Plaintiff, Michael Jr. G, Laguana, (“plaintiff”) 22 | objects to the Court’s consideration of these documents. He states that the documents were 23 | | untimely filed and that he was he never served with them.’ 24 25 ‘Declaration of Marie Roberto (“Roberto Deci.”) (Docket No. 41, filed October 8, 2004) Records Custodian 26 || for the Department of Corrections with attachment of Disciplinary Hearing Board (DHB) Report of Michael Laguana and the Declaration of Robert Camacho (“Camacho Decl.”) (Docket No. 47, filed December 7, 2004), 27 * The Court notes that the Declaration of Marie Roberto was filed with this Court on October 8, 2004 nine 28 || months after Defendant's Motion to Dismiss was filed on January 21, 2004. The Declaration of Robert Camacho was filed with this Court on December 7, 2004, 11 months after the original motion to dismiss. Both declarations were filed after the Report and Recommendations of Magistrate Judge Manibusan presumably in response to the Magistrate
1] When resolving a motion to dismiss for failure to state a claim, a District Court may not 2 || consider materials outside the complaint and the pleadings. See Gumataotao vy. Director, 236 F. 3 3d 1077, 1086 (9" Cir. 2001). However, the Court may review “materials of which the court may 4 | take judicial notice.” Barron v. Reich, 13 F.3d 1370, 1377 (9" Cir. 1994). This includes “records 5 | and reports of administrative bodies.” Jd. Further, Local Rule 7.1(c)(2) and (3) establishes 6 || applicable rules for filing of motions with this Court. This section necessitates that any evidence 7 || or affidavits shall be served and filed with the motion. Failure to file supporting documents as 8 || required under this rule will not be considered. Local Rule 7.1(f). 9 This Court is concerned over the length of time that has lapsed between the filing of the 10 || defendants’ motion to dismiss and the declarations in support of the motion. Further, the 1) || defendants have failed to provide an explanation for such delay.’ Therefore, the Court GRANTS 12 | the Plaintiff's motion to strike the untimely declarations of both Marie Roberto and Robert 13 || Camacho and will not consider them at this stage.* 14 BACKGROUND 15 Plaintiff is a prisoner currently incarcerated at the Department of Corrections (“DOC”) in 16 || Mangilao, Guam. While housed at the Minimum-In Facility of DOC, the plaintiff claims he 17 || received information that he was to be transferred to the Halfway House. Because he believed that 18 | he would be subject to “animus treatment” from defendant, Alan San Nicolas (“San Nicolas”), and 19 i other prison officials plaintiff refused to be transferred to the Halfway House.’ Defendant,
20 21 denying the Defendant’s motion to dismiss as to Plaintiffs Cause of Action against Defendant Ishizaki in his individual 22 “personal capacity.” 23 | 3 Additionally questions surrounding whether or not the DHB appeal was ever received by or served upon 24 the Plaintiff seem to render consideration of the document somewhat moot. The Court further declines to comment upon whether or not service of said document upon the Plaintiff is actually required and leaves it to the parties to raise 45 and address at a later date. if 26 | 4 Bither party is free to resubmit these documents at a later date for the court's consideration at subsequent | motion hearings. 27 | | *San Nicolas serves as a corporal at DOC, a unit supervisor for the halfway house at DOC, chairman for the 28 Disciplinary Hearing Board at DOC, and is the officer in charge of the 7 A.M. to 3 P.M. shift of DOC personnel for the halfway house at DOC.
