(PC) Jamison v. YC Parmia Insurance Group et al, No. 2:2014cv01710 - Document 53 (E.D. Cal. 2015)
Court Description: ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 12/9/2015 STRICKING plaintiff's 7/7/2015 surreply 52 . IT IS RECOMMENDED that defendants' 42 motion to dismiss be partially granted, and defendan ts Yolo County and YC Parma Insurance Group be dismissed; defendant Whitehead's motion to dismiss be denied; and within 21 days from any order adopting these recommendations, defendant Whitehead be directed to file a responsive pleading. Referred to Judge Garland E. Burrell, Jr.; Objections due within 14 days. (Yin, K)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JEREMY JAMISON, 12 13 14 15 Plaintiff, v. 18 ORDER AND FINDINGS AND RECOMMENDATIONS YC PARMIA INSURANCE GROUP, et al., Defendants. 16 17 No. 2:14-cv-1710 GEB KJN P I. Introduction Plaintiff is a state prisoner, proceeding without counsel. He filed a civil rights action 19 pursuant to 42 U.S.C. § 1983. Defendants’ motion to dismiss for failure to state a claim pursuant 20 to Federal Rule of Civil Procedure 12(b)(6) is pending. For the following reasons, the 21 undersigned recommends that the motion to dismiss be partially granted. 22 II. Legal Standard for Motion to Dismiss 23 Rule 12(b)(6) of the Federal Rules of Civil Procedures provides for motions to dismiss for 24 “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In 25 considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court 26 must accept as true the allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89 27 (2007), and construe the pleading in the light most favorable to the plaintiff. Jenkins v. 28 McKeithen, 395 U.S. 411, 421 (1969); Meek v. County of Riverside, 183 F.3d 962, 965 (9th Cir. 1 1 1999). Still, to survive dismissal for failure to state a claim, a pro se complaint must contain more 2 than “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a 3 cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words, 4 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 5 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim 6 upon which the court can grant relief must have facial plausibility. Twombly, 550 U.S. at 570. 7 “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to 8 draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 9 U.S. at 678. Attachments to a complaint are considered to be part of the complaint for purposes 10 of a motion to dismiss for failure to state a claim. Hal Roach Studios v. Richard Reiner & Co., 11 896 F.2d 1542, 1555 n.19 (9th Cir. 1990). 12 A motion to dismiss for failure to state a claim should not be granted unless it appears 13 beyond doubt that the plaintiff can prove no set of facts in support of his claims which would 14 entitle him to relief. Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984). In general, pro se 15 pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 16 404 U.S. 519, 520 (1972). The court has an obligation to construe such pleadings liberally. See 17 Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000). However, the court’s liberal 18 interpretation of a pro se complaint may not supply essential elements of the claim that were not 19 pled. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 20 III. Plaintiff’s Claims 21 Plaintiff alleges that on July 3, 2014, plaintiff was shackled and placed in a van with no 22 seatbelts, and claims that all seatbelts had been removed. While he was being transported in the 23 van, shackled, but not restrained by seatbelts, from Deuel Vocational Institution (“DVI”) to the 24 Yolo County Jail, plaintiff alleges that defendant Whitehead was driving 80 miles an hour and 25 collided with a big rig on the interstate. Plaintiff sustained neck and back injuries, and claims his 26 left leg is “permanently dead.” (ECF No. 14 at 3.) Plaintiff alleges that defendants YC Parmia 27 Insurance Group and the County of Yolo failed to protect plaintiff by permitting his transport 28 //// 2 1 without safety belts and by following a policy that promotes danger by transporting inmates in 2 vehicles with seat belts completely removed and insuring such vehicles. 