1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 ESTATE OF KENNETH DALE SUMNER, No. 2:22-cv-01638-JAM-DB KERRI SUMNER, individually and as 10 successors-in-interest to KENNETH DALE SUMNER; and D.S.A., a minor, 11 by and through her guardian ad ORDER GRANTING DAVID litem, KERRI SUMNER, AGUILAR, HUNTER DUNCAN, 12 LEONARDO HERNANDEZ, ANTHONY Plaintiffs, LUNA, ISAAC SALCEDO, AND 13 ANTHONY VELASQUEZ’S MOTION v. TO DISMISS 14

CALIFORNIA DEPARTMENT OF

15 CORRECTIONS AND REHABILITATION;

DAVID AGUILAR; HUNTER DUNCAN;

16 LENOARDO HERNANDEZ; ANTHONY LUNA;

ISAAC SALCEDO; ANTHONY VELASQUEZ;

17 OKALANI LATU, an individual; and

DOES 7-20,

18 Defendants. 19 20 The estate of Kenneth Sumner (“Sumner”), Kerri Sumner, and 21 Sumner’s minor child (collectively “Plaintiffs”) filed this 22 lawsuit against the California Department of Corrections and 23 Rehabilitation (“CDCR”), various CDCR officers, Okalani Latu 24 (“Latu”), a cellmate of Sumner, and fictitious persons, alleging 25 a host of civil rights violations relating to Sumner’s 26 incarceration at CDCR’s Substance Abuse Treatment Facility 27 (“SATF”) in Corcoran, California. See Second Am. Compl. (“SAC”), 28 ECF No. 27. The CDCR officers—David Aguilar, Hunter Duncan, 1 Leonardo Hernandez, Anthony Luna, Isaac Salcedo, and Anthony 2 Velasquez (collectively “Defendants”)—bring this motion to 3 dismiss (“motion”), asking the court to dismiss Plaintiffs’ 4 claims against them. See Mot. to Dismiss (“Mot.”), ECF No. 42. 5 Plaintiffs opposed and Defendants replied. See Opp’n, ECF No. 6 46; Reply, ECF No. 38. 7 For the reasons explained below, the Court GRANTS 8 Defendants’ motion.1 9 I. BACKGROUND 10 As the parties are already familiar with the facts, the 11 Court only repeats them as needed to explain its decision. In 12 July 2021, Sumner was incarcerated at SATF where he shared a cell 13 with Latu. See SAC ¶ 19. After hearing “loud knocking noises” 14 and “blood coming from the bottom” of Sumner and Latu’s cell, 15 Officer Duncan activated his personal alarm. See Id. ¶¶ 23-25. 16 Sergeant Salcedo and Officers Aguilar, Hernandez, Velasquez, and 17 Luna responded to the scene. Id. ¶¶ 26-28. Officer Duncan 18 opened the cell’s door and discovered Sumner on the floor in 19 cardiac arrest. See Id. ¶ 25, 31. Officers Hernandez and Aguilar 20 removed Latu to a holding cell. See Id. ¶ 28. Sumner was then 21 airlifted to Kaweah Delta Medical Center and found apneic and 22 pulseless upon arrival. See Id. ¶ 31. Sumner’s scalp also 23 exhibited stellate lacerations See Id. ¶ 32. Sumner was placed 24 on life support but died five days later. See Id. ¶ 33. 25 26

