1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 FRANK PURPURA, Case No.: 3:20cv01688-JAH-BGS

12 Plaintiff, ORDER: 13 v. (1) OVERRULING DEFENDANTS’ 14 R. CALVERT, AND DOES MEMBERS OBJECTION; OF THE INMATE CLASSIFICATION 15 COMMITTEE, in their individual (2) ADOPTING THE MAGISTRATE 16 capacities, JUDGE’S REPORT AND 17 Defendants. RECOMMENDATION;

18 (3) DENYING DEFENDANTS’ 19 MOTION TO DISMISS [Doc Nos. 29, 38, 39] 20

21 INTRODUCTION 22 Pending before the Court is R. Calvert’s (“Defendant”) Motion to Dismiss the Fourth 23 Amended Complaint. (Doc. No. 29). The Honorable Bernard G. Skomal, United States 24 Magistrate Judge, issued a report and recommendation (“Report”) recommending the 25 Court deny Defendant’s motion to dismiss the Eighth Amendment claim and state law 26 claim and dismiss Plaintiff’s Fourteenth Amendment claim without leave to amend. See 27 Doc. No. 38. After careful consideration of the parties’ submissions, and for the reasons 28 1 set forth below, the Court (1) OVERRULES Defendant’s objection; (2) ADOPTS the 2 magistrate judge’s Report; (3) DENIES Defendant’s motion to dismiss the Eighth 3 Amendment and state law claim; and (4) DISMISSES Plaintiff’s Fourteenth Amendment 4 claim without leave to amend. 5 BACKGROUND 6 Following this Court’s order adopting the magistrate judge’s report and 7 recommendation and dismissing Plaintiff’s third amended complaint with leave to amend, 8 Plaintiff filed a fourth amended complaint on October 5, 2022. Plaintiff asserts claims for 9 negligence and wrongful act and omission under

(d) and cruel and 10 unusual punishment and failure to protect in violation of the Eighth and Fourteenth 11 Amendments of the United States Constitution. (Doc. No. 27). The complaint alleges, 12 inter alia, that on June 16, 2019, Plaintiff, a Level 2 inmate housed with Levels 2 and 3 13 inmates, was battered and stabbed by a Level 4 inmate, Inmate Bevell, who was improperly 14 classified into Plaintiff’s yard (“incident”).

On October 21, 2022, Defendant filed a 15 motion to dismiss the fourth amended complaint. (Doc. No. 29). On November 21, 2022, 16 Plaintiff opposed the motion. (Doc. No. 34). On November 29, 2022, Defendant filed a 17 reply. (Doc. No. 36). 18 On June 7, 2023, Judge Skomal filed the instant Report recommending that this 19 Court deny Defendant’s motion to dismiss. (Doc. No. 38). On June 21, 2023, Defendant 20 objected to the Report. (Doc. No. 39). On July 5, 2023, Plaintiff filed a reply. (Doc. No. 21 40). 22 DISCUSSION 23 I. Legal Standard 24 The district court’s role in reviewing a magistrate judge’s report and 25 recommendation is set forth in

(b)(1). Under this statute, the court “shall 26 make a de novo determination of those portions of the report . . . to which objection is 27 made,” and “may accept, reject, or modify, in whole or in part, the findings or 28 recommendations made by the magistrate judge.”

The party objecting to the magistrate 1 judge’s findings and recommendation bears the responsibility of specifically setting forth 2 which of the magistrate judge’s findings the party contests. See Fed. R. Civ. P. 72(b). It 3 is well-settled, under Rule 72(b) of the Federal Rules of Civil Procedure, that a district 4 court may adopt those parts of a magistrate judge’s report to which no specific objection is 5 made, provided they are not clearly erroneous. See Thomas v. Arn.,

, 149-50 6 (1985). 7 II. Analysis 8 a. Magistrate Judge’s Recommendation 9 The magistrate judge recommended that this Court deny Defendant’s motion to 10 dismiss the Eighth Amendment claim. The magistrate judge found that the new allegation 11 in the fourth amended complaint—namely, that Inmate Bevell had just completed time in 12 the Segregated Housing Unit (“SHU”) for stabbing another inmate at the time he was 13 placed in Plaintiff’s yard—is a non-conclusory and specific factual allegation that raises 14 an inference that Defendant knew of facts from which the inference could be drawn that a 15 substantial risk of harm existed and Defendant drew that inference. The magistrate judge 16 determined that, with the inclusion of the new factual allegations, Plaintiff’s fourth 17 amended complaint adequately pleads that Defendant acted with deliberate indifference to 18 Plaintiff’s safety by placing Inmate Bevell in his yard despite the risk. The magistrate 19 judge held that Plaintiff’s allegations are sufficient to state a failure to protect claim under 20 the Eighth Amendment. 21 The magistrate judge also determined that Plaintiff’s state law claim for 22 negligence/wrongful act and omission under California Government Code section 844.6(d) 23 should not be dismissed because the court does not recommend that Plaintiff’s federal § 24 1983 claim be dismissed. Finally, the magistrate judge found that Plaintiff’s claim for 25 failure to protect under the Fourteenth Amendment is preempted by the Eighth 26 Amendment. As such, the Report recommends denying Defendant’s motion to dismiss 27 Plaintiff’s Eighth Amendment claim and state law claim and recommends dismissing 28 Plaintiff’s Fourteenth Amendment claim without leave to amend. 1 b. Defendant’s Objection 2 Defendant objects to the magistrate judge’s recommendation to deny Defendant’s 3 motion to dismiss and requests that the district court enter an order dismissing Plaintiff’s 4 complaint without leave to amend. Defendant argues Plaintiff’s fourth amended complaint 5 did not allege significant facts that Defendant knew or should have known another inmate 6 would attack Plaintiff. Relying on Farmer v. Brennan,