3 IV. Defendants’ Motion to Dismiss Defendants argue that plaintiff’s claims arise from a motor vehicle accident and therefore, 4 5 at most, allege a state law negligence claim. Defendants contend that plaintiff has no 6 constitutional right to seatbelts while being transported by jail officials, and therefore defendants 7 are entitled to dismissal. Defendants rely on Newman v. Cty. of Ventura, No. CV 09-4160-JVS 8 (RC), 2010 WL 1266719, at *10 (C.D. Cal. Mar. 8, 2010), report and recommendation adopted, 9 No. CV 09-4160-JVS (RC), 2010 WL 1266725 (C.D. Cal. Mar. 26, 2010) (prisoner’s claims 10 dismissed at screening), and King v. San Joaquin Cty. Sheriff's Dep’t, No. CIV S-04-1158 GEB 11 KJM P, 2009 WL 577609, at *4-5 (E.D. Cal. Mar. 5, 2009), report and recommendation adopted, 12 No. 2:04-cv-1158 GEB KJM P, 2009 WL 959958 (E.D. Cal. Apr. 6, 2009) (summary judgment 13 granted to defendants). Defendants also contend that plaintiff raises insufficient charging 14 allegations as to defendant YC Parma Insurance Group. 15 Plaintiff counters that Yolo County failed to protect plaintiff by failing to provide seatbelts 16 to protect him from a substantial risk of harm, and the fact that they allow the custody officials to 17 have seatbelts demonstrate the county is aware of such risk. (ECF No. 49.) Plaintiff argues that 18 the county was permitted to remove seatbelts from their buses, but not their vans.1 19 In reply, defendants contend that the law is clear that prisoners have no constitutional right 20 to use seat belts when in custody and being transported by a law enforcement agency, and that 21 California Vehicle Code § 27315(a)(6) exempts defendants from mandatory seatbelt use. (ECF 22 No. 50 at 1.) Defendants state that the statute does not distinguish between a bus and a van. 23 24 25 26 27 28 1 Plaintiff asks the court to investigate defense counsel’s failure to initially send plaintiff a copy of the motion, and to bar counsel from representing defendants based on allegations that counsel allegedly refused to accept waiver of service of process. (ECF No. 49 at 10.) However, on June 8, 2015, counsel stated that the motion was re-served on plaintiff’s new address. (ECF No. 47.) On April 22, 2015, counsel signed waivers of service of summons on all three defendants. (ECF No. 38.) Plaintiff filed a timely opposition to the motion, and on June 25, 2015, plaintiff’s motion for default was denied. (ECF No. 51.) The court will render no further orders on the issue of service of process. Plaintiff is advised that the court does not investigate claims or issues raised by the parties. 3 1 On July 7, 2015, plaintiff filed a document entitled, “Memorandum in Opposition to 2 Defendants’ Reply to Plaintiff’s Opposition.” (ECF No. 52.) Such filing is a surreply, which the 3 Local Rules do not authorize. See Local Rule 230(m). Nevertheless, a district court may allow a 4 surreply “where a valid reason for such additional briefing exists, such as where the movant raises 5 new arguments in its reply brief.” Hill v. England, 2005 WL 3031136, at *1 (E.D. Cal. 2005); 6 accord Norwood v. Byers, 2013 WL 3330643, at *3 (E.D. Cal. 2013) (granting the motion to 7 strike the surreply because “defendants did not raise new arguments in their reply that 8 necessitated additional argument from plaintiff, plaintiff did not seek leave to file a surreply 9 before actually filing it, and the arguments in the surreply do not alter the analysis below”), 10 adopted, 2013 WL 5156572 (E.D. Cal. 2013). In the present case, defendants did not raise new 11 arguments in their reply brief, plaintiff did not seek leave to file a surreply, and his arguments 12 therein do not impact the court’s analysis. Thus, the court strikes plaintiff’s surreply. 