27 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled 28 for June 27, 2023. 1 Plaintiffs initiated this lawsuit on September 16, 2022 and 2 subsequently filed two amended complaints. It is their Second 3 Amended Complaint (“SAC”), filed on February 24, 2023, against 4 CDCR, Defendants, Latu, and various fictious persons for state 5 law claims and constitutional violations under 42 U.S.C. § 1983. 6 See Id. ¶¶ 37-77, that Defendants now seek to dismiss. 7 II. OPINION 8 A. Legal Standard 9 When weighing a motion to dismiss, courts “accept factual 10 allegations in the complaint as true and construe the pleadings 11 in the light most favorable to the nonmoving party.” Manzarek v. 12 St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 13 2008). However, “a complaint must contain sufficient factual 14 matter, accepted as true, to ‘state a claim to relief that is 15 plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 16 (2009) (quoting Bell Atl. Corp. v. Twombly 550 U.S. 544, 570 17 (2007)). Facial plausibility exists when “the plaintiff pleads 18 factual content that allows the court to draw the reasonable 19 inference that the defendant is liable for the misconduct 20 alleged.” Id. However, “a formulaic recitation of a cause of 21 action’s elements will not do.” Twombly, 550 U.S. at 545. Such 22 statements are “legal conclusion[s] couched as factual 23 allegation[s]” that must be dismissed. Papasan v. Allain, 478 24 U.S. 265, 286 (1986). 25 B. Analysis 26 1. Plaintiffs’ Section 1983 Claim for Excessive Force 27 Plaintiff’s first cause of action under section 1983 alleges 28 Defendants violated Sumner’s constitutional rights under the 1 Fourth, Eighth and Fourteenth Amendments to be free from 2 excessive force. See SAC ¶¶ 37-43. However, because Sumner was 3 “serving his sentence,” SAC ¶ 19, Plaintiffs’ claim is only 4 viable under the Eighth Amendment’s ban on cruel and unusual 5 punishment that protects prisoners from physically abusive 6 governmental conduct. Graham v. Connor, 490 U.S. 386, 394 7 (1989); see also Whitley v. Albers, 475 U.S. 312, 318–326 (1986) 8 (claim of excessive force to subdue convicted prisoner analyzed 9 under an Eighth Amendment standard). The Fourth and Fourteenth 10 Amendments are inapplicable as the former protects free citizens 11 from unreasonable searches and seizures, while the latter 12 protects pretrial detainees from the “use of excessive force that 13 amounts to punishment.” Id. at 394-395; see also Tennessee v. 14 Garner, 471 U.S. 1, 7–22 (1985) (claim of excessive force to 15 effect arrest analyzed under a Fourth Amendment standard).2 The 16 Court therefore limits its analysis to excessive force under the 17 Eighth Amendment. 18 An Eighth Amendment claim for excessive force arises when 19 prison officials participate in “the unnecessary and wanton 20 infliction of pain,” Hudson v. McMillian, 503 U.S. 1, 5 (1992), 21 that causes a plaintiff harm, Hoard v. Hartman, 904 F.3d 780, 788 22 n.9 (9th Cir. 2018). To determine whether such force existed, 23