(1994), Defendant 7 contends Plaintiff’s allegations fail to satisfy the standard for criminal recklessness and 8 allege, at most, Defendant was negligent. Defendant maintains here, unlike Farmer, the 9 allegations show a “single, spontaneous, isolated incident” between Plaintiff and the other 10 inmate. See Doc. No. 39 at 3. Defendant further maintains Plaintiff is required to allege 11 facts that Defendant knew Inmate Bevell intended to harm Plaintiff specifically. Defendant 12 distinguishes this action from Hearns v. Terhune,

(9th Cir. 2005), a case 13 cited in the Report, and argues the facts here are “too vague, conclusory, and speculative 14 to infer knowledge.”

Therefore, Defendant argues, his actions fail to rise to the level 15 of criminal recklessness. Defendant further argues, if this Court does grant Defendant’s 16 motion to dismiss the Eight Amendment claim, Plaintiff’s state law claims should also be 17 dismissed. 18 In reply, Plaintiff argues his allegations meet the standard for criminal recklessness 19 because he does not have to demonstrate Defendant knew about a specific risk to Plaintiff 20 rather than a risk to all similarly situated inmates. Plaintiff contrasts Farmer and Hearns, 21 arguing the alleged facts that Defendant knew about Inmate Bevell’s tendency to attack 22 other inmates, in addition to his recent term in the SHU and level 4 inmate status, are 23 sufficient to establish deliberate indifference. Plaintiff further argues the incident was not 24 an isolated incident, as Inmate Bevell stabbed and attacked other inmates prior to the 25 incident. 26 In the Report, the magistrate judge looked to Farmer and determined that Plaintiff’s 27 pleading was sufficient because the new allegation raises an inference that Defendant knew 28 of facts from which the inference could be drawn that a substantial risk of harm existed, 1 and Defendant drew that inference. Because Defendant knew of Inmate Bevell’s recent 2 history, Defendant acted with deliberate indifference to Plaintiff’s safety by placing Inmate 3 Bevell in his yard despite the risk. The “deliberate indifference” standard in Farmer 4 requires that the official acted or failed to act despite his knowledge of substantial risk of 5 serious harm.

. The official need not believe that harm would actually 6 befall an inmate.

This Court agrees with the magistrate judge’s finding that Plaintiff’s 7 new allegation is sufficient to raise an inference that Defendant had the requisite knowledge 8 of substantial risk to Plaintiff. Defendant’s objection that Plaintiff did not allege significant 9 facts that Defendant knew or should have known another inmate would attack Plaintiff is 10 OVERRULED. 11 This Court may adopt the magistrate judge’s findings and conclusions presented in 12 the report that were not objected to so long as they are not clearly erroneous. See Thomas, 13

. This Court’s careful de novo review, as to the portions of the Report 14 not specifically objected to, confirms that the magistrate judge presented a cogent analysis 15 and, thus, finds the magistrate judge’s findings and conclusions are not clearly erroneous. 16 Accordingly, this Court ADOPTS in full all portions of the magistrate judge’s Report 17 where no specific objection was raised. 18 CONCLUSION AND ORDER 19 Based on the foregoing, IT IS HEREBY ORDERED that: 20 1. Defendants’ objection [Doc. No. 39] is OVERRULED; 21 2. The findings and conclusions of the magistrate judge presented in the report 22 and recommendation [Doc. No. 38] are ADOPTED in their entirety; 23 3. Defendants’ Motion to Dismiss Plaintiff’s Eighth Amendment claim and 24 state law claim [Doc. No. 29] is DENIED; 25 // 26 // 27 // 28 // 1 4. Plaintiff's Fourteenth Amendment claim is DISMISSED with prejudice. 2 || DATED: September 19, 2023 } | | | □ 4 JOHN A. HOUSTON MATED STATES DISTRICT JUDGE 5 6 7 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28