| || Francisco B. Crisostomo (“Crisostomo”), assured plaintiff that he would remain at the Minimum-In 2 || facility.° However, despite these assurances, the plaintiff was thereafter transferred to the Halfway 3 || House. (Compl. at 9] 13-16). 4 Some nine months after he was transferred to the Halfway House, the plaintiff spoke with 5 |] defendants, Vincent Bamba (“Bamba”) and Ed Perez (“Perez”), to discuss plaintiff's lack of sleep 6 || because of his cellmate's loud snoring.’ Plaintiff was told by defendants that his concerns would 7 || be addressed. However, nothing was done. (Compl. at J 17-22). 8 Two days after plaintiff spoke with defendant Perez, plaintiff awoke “in a groggy mood 9 } from lack of sleep” and punched a door open causing damage to the door. See, Plaintiff's Facts at 10 | 4 (Attachment to Compl,). Because of plaintiff s actions, corrections officers including defendant, 11 | Raymond Quichocho (“Quichoche”), prepared an incident report.’ Defendant Bamba counseled {2 | Plaintiff as to his behavior. Later that same day, plaintiff was also counseled for failing to shave. 13 || By order of defendant San Nicolas, the plaintiff was handcuffed and placed in Pre-hearing 14 | detention. Plaintiff was given a choice has to how he wanted to be handcuffed and was given a 15 || notice of the charges. Jd. at 6. 16 Thereafter, defendant San Nicholas investigated plaintiff's disciplinary action. Two days 17 }j later the Disciplinary Hearing Board (“Board”), of which San Nicolas was the chair conducted a 18 || hearing. Plaintiff requested that defendant San Nicolas remove himself from the board since he 19 | was the person who initiated the charging process and investigated the case. Defendant San 20 || Nicolas complied with plaintiff's request and removed himself from the hearing. 21 At some point during the hearing, defendant San Nicolas returned and slipped a note to the 22 || acting presiding authority. Plaintiff does not allege any facts that would indicate the contents of 23 || the note. During the course of the hearing, plaintiff asked that his case be dismissed for conflict 24 25 *Crisostomo serves as the warden of DOC. 26 “Bamba serves as a correctional officer at DOC and is a subordinate of San Nicolas. Perez serves as a correctional officer at DOC and is a subordinate of San Nicolas. 38 *Quichocho serves as a correctional officer at DOC and is a subordinate of San Nicolas and an agent of Ishizaki and Crisostomo.
1 || of interest and procedural due process violations. The Board rejected his claim. Plaintiff was 2 || afforded the opportunity to cross-examine the witnesses and to call his own. The Board ultimately 3 || found plaintiff guilty of damaging government property and conduct that disrupts. As a 4 || consequence of these violations, Plaintiff was ordered to serve thirty (30) days in Disciplinary 5 || Segregation. Jd. at 7. Plaintiff alleges that he filed an appeal with Frank Ishizaki □□□□□□□□□□□□ 6 || within the prescribed time frame, but Ishizaki never responded.’ 7 On November 24, 2003 the plaintiff filed a complaint against defendants Ishizaki, § || Crisostomo, San Nicolas, Quichocho, Bamba, and Perez (collectively “defendants”) in their 9 || respective individual and official capacities.'° 10 On January 21, 2004, defendants filed the present motion to dismiss. Plaintiff filed an 11 || opposition on March 9, 2004. The Magistrate Judge issued his report and recommendation to this 12 } Court on September 21, 2004, thereafter, each of the parties filed objections. 13 14 9 Ishizaki at the time of the Defendant's filing served as Director of DOC 15 ‘Pursuant to 42 U.S.C. § 1983 the plaintiff alleged the following causes of action: 16 (1) that defendant Crisostomo denied plaintiff's constitutional rights to be free from cruel 17 and unusual punishment and to enjoy equal protection of the law, as well as the right to protection 18 from uneven or discriminatory treatment; (2) that defendants Perez and Bamba denied plaintiff's constitutional rights to be free from 19 cruel and unusua! punishment and to enjoy equal protection of the law, as well as the right to 0 protection from uneven or discriminatory treatment; 1 (3) that defendant San Nicolas denied plaintiff's constitutional rights to be free from cruel and unusual punishment and to enjoy equal protection of the Jaw, as well as the right to protection 92 from uneven or discriminatory treatment; 93 (4) that defendant Quichoche denied plaintiff's constitutional rights to due process of law and to equal protection of the law, as well as the right to protection from uneven or discriminatory 4 treatment, and 25 (5) that defendant Ishizaki denied plaintiffs constitutional rights to due process of law and to equal protection of the law, as well as the right to protection from uneven or discriminatory 26 treatment. 27 Plaintiff prays for injunctive and declaratory relief, and an award of compensatory and unitive damages for “mental anguish” caused by the defendants’ action 28 P