24 2Plaintiffs’ SAC also asserts this claim under the Fifth Amendment. However, Plaintiffs cannot rely on this 25 constitutional provision because: (1) it only applies to the federal government; and (2) Defendants are state actors. See 26 Ludavico v. Sacramento Cnty., No. 2:08-CV-01473-MCE, 2012 WL 27 5424719, at *3 (E.D. Cal. Nov. 6, 2012). Given Plaintiffs’ reliance on the Fifth Amendment fails as a matter of law, the 28 Court need not address it further. 1 the Court’s “core judicial inquiry is . . . whether force was 2 applied in a good-faith effort to maintain or restore discipline, 3 or maliciously and sadistically to cause harm.” Id. Plaintiffs 4 allege Defendants subjected Sumner to excessive force because his 5 scalp exhibited stellate lacerations consistent with a boot—a 6 shoe Plaintiffs contend is unavailable to inmates but required by 7 CDCR’s uniform. See SAC ¶¶ 20, 28, 32. To support this 8 conclusion, Plaintiffs point to the fact that: (1) a search of 9 Latu’s cell following Defendants’ intervention “came up empty,” 10 id. ¶ 28; and (2) Sumner died from “blunt-force trauma sustained 11 in the assault,” id. ¶ 32. Plaintiffs argue these facts 12 sufficiently demonstrate Defendants: (1) “abused their authority 13 as [] correctional officer[s] when one of their boots beat Mr. 14 Sumner until he was placed in cardiac arrest and lost full 15 consciousness,” id. ¶ 40; and (2) “knowingly and intentionally 16 employed force that was harmful, unwanted, and excessive, and was 17 employed with the intent of causing pain to [Sumner] for a 18 purpose unrelated to any legitimate official objective,” id. 19 ¶ 39. 20 In response, Defendants argue Plaintiffs’ SAC fails to state 21 a claim because it “does not plead facts showing use of excessive 22 force by any Defendant.” Mot. at 6. They also argue the SAC 23 consists of “conclusory assertions that . . . do[] not supply any 24 factual support for this verbatim list of the elements of an 25 excessive force claim.” Id. To highlight the SAC’s 26 deficiencies, Defendants point to the fact that “[i]t does not 27 state who apart from Defendants generically used force, when they 28 used force, how they used force, or where they used force.” Id. 1 at 6-7. As a result, Defendants argue the SAC is “no more than 2 [a] conclusion [and] not entitled to the assumption of truth.” 3 Id. quoting Iqbal, 556 U.S. at 679. 4 After careful examination, the Court agrees with Defendants 5 and finds Plaintiffs have failed to sustain their burden under 6 Iqbal. First, the Court notes the SAC’s timeline conflicts with 7 the conclusion Plaintiffs want the Court to draw, i.e., 8 Defendants caused Sumner’s life-ending injuries. Specifically 9 the SAC alleges: (1) Duncan activated his alarm after he saw 10 blood coming from Sumner and Latu’s cell, SAC ¶ 23; and (2) 11 Sumner “was already in full blown cardiac arrest once Corcoran 12 staff finally intervened,” id. ¶ 25. These facts suggest the 13 harm causing Sumner’s death occurred prior to Defendants’ alleged 14 involvement, preventing the Court from making “the reasonable 15 inference that the [Defendants] [are] liable for the misconduct 16 alleged.” Iqbal, 556 U.S. at 678. Instead, such facts suggest 17 Latu caused the injuries resulting in Sumner’s death—not 18 Defendants. Absent sufficient facts showing Defendants caused 19 Sumner harm—an essential element of an Eighth Amendment claim for 20 excessive force—this claim must be dismissed. 21 Second, the Court agrees with Defendants that Plaintiffs’ 22 SAC lacks the factual content the Court needs to find their 23 allegations satisfactory under Iqbal. In particular, the SAC 24 only refers to Defendants collectively and does not explicitly 25 identify who allegedly used force against Sumner. See J.M. v. 26 Pleasant Ridge Union Sch. Dist., No. CV-216-00897-WBS-CKD, 2017 27 WL 117965, at *2 (E.D. Cal. 2017) (“Failure to delineate conduct 28 by a specific defendant prevents the court from drawing the 1 reasonable inference that the specific defendant is liable for 2 the claim alleged and justifies dismissal of the claim.”). 3 Moreover, the SAC also fails to specifically allege how and when 4 the force was exerted, or what motivated the use of such force. 5 Instead, the SAC only provides conclusory statements that 6 regurgitate the elements of an Eighth Amendment excessive force 7 claim. See e.g., SAC ¶ 39 (“Defendants knowingly and 8 intentionally employed force that was harmful, unwanted, and 9 excessive, and was employed with the intent of causing pain to 10 Plaintiff for a purpose unrelated to any legitimate official 11 objective.”). Such assertions are “legal conclusion[s] couched 12 as factual allegation[s],” Papsan, 478 U.S. at 286, thwarting the 13 Court’s ability to assess “whether force was applied in a good- 14 faith effort to maintain or restore discipline, or maliciously 15 and sadistically to cause harm.” Hudson, 503 U.S. at 5; see also 16 Hoard, 904 F.3d at 788 (“Put simply, officer intent—not officer 17 enjoyment—serves as the core dividing factor between 18 constitutional and unconstitutional applications of force.”). 19 Lacking non-conclusory facts addressing Defendants’ intent, 20 Plaintiffs’ Eighth Amendment claim for excessive force must be 21 dismissed. 22 The Court comes to this conclusion despite Plaintiffs’ 23 argument that the SAC alleges: (1) Sumner “died from the injuries 24 sustained by a horrific boot[]stomp according to medical 25 records,” Opp’n at 6; and (2) “medical reports revealed that Mr. 26 Sumner’s actual cause of death was critical blunt force head and 27 chest trauma,” Opp’n at 6-7. The SAC does not contain such 28 allegations and, therefore, Plaintiffs’ arguments “are not within 1 the four corners of the complaint.” Bailey v. MacFarland, 2 No. 2:15-CV-01725-TLN-AC, 2016 WL 2626040, at *4 (E.D. Cal. 3 May 9, 2016). Accordingly, the “Court’s consideration of these 4 allegations is not appropriate in a ruling on a motion to 5 dismiss.” Id. 6 For these reasons, Plaintiffs’ section 1983 claim for 7 excessive force is dismissed. Dismissal will be with prejudice as 8 Plaintiffs have had ample opportunity to properly plead this 9 cause of action and have failed three times to do so. The Court 10 finds that further amendment would be futile. See Gompper v. 11 VISX, Inc., 298 F.3d 893, 898 (9th Cir. 2002) (finding leave to 12 amend need not be granted when amendment would be futile). 13 2. Plaintiffs’ Section 1983 Claim for Failure to 14 Protect 15 Plaintiffs’ third cause of action under section 1983 alleges 16 Defendants failed to protect Sumner as the Eighth Amendment 17 requires. “[P]rison officials have a duty . . . to protect 18 prisoners from violence at the hands of other prisoners.” Farmer 19 v. Brennan, 511 U.S. 825, 833 (1994) (internal citation omitted). 20 Prison officials’ failure to perform this duty results in an 21 Eighth Amendment violation when: “(1) the deprivation alleged is 22 objectively, sufficiently serious and (2) the prison officials 23 had a sufficiently culpable state of mind, acting with deliberate 24 indifference.” Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 25 2005) (internal citations omitted). 26 Plaintiffs argue Defendants failed to protect Sumner from 27 Latu by “ma[king] intentional decisions that placed [Sumner] in 28 substantial risk,” SAC ¶ 54, and “fail[ing] to take reasonable 1 measures to abate the substantial risk of harm to [him],” id. 2 ¶ 55. To support these contentions, Plaintiffs allege: 3 (1) “Corcoran Staff placed [Sumner] in a cell with Mr. Latu,” SAC 4 ¶ 19; (2) Mr. Latu was “a notoriously violent and unrepentant 5 inmate,” id.; and (3) “Defendant officers knew about and 6 disregarded the substantial safety risk [Sumner] faced while 7 allegedly locked in the same cell as Mr. Latu,” id. ¶ 55. To 8 buttress their third point, Plaintiffs point to the fact that: 9 (1) Officer Duncan “dismissed the sounds of a violent commotion 10 within the cell with a simple request for Mr. Latu to ‘stop his 11 actions,’” id.; and (2) Defendants failed to “conduct routine 12 cell-checks,” id. ¶ 56. In response, Defendants contend 13 “Plaintiffs plead no facts showing [] Defendant[s] knew of, and 14 disregarded a substantial risk to [Sumner].” Mot. at 8. 15 The Court agrees with Defendants. “As to all Defendants 16 except Duncan, the SAC pleads that they responded almost 17 immediately to Duncan’s alarm and acted to restrain Latu.” Id. 18 Such facts undermine Plaintiffs’ claim that the responding 19 officers “knew of and disregarded a substantial risk of harm to 20 [Sumner].” Id. Rather, such facts suggest the officers 21 responded with urgency and took the matter seriously. 22 Furthermore, as to Defendant Duncan, the SAC asserts he ordered 23 Latu to stop when he heard loud knocking noises from the cell and 24 then activated his alarm as soon as he saw blood emerging from 25 the cell. See SAC ¶¶ 22-24. Moreover, as Defendants point out, 26 “the SAC does not state any facts showing that Duncan should have 27 sounded the alarm earlier, does not state how much time passed 28 before Duncan activated his alarm, and does not state any facts 1 showing that an earlier alarm press would have a made a 2 difference.” Mot. at 8. The Court finds that the SAC’s facts 3 actually suggest Defendant Duncan responded to the risk Latu 4 posed to Sumner in a contemporaneous manner. Lastly, Plaintiffs 5 fail to plead any facts regarding cell checks which would support 6 a claim that Defendants acted with deliberate indifference. For 7 example, they do not provide facts regarding when the cell checks 8 were supposed to occur, who was responsible for executing them, 9 and “whether any Defendant knew of a substantial risk to [Sumner] 10 if a cell check was not conducted and ignored that risk.” Id. 11 Because this third cause of action does not sufficiently allege 12 that Defendants acted with deliberate indifference towards 13 Sumner, it cannot survive Defendants’ 12(b)(6) motion and is 14 dismissed with prejudice. 15 The Court reaches this conclusion even though Plaintiffs’ 16 opposition argues “it is unreasonable to believe that all the 17 other Defendant officers (who were all in closer proximity to 18 [Sumner] than Officer Duncan) failed to hear any noises until 19 Officer Duncan activated the alarm system.” Opp’n at 8. 20 However, the SAC does not allege that the responding officers 21 were in close proximity to Sumner’s cell. Instead, the SAC only 22 states the responding officers were in SATF’s Facility C when 23 Latu attacked Sumner. See SAC ¶¶ 27-29. Again, Plaintiffs’ 24 opposition’s assertions “are not within the four corners of the 25 complaint.” Bailey v. MacFarland, No. 2:15-CV-01725-TLN-AC, 2016 26 WL 2626040, at *4 (E.D. Cal. May 9, 2016), and the “Court’s 27 consideration of these allegations is not appropriate in a ruling 28 on a motion to dismiss.” Id. Furthermore, Facility C is an 1 extensive complex that includes eight housing units, two large 2 recreational yards, a law library, medical and dental units, a 3 chapel, a small and enclosed yard, and several program offices. 4 See Martinez v. Allison, No. 1:11-CV-00293-LJO, 2014 WL 12972320, 5 at *4 (E.D. Cal. Aug. 11, 2014) (describing Facility C at SATF). 6 Plaintiffs’ claim that Defendants could hear Latu attack Sumner 7 because they were in Facility C fails to plausibly establish they 8 were within earshot of the cell and cannot save this claim on a 9 motion to dismiss. Plaintiffs’ third cause of action for failure 10 to protect under section 1983 is dismissed. The Court dismisses 11 this claim with prejudice as further amendment would be futile. 12 See Gompper, 298 F.3d at 898. 13 3. Plaintiffs’ Section 1983 Claim for Cruel and 14 Unusual Punishment 15 Plaintiffs’ second cause of action under section 1983 16 alleges Defendants violated the Eighth Amendment’s prohibition on 17 cruel and unusual punishment. See SAC ¶¶ 44-51.3 This cause of 18 action duplicates Plaintiffs’ first and third claims for 19 excessive force and failure to protect. See SAC ¶¶ 47-48 20 (alleging Defendants violated Sumner’s rights under the Eighth 21 Amendment when they “imposed an extreme example of cruel and 22 unusual punishment when they either participated in or allowed 23 Mr. Sumner to be physically beaten until he lost consciousness 24 and fell into cardiac arrest”); see also Id. ¶ 49 (asserting 25 Defendants actions of allowing Sumner to be “beaten by a uniform 26

