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Suit Alleging That Prison Guards Stomped on Face of Inmate, Who Later Died, Is Revived
Ninth Circuit Opinion Says Dismissal With Prejudice Was Improper Where Judge Made Note of Allegations That Might Save Claims if Plaintiff Were Granted Leave to Amend
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday held that a trial judge erred in dismissing, with prejudice, a complaint filed against prison guards by the surviving family members of an inmate who died with markings allegedly consistent with the sole of a prison boot on his face, saying the failure to allow leave to amend was improper where the judge identified certain arguments as potentially meritorious.
Appealing the dismissal was the estate of Kenneth Sumner, along with the decedent’s mother, on behalf of herself and the prisoner’s children. They allege that, on July 7, 2021, an unknown assailant assaulted the then-healthy, 37-year-old Sumner while he was serving a sentence at the Corcoran State Prison-Substance Abuse Treatment Facility.
In the operative second amended complaint, filed in February 2023 against the California Department of Corrections and Rehabilitation (“CDCR”) and CDCR Officers David Aguilar, Hunter Duncan, Leonardo Hernandez, Anthony Luna, Isaac Salcedo, and Anthony Velasquez, the plaintiffs allege:
“Mr. Sumner was housed with a notoriously violent and unrepentant inmate, Okalani Latu in a two-man cell….Corcoran Staff…ignored their obligation to monitor [Sumner’s] safety….[O]n July 7, 2021, at about 2:27pm, Mr. Sumner was found in cardiac arrest in a pool of his own blood and succumbed to his injuries within days. Medical reports reveal Mr. Sumner suffered critical blunt force head and chest trauma with such intensity that stellate lacerations from his assaulter’s boot, a clothing item inaccessible to inmates, remained visible on his face for days following the assault—suggesting culpability by on-duty officers and Mr. Sumner’s cellmate.
“Based upon the official CDCR uniform checklist, all on-duty officers are required to wear thick soled “Black books (no stitching across toe, no steel toe) minimum height 8 inches, maximum 10 inches”—a description consistent with a weapon capable of inflicting the stellate lacerations found on his forehead and scalp.”
They assert civil rights claims, pursuant to 42 U.S.C. §1983, for excessive force, in violation of the Fourth, Fifth, Eighth, and 14th Amendments, and failure to protect, under the Eighth Amendment, among other related causes of action.
All parties stipulated to the filing of the first and second amended complaints, which were filed without any rulings on the sufficiency of earlier pleadings.
District Court’s View
Senior District Court Judge John A. Mendez of the Eastern District of California granted CDCR’s motion to dismiss the operative second amendment complaint (“SAC”) with prejudice, finding that the state agency was protected by immunity under the 11th Amendment. On Sept. 1, 2023, Mendez also granted the officers’ motion to dismiss, saying:
“Plaintiffs’ section 1983 claim for excessive force is dismissed. Dismissal will be with prejudice as Plaintiffs have had ample opportunity to properly plead this cause of action and have failed three times to do so.”
He added:
“The Court comes to this conclusion despite Plaintiffs’ argument that the SAC alleges: (1) Sumner ‘died from the injuries sustained by a horrific boot[]stomp according to medical records,’…; and (2) ‘medical reports revealed that Mr. Sumner’s actual cause of death was critical blunt force head and chest trauma,’….The SAC does not contain such allegations and, therefore, Plaintiffs’ arguments ‘are not within the four corners of the complaint.’ ”
As to the failure-to-protect claim, which requires a finding that the defendants acted with deliberate indifference to the inmate’s safety, Mendez wrote:
“The Court reaches [its] conclusion even though Plaintiffs’ opposition argues ‘it is unreasonable to believe that all the other Defendant officers…failed to hear any noises until Officer Duncan activated the alarm system.’…However, the SAC does not allege that the responding officers were in close proximity to Sumner’s cell.….Again, Plaintiffs’ opposition’s assertions ‘are not within the four corners of the complaint.’ ”
Mendez found that the other federal claims were not distinguishable from these causes of action, or were otherwise barred, and declined to exercise supplemental jurisdiction over the asserted state law claims.
In a memorandum decision, signed by and Circuit Judges Kim M. Wardlaw and Daniel P. Collins and Senior Circuit Judge Sidney R. Thomas, the Ninth Circuit affirmed the dismissal of the claims as inadequately pled, but reversed as to the denial of leave to amend.
Leave to Amend
Thomas, Wardlaw, and Collins noted that “[u]nder Federal Rule of Civil Procedure 15(a)(2), district courts ‘should freely give leave [to amend] when justice so requires’ ” and declared that “[t]he district court erred by dismissing the SAC without leave to amend because further amendment could potentially ‘save’ the complaint.”
The jurists reasoned:
“[T]he district court twice specifically noted that Plaintiffs’ opposition to the motion to dismiss contained additional factual contentions that were not in the SAC, but the court failed to consider whether such contentions, if added in an amended complaint, could suffice to state a claim. First, although noting that the opposition asserted that Sumner ‘died from the injuries sustained by a horrific boot[]stomp according to medical records,’ the court simply noted that the SAC did not contain such allegations and then dismissed the claim without considering whether leave to amend to add such allegations (including attaching the medical records) would save the claim.”
They continued:
“Second, Plaintiffs’ opposition asserted, in relation to its failure to protect claim, that ‘it is unreasonable to believe that all the other Defendant officers (who were all in closer proximity to Mr. Sumner than Officer Duncan) failed to hear any noises until Officer Duncan activated the alarm system,’ and that the responding officers therefore ‘made a conscious choice to disregard [Sumner’s] cries for help until the alarm system was supposedly activated.’ Again, the district court rejected this argument, solely on the ground that ‘the SAC does not allege that the responding officers were in close proximity to Sumner’s cell.’ ”
Under these circumstances, the judges said:
“[D]espite identifying specific proffered allegations that might conceivably save these claims, the district court nonetheless refused to consider them and proceeded to deny leave to amend. By refusing to consider the potential viability of an amended complaint that would draw upon these additional proffered contentions in an effort to cure the deficiencies that the court identified in its order—which was its first substantive ruling on the adequacy of the complaint—the court abused its discretion in denying leave to amend.”
The case is Estate of Sumner v. California Department of Corrections and Rehabilitation, 23-3090.
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