1 ANALYSIS OF CLAIMS 2 . Immunity Analysis All Claims Made Against All Defendants in Their “Official Capacity.” The Magistrate Judge, in his report, found that Guam officials acting in their “official ; capacities” were not “persons” under § 1983 subject to claims for monetary damages. Therefore, ‘ he recommended that this Court dismiss these claims. This Court agrees. Government officials acting in their official capacities are not “persons” with respect to § 1983. Niraingas v. Sanchez, 495 U.S. 182, 193, 110 S. Ct. 1737 (1990). Defendants Crisostomo, Perez, Bamba, San Nicolas, Quichocho and Ishizaki when sued for damages in their “official capacity” with the Department ° of Corrections are not “persons” under 42 U.S.C, § 1983 thus rendering all defendants immune 0 from suit in this regard. Accordingly, the defendants’ motion to dismiss all claims brought pursuant to §1983 for monetary damages from each defendant acting in his “official capacity” is hereby GRANTED AND DISMISSED WITH PREJUDICE. The plaintiff also sought injunctive and declaratory relief against the defendants. The 4 Magistrate Judge found that defendants Crisostomo, Perez, Bamba, San Nicolas, Quichocho and Ishizaki were “persons” within the meaning of 42 U.S.C. § 1983 if sued for prospective injunctive ‘6 and declaratory relief in their “official capacity” with the Department of Corrections. Again, the Court agrees with the Magistrate Judge’s findings. An exception to Eleventh Amendment 8 immunity lies where a suit for prospective relief (injunction or declaratory judgment) is brought against an official of the government in an “official capacity.” Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441 (1908); see, e.g. Carmen v. San Francisco Unified School District, 982 F. Supp. 1396 (9" Cir, 1997). Accordingly, the defendants’ motion to dismiss with respect to plaintiff's claims seeking declaratory judgment for Defendants acting in their “official capacity” is DENIED. 2 However, the defendants’ motion to dismiss all claims for retroactive injunctive relief as to each defendant is GRANTED and DISMISSED WITH PREJUDICE. Actual restoration of » good-time credits to prisoners and other retroactive relief improperly taken under §1983 is “foreclosed” and the sole remedy in that regard is by writ of habeas corpus. Wolffy. McDonnell, 418 U.S. 539, 554 (1974).
] Qualified immunity Analysis 5 All Claims Made Against All Defendants mn Their “Personal Capacity” The Magistrate Judge recommended deferment of the ruling on whether qualified immunity extends to any of the defendants. Jd. This Court hereby adopts in part the recommendation of the ; Magistrate Judge and in particular, his rationale discussing the matter, however, rather than defer its ruling this Court finds the matter can be decided. ° The doctrine of qualified immunity is an affirmative defense which shields public officials “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person should have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 ° S.Ct. 2727, 2738 (1982). In deciding whether a public officer is entitled to qualified immunity this Court must employ a three part test: (1) identify the right violated; (2) determine whether the right was clearly established; and (3) determine whether a reasonable official would have believed his or her conduct to be lawful. (Robinson v. Prunty, 249 F. 3d 862, 866 (9" Cir 2001) and Hamilton v. Endell, 981 F.2d 1062, 1065 (9* Cir 1992)). Admittedly, the first two prongs require a purely 4 legal analysis to be employed by the Court. However the third prong necessarily requires a factual determination. Factual determinations are not properly before the Court on a motion for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6).’ Accordingly, the defendants’ motion to dismiss all claims brought pursuant to §1983 for monetary, injunctive and declaratory relief from each defendant acting in his “personal capacity” is DENIED. ight endment Analysis 20 Claims Made Against Bouadant Crisostomo. Perez. Bamba, San Nicolas 21 The Magistrate Judge noted that the complaint was insufficient to state a cause of action 22 || and that dismissal without prejudice was warranted as to all four defendants regarding □□□□□□□□□□□ 23 | Eighth Amendment claims. This Court concurs with the Magistrate Judge’s recommendations. 24 In order to sustain a claim for a violation of the Eighth Amendment, a plaintiff must 25 jj “demonstrate that the prison condition in question caused a sufficiently serious harm or risk of 26 }| harm to inmate health or safety and that prison officials acted with ‘deliberate indifference.” 27 28 "Defendants are free to raise the issue of qualified immunity and/or good faith immunity in a motion for summary judgement at a later date.