27 3 Plaintiff also asserts this claim under the Fifth Amendment. However, Plaintiffs cannot rely on this constitutional provision 28 for the reasons discussed supra in note 1. 1 mandated boot was harmful, unwanted, and excessive . . . it was 2 also with deliberate indifference to the rights and safety of 3 [Sumner].”). Because this claim echoes the first and third 4 causes of action, Defendants argue it should be dismissed because 5 it is: (1) redundant; and (2) fails for the reasons discussed 6 above. See Mot. at 9. In response, Plaintiffs argue they 7 properly plead cruel and unusual punishment, See Opp’n at 9, and, 8 in support, simply restate their excessive force and failure to 9 protect allegations. See Id. The Court finds Plaintiffs have 10 failed to distinguish this cause of action from their first and 11 third claims and, for the same reasons as stated above for the 12 first and third, dismisses it with prejudice as further amendment 13 would be futile. See Gompper, 298 F.3d at 898. 14 4. Plaintiffs’ Monell Claim and Official Capacity 15 Claims 16 In addition to their section 1983 claims, Plaintiffs also 17 bring a Monell claim against the moving Defendants and sues them 18 in their official capacities. See SAC ¶¶ 4-9, 61-64. Defendants 19 argue the Court must dismiss this fourth cause of action with 20 prejudice since the Eleventh Amendment immunizes them from suit 21 and Monell claims are only applicable to local entities—which the 22 moving Defendants are not. See Lewis v. Clarke, 581 U.S. 155, 23 162 (2017); Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 24 (1978). See Mot. at 4, 9. Plaintiffs concede the Eleventh 25 Amendment shields Defendants from liability in their official 26 capacities and otherwise fail to oppose the dismissal of their 27 Monell claim. See Opp’n at 5. The Court therefore dismisses the 28 fourth cause of action with prejudice. See Hoggan v. Specialized ee DEI RONNIE IRIE IE IIE ID IEE OE INO OIE IRIE III SEINE IID IDI EES eee