13 V. Discussion 14 Here, the constitutional right that is being litigated is plaintiff’s right to be free from 15 unreasonable risks of harm and defendant Whitehead’s alleged deliberate indifference to those 16 risks. See Brown v. Fortner, 518 F.3d 552, 561 (8th Cir. 2008) (finding the right at issue as the 17 right of inmates to be free from unreasonable and substantial risks of harm when inmate alleged 18 that officer’s conduct of reckless driving and denial of seatbelt was constitutional violation). It is 19 settled law that prison officials have a duty under the Eighth Amendment to avoid an excessive 20 risk to inmate safety. See, e.g., Farmer v. Brennan, 511 U.S. 825, 834 (1994). To state a claim 21 under the Eighth Amendment based upon a defendant’s failure to prevent injury, a plaintiff must 22 allege that defendants were “deliberate[ly] indifferen[t]” to “conditions posing a substantial risk 23 of serious harm.” Id. Deliberate indifference is more than mere negligence, but less than purpose 24 or knowledge. See id. at 836. A prison official acts with deliberate indifference only if he 25 “knows of and disregards an excessive risk to inmate health and safety; the official must both be 26 aware of facts from which the inference could be drawn that a substantial risk of serious harm 27 exists, and he must also draw the inference.” Id. at 837; accord Clement v. Gomez, 298 F.3d 898, 28 904 (9th Cir. 2002). 4 1 Taking plaintiff’s allegations as true, defendant Whitehead’s actions of placing a shackled 2 inmate in a van without benefit of seatbelts and then driving recklessly, at a speed of 80 miles per 3 hour, would pose an unreasonable risk of harm. See Brown v. Fortner, 518 F.3d 552 (8th Cir. 4 2008) (potential Eighth Amendment violation where officer knew that prisoner was restrained 5 and could not secure his own seatbelt, rejected request for a seatbelt, drove recklessly, and 6 ignored requests to slow down); Wilbert v. Quarterman, 647 F.Supp.2d 760, 769 (S.D. Tex. 2009) 7 (“Considering the different circuit court opinions, it appears that an allegation of simply being 8 transported without a seatbelt does not, in and of itself, give rise to a constitutional claim. 9 However, if the claim is combined with allegations that the driver was driving recklessly, this 10 combination of factors may violate the Eighth Amendment.”); Brown v. Saca, No. EDCV 09- 11 01608-ODW, 2010 WL 2630891, *4 (C.D. Cal. June 9, 2010) (“plaintiff’s allegations that Saca 12 and Crispin refused to secure his seatbelt are sufficient to state a claim under the Eighth 13 Amendment because he has alleged that Saca and Crispin acted recklessly”). Thus, the instant 14 action is distinguishable from Newman, where the inmate alleged that his constitutional rights 15 were violated “when he was transported to court on a bus that did not have seat belts.” Newman, 16 2010 WL 1266719, at *10. Mr. Newman did not allege that a jail official drove recklessly. Id. 17 Perhaps defendant Whitehead can adduce evidence that he was not driving recklessly or 18 exceeding the posted speed limit, or that for some reason he was unaware of a substantial risk of 19 harm. See King, 2009 WL 577609; Brown, 518 F.3d at 560. But such questions of fact cannot 20 be resolved at this stage of the litigation. However, defendants’ motion to dismiss Yolo County and the YC Parma Insurance Group 21 22 is well-taken. Defendant Yolo County was exempt under state law from providing seatbelts in 23 their transport vans.2 Thus, defendants cannot be liable based solely on their failure to provide 24 2 25 26 27 28 The California Motor Vehicle Safety Act provides for the mandatory use of seatbelts. Cal. Veh. Code § 27315. However, Section 27315 provides a pertinent exception: This section also does not apply to a public employee, if the public employee is in an authorized emergency vehicle as defined in paragraph (1) of subdivision (b) of Section 165, or to a passenger in a seat behind the front seat of an authorized emergency vehicle as defined in paragraph (1) of subdivision (b) of Section 165 operated by the public employee, unless required by the agency employing 5 1 seatbelts. Plaintiff does not allege that the county had a policy of providing seatbelts but 2 defendant Whitehead did not use them. Rather, plaintiff alleges that the seatbelts were removed. 