1 || Farmer y. Brennan, 511 U.S. 825, 834 (1994). To demonstrate that a prison official was 2 || “deliberately indifferent” to a serious threat to the inmate’s safety, the prisoner must show that “the 3 □□ official [knew] of and disregard[ed] an excessive risk to inmate . . . safety; the official must both 4 || be aware of facts from which the inference could be drawn that a substantial risk of serious harm 5 || exists, and [the official] must also draw the inference.” Farmer, 511 U.S. at 837. 6 The plaintiff failed to allege any facts as to how he sustained sufficiently serious harm or 7 | how he was placed in substantial risk of serious harm as a result of the action or inaction of 8 || defendants Crisostomo, Perez, Bamba and San Nicolas. In addition, plaintiff fails to plead facts 9 | to show that defendants were aware that failure to remedy the problem would cause substantial risk 10 || of serious harm to plaintiff 11 Additionally, pursuant to 42 U.S.C. § 1997e(e) “[nJo Federal civil action may be brought 12 {| by a prisoner confined in a jail, prison, or other correctional facility for mental or emotional injury 13 || while in custody without a prior showing of physical injury.” This provision “requires a showing 14 || of physical injury that need not be significant but must be more than de minimus.” Oliver v. Keller, 15 || 289 F.3d 623, 627 (9" Cir. 2002). Plaintiff presents no evidence of physical injury due to the 16 || defendants Crisostomo, Perez, Bamba and San Nicolas’ actions. Thus, to the extent plaintiff seeks 17 || compensatory and punitive damages premised upon a violation of his Eighth Amendment right to 18 || be free from cruel and unusual punishment, section 1997e(e) bars his claim. Accordingly the 19 || defendants’ motion to dismiss as to the alleged violations by defendants Crisostomo, Perez, Bamba 20 | and San Nicolas of plaintiff's Eighth Amendment right is hereby GRANTED and DISMISSED 21 } WITHOUT PREJUDICE. 22 Equal Protection Analysis - Claims Made Against All Defendants 23 The Equal Protection clause of the Fourteenth Amendment provides that no state shall 24 || “deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially 25 || adirection that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne 26 || Living Ctr., Inc,, 473 US. 432, 440, 105 S. Ct. 3249 (1985), Further, to establish a violation of 27 | the Equal Protection Clause, the prisoner must present evidence of discriminatory intent. See, 28
1 || Washington v. Davis, 426 U.S. 229, 239-40 (1976); Freeman v. Arpaio, 125 F.3d 732, 737 (9® Cir. 2 | 1997). 3 The Magistrate recommended dismissal without prejudice as to the Equal Protection claims 4 i! against all of the defendants. This Court hereby adopts the recommendations and findings of the 5 || Magistrate Judge. Plaintiff has failed to state any facts as to how he was treated any differently 6 || from any other similarly situated inmates. Likewise, he has failed to allege any facts to provide 7 } evidence of discriminatory intent. Accordingly, the defendants’ motion to dismiss as to the alleged 8 || Equal Protection violations by each of the defendants is GRANTED and DISMISSED WITHOUT 9 || PREJUDICE. 10 In order to survive a motion for failure to state a claim with respect to Equal Protection 11 violations plaintiff must amend his complaint to include facts which establish evidence of how he 12 | was treated differently than any other inmate, in addition to establishing some threshold of || discriminatory intent on the part of each defendant. 