1 Loan Servicing, LLC, No. 2:21-CV-01862-TLN-CKD, 2022 WL 4291421, 2 at *8 (E.D. Cal. Sept. 16, 2022) (“When a plaintiff simply fails 3 to address a particular claim in its opposition to a motion to 4 dismiss that claim, [the] court generally dismisses it with 5 | prejudice.”). 6 Cc. The Court Declines Supplemental Jurisdiction Over 7 Plaintiffs’ State Claims 8 A district court may sua sponte decline to exercise 9 supplemental jurisdiction over pendant state law claims if it 10 “has dismissed all claims over which it has original 11 jurisdiction.” 28 U.S.C. § 1367(c) (3). The Court has original 12 jurisdiction over Plaintiffs’ section 1983 claims. Having 13 dismissed these claims with prejudice, the Court declines to 14 exercise supplemental jurisdiction over the remaining state law 15 claims. 16 TII. ORDER 17 For the reasons set forth above, the Court GRANTS 18 Defendants’ Motion to Dismiss. Plaintiffs’ first, second, third 19 | and fourth causes of action under section 1983 are DISMISSED WITH 20 PREJUDICE. The Court declines to exercise its jurisdiction over 21 Plaintiffs’ remaining state claims. 22 IT IS SO ORDERED. 23 Dated: September 1, 2023 24 cp,

JOHN A. MENDEZ

26 SENIOR UNITED*STATES DISTRICT JUDGE 27 28 13