14 Due Process Analysis ~ Claim s Made Against Defendants Quichocho and Ishizaki 15 The Due Process clause of the constitution protects individuals from government actions 16 that deprive them of life, liberty or property without due process of law. The Due Process clause 17 || provides prisoners two separate sources of protection against unconstitutional state disciplinary 18 || actions. First, a prisoner may challenge a disciplinary action which deprives or restrains a state- 19 || created liberty interest in some "unexpected manner." Sandin v. Conner, 515 U.S. 472, 483-84, 115 20 || S.Ct. 2293, 132 L.Ed.2d 418 (1995), Second, a prisoner may challenge a state action which does 21 {| not restrain a protected liberty interest, but which nonetheless imposes some "atypical and 22 || significant hardship on the inmate in relation to the ordinary incidents of prison life." Jd. 23 With respect to defendant Quichocho, the Magistrate noted that the complaint was 24 || insufficient to state a cause of action asserting that, “the Plaintiff fails to state any actionable claim 25 || against Defendant Quichocho.” See, Report at 13. Therefore, the Magistrate recommended 26 || dismissal of the Due Process claims be dismissed. Jd This Court agrees. The plaintiffs fourth 27 || cause of action against defendant Quichocho fails to allege facts to support his conclusory 28 {| statement that Quichocho “unlawfully acted in excess of jurisdiction by being the Presenting
1 | Stafi/Personnel.” See, Plaintiff's Complaint at 6, | 29. Plaintiff fails to indicate why or how 2 Quichocho's actions were unlawful or in “excess of discretion.” Further, plaintiff fails to indicate 3 | how Quichocho contributed to the denial of Due Process. Plaintiff himself admits that a 4}! disciplinary hearing was in fact held and that Quichocho had no part in the appellate process. Thus, 5 || to the extent that the fourth cause of action attempts to raise a violation of the Due Process Clause 6 || under § 1983, the claim fails to state a claim for relief. Accordingly, the motion to dismiss as to 7 the fourth cause of action regarding a violation of the Due Process Clause is DISMISSED WITH 8 | PREJUDICE. 9 With respect to defendant Ishizaki, the Magistrate found that plaintiff's assertion alleging 10 that Ishizaki failed to provide a timely answer, if any, to his appeal was sufficient to support an 11 || actionable claim, See, Report at 12. Accordingly, the Magistrate Judge recommended that the Due 12 }) Process claims against Ishizaki be denied. Jd. 13 The Court hereby departs with the recommendations and findings of the Magistrate. 14 || Plaintiff's claimed loss of a liberty interest in the failure of the defendant Ishizaki to provide a 15 timely answer, if any, to his appeal does not satisfy the standards as set forth in Sandin, because 16 | inmates lack a separate constitutional entitlement to a specific prison grievance procedure. □□□□□ 17 ftv. Adams, 855 F.2d 639, 640 (9th Cir.1988). Accordingly, the plaintiff’s claim lacks the necessary 18 constitutional foundation, and thus does not extend his confinement in an unexpected manner. The 19 || defendants’ motion to dismiss as to the fifth cause of action regarding a violation of the Due 20 || Process Clause by defendant Ishizaki is DISMISSED WITH PREJUDICE. 21 Cognizability of Violations of State Law and Negligence-based Claims 22 With respect to violations of state law, the Magistrate, in his Report, found that “[w]here 23 |! the violation of state law causes the deprivation of rights protected by the Constitution and statutes 24 || of the United States, a cause of action is stated under 42 U.S.C. § 1983.” See, Report at 13 (citing, 25 || Wirth v. Surles, 562 F. 2d 319, 322 (4" Cir. 1977). As such, the Magistrate recommended that 26 | Defendant's Motion to Dismiss be denied. Jd. a7 | The Court hereby departs from the findings and recommendations of the magistrate for the 28 reasons previously stated above pursuant to the mandates of Mann. Since there is no substantive
1 jl right to prison grievance procedures, the failure of prison officials to comply with those procedures 2 || is not actionable under § 1983. 3 With respect to the claims predicated on mere negligence, the Magistrate found that § 1983 4 | precludes claims alleging mere negligence pursuant to Wood v. Ostrander, 879 F.2d 583, 587 (9" 5 | Cir. 1989) and therefore recommended that Plaintiff's claims based on Defendants' “negligent 6 || performance of their ministerial duties,” be dismissed. Jd. 7 This Court concurs with the recommendations and findings of the Magistrate. Accordingly, 8 || Defendants motion to dismiss under pursuant to the lack of cognizable claims under state law and 9 || negligence based claims is granted and DISMISSED WITH PREJUDICE. 10 Whether Plaintiff Exhausted Administrative Remedies 11 Defendants move to dismiss plaintiffs action due to a failure to exhaust administrative 12 || remedies prior to filing suit. The Magistrate, in his report, found that “exhaustion of administrative 13 || remedies prior to the commencement of litigation is required by 42 U.S.C. § □□□□□□□□□□ 14 |) Nonexhaustion under § 1997e is a defense which must be raised and proved by the Defendants.’ 15 || See, Report at 14, (citing Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). Further, the 16 || Magistrate Judge noted that the defendants have failed to prove such a defense in that they have not 17 || provided any evidence of nonexhaustion, but merely state that plaintiff has failed to follow all the 18 || grievance procedures.’ Jd. The Magistrate recommended that Defendants' Motion to Dismiss in 19 || this regard be denied. id. 20 This Court hereby adopts the recommendations and findings of the Magistrate. As such 21 }| the Defendants’ Motion to Dismiss on the basis of failure to exhaust administrative remedies is 22 || DENIED. 23 | —————_———— 24 !2 49 U.S.C, § 1997e(a) provides that “{nJo 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.” 26 13 The Magistrate also expressed reservations about the classification of the Defendant's appeal as a 27 “srievance” since Executive Order 94-19 indicated that appeals were to be sent directly to the Director of Corrections. 28 The Court need not address this issue since it has adopted the finding that Defendant's have not met their affirmative burden of proof.
i Whether Defendants Preserved Defense of Lack of Personal Jurisdiction 2 Defendants assert that they are making a special appearance in moving to dismiss, thereby 3 |] preserving their right to raise, at a later time, the Federal Rule of Civil Procedure 12(b)(2) defense 4 || of lack of personal jurisdiction. The Magistrate, in his report, found the following: 5 Rule 12 has eliminated any difference between general and special appearances. Wright v. Yackley, 459 F.2d 287, 291 (9th Cir. 1972), 6 us, a party’s invocation of special appearance is of no consequence. If a party wishes to raise a Rule 12(b) defense by 7 motion, the “motion ... shall be made before pleading if a further pleading is permitted.” Feb. R. Crv. P. 12(b). However, a party 8 waives a Rule 12(b)(2) defense if it was not raised in the party's first pre-answer Rule 12 motion or in the party’s first responsive P eading 9 (ie, the answer) or in an amendment allowed by Federal Rule of ivil Procedure 15{a). See Baranof Fisheries Ltd. Partnership v. 10 Elsey, No. 95-1476-FR, 1996 U.S. Dist. LEXIS 11838, at *6-7 (D. Or. Aug. 15, 1996). See, Report at 15.
3 Likewise, the Magistrate recognized that the defendants in their motion did not challenge personal 1 14 jurisdiction, but simply stated that they wished to preserve their right to challenge it since “it is not 5 clear that all Defendants were properly served in their official and individual capacities.” (Mot. at
‘ 12.) Finally, the Magistrate found that since the Defendants failed to raise a Rule 12(b)(2) defense 1 4 in this first pre-answer Rule 12 motion, they have waived the defense of lack of personal 1 3 jurisdiction and recommended that this Court find that the Defendants may not later assert a Rule 1 12(5)(2) defense. Jd. This Court hereby adopts the recommendations and findings of the Magistrate and finds that 20 the defendants have waived the defense of lack of personal jurisdiction and as such, are precluded 21 from asserting a Rule 12(b)2 defense in the future. 22 CONCLUSION 23 Based upon the foregoing, the Court hereby orders the following: 24 1, The Court GRANTS Plaintiff's Motion to Strike the declarations of Marie Roberto 25 and Robert Camacho. 2 2, The Court GRANTS in part the Motion to Dismiss, filed by Defendants Crisostomo 27 Perez, Bamba, San Nicolas, Quichocho and Ishizaki, as to the immunity of the 28
1 | Defendants while acting in “official capacity” as alleged in the first through fifth 2 causes of action. The Plaintiff's right of recovery with respect to the Defendant's 3 | acting in “official capacity” is limited to prospective injunctive and declaratory 4 | relief. 5 3, The Court DENIES the Motion to Dismiss, filed by Defendants Crisostomo, Perez, 6 Bamba, San Nicolas, Quichocho and Ishizaki, as to the qualified immunity of the Defendants while acting as individuals in their “personal capacity” as alleged in the 8 | first through fifth causes of action. 9 A, The Court GRANTS the Motion to Dismiss, filed by Defendants Crisostomo, Perez 10 Bamba and San Nicolas for failure to state a claim as to violations of the Eighth 11 Amendment as alleged in the first, second and third causes of action. 12 5. The Court GRANTS the Motion to Dismiss, filed by Defendants Crisostomo, Perez 13 Bamba, San Nicolas, Quichocho and Ishizaki, for failure to state a claim as to Equal 14 Protection violations of the Fourteenth Amendment as alleged in the first through 15 | fifth causes of action. 16 | 6. The Court GRANTS the Motion to Dismiss, filed by Defendant Quichocho for 17 failure to state a claim as to Due Process violations of the Fourteenth Amendment 18 | as alleged in the fourth cause of action. 19 | 7. The Court GRANTS the Motion to Dismiss, filed by Ishizaki, for failure to state a 20 claim as to Due Process violations of the Fourteenth Amendment as alleged in the 21 | fifth cause of action. 22 | 8. The Court GRANTS the Motion to Dismiss, filed by Defendants Crisostomo, Perez 23 | and Bamba with respect to Plaintiffs claims that are based upon “negligent 24 | performance of ministerial duties” as alleged in the first and second causes of action. 25 | 9, The Court GRANTS the Motion to Dismiss, filed by Defendants Crisostomo, Perez, 26 Bamba, San Nicolas, Quichocho and Ishizaki with respect to Plaintiffs claims that 27 are solely based upon violation of Executive Order 94-19. 28 |
1 10. The Court DENIES the Motion to Dismiss, filed by Defendants Crisostomo, Perez 2 Bamba, San Nicolas, Quichocho and Ishizaki, as to Plaintiff's failure to exhaus 3 administrative remedies. 4 11. The Court finds that Plaintiffis foreclosed from seeking retroactive injunctive relie 5 as outlined in paragraph A, page 14 of his complaint. 6 12. The Court finds that Defendants are foreclosed from asserting a Rule 12(b)\(2 7 defense. 8 13. The Plaintiff is further ordered to amend his “prayer for relief” to distinguish eact 9 request individually (specifically with respect to requests for compensation fo: 10 “mental anguish” and punitive damages). 11 14. The Defendant is granted 30 days to amend, file and serve his complaint. Absen’ 12 an amendment conforming with this Courts order, ALL causes of action as tc 13 Defendants Crisostomo, Perez, Bamba, San Nicolas, Quichocho and Ishizaki wil. 14 be dismissed. 15 16 ORDERED this “92 day of May, 2005. 17 18 Ahan O, Cude HONORABLE DAVID O. CARTER 20 United States District Judge 21 Notice is hereby given that this document was 22 || entered on the docket onMAY 10 2005 No separate notice of entry oa the docket will 23 be issued by this Court, Mary L. M. Moran Clerk, Distrigt Court of Guam 25 . ° MAY 10 2005 uty Clerk Date 27 . 28 * The Honorable David QO. Carter, United States District Judge for California, by designation.
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