3 Thus, the county’s failure to provide seatbelts, standing alone, is insufficient to state a cognizable 4 civil rights claim against the county. Carrasquillo v. City of New York, 324 F.Supp.2d 428, 437 5 (S.D. N.Y. 2004) (“[F]ailure to provide seatbelts to prisoners is not a constitutional violation 6 under § 1983.”); King, 2009 WL 577609 at *4 (“[A] prison’s or jail’s failure to equip a van or bus 7 with seatbelts for the prisoners does not rise to the level of deliberate indifference as a matter of 8 constitutional law.”). Similarly, YC Parma, as the provider of liability insurance, cannot be held 9 liable for the failure to provide or to require seatbelts. 10 Moreover, Yolo County and YC Parma cannot be responsible under a theory of 11 respondeat superior. The Civil Rights Act under which this action was filed provides as follows: 12 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 13 14 15 42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the 16 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 17 Monell v. Department of Social Servs., 436 U.S. 658 (1978) (“Congress did not intend § 1983 18 liability to attach where . . . causation [is] absent.”); Rizzo v. Goode, 423 U.S. 362 (1976) (no 19 affirmative link between the incidents of police misconduct and the adoption of any plan or policy 20 21 22 23 24 25 26 the public employee. Cal. Veh. Code § 27315(g). Despite plaintiff’s argument that Section 27315 applies to buses but not vans, plaintiff is mistaken. Pursuant to Section 165 of the California Vehicle Code, an “authorized emergency vehicle” is defined as: (b) Any publicly owned vehicle operated by the following persons, agencies, or organizations: (1) Any federal, state, or local agency, department, or district employing peace officers as that term is defined in Chapter 4.5 (commencing with Section 830) of Part 2 of Title 3 of the Penal Code, for use by those officers in the performance of their duties. 27 28 Cal. Vehicle Code § 165(b)(1). Under California Penal Code section 830.1(a), sheriffs and deputy sheriffs are peace officers. 6 1 demonstrating their authorization or approval of such misconduct). “A person ‘subjects’ another 2 to the deprivation of a constitutional right, within the meaning of § 1983, if he does an 3 affirmative act, participates in another’s affirmative acts or omits to perform an act which he is 4 legally required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 5 588 F.2d 740, 743 (9th Cir. 1978). Here, plaintiff alleges no facts demonstrating that either 6 defendant was involved in the July 3, 2014 incident. Thus, the motion of defendants Yolo County 7 and the YC Parma Insurance Group should be granted. Because plaintiff cannot add facts 8 demonstrating their liability, granting plaintiff leave to amend would be futile. See Gompper v. 9 VISX, Inc., 298 F.3d 893, 898 (9th Cir. 2002) (leave to amend need not be granted where 10 amendment would be futile). 11 VI. Conclusion Accordingly, IT IS HEREBY ORDERED that plaintiff’s July 7, 2015 surreply (ECF No. 12 13 52) is stricken; and 14 IT IS RECOMMENDED that: 15 1. Defendants’ motion to dismiss (ECF No. 21) be partially granted, and defendants Yolo 16 County and YC Parma Insurance Group be dismissed; 17 2. Defendant Whitehead’s motion to dismiss be denied; and 18 3. Within twenty-one days from any order by the district court adopting these findings 19 and recommendations, defendant Whitehead be directed to file a responsive pleading. 20 These findings and recommendations are submitted to the United States District Judge 21 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 22 after being served with these findings and recommendations, any party may file written 23 objections with the court and serve a copy on all parties. Such a document should be captioned 24 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 25 objections shall be filed and served within fourteen days after service of the objections. The 26 parties are advised that failure to file objections within the specified time may waive the right to 27 //// 28 //// 7 1 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 2 Dated: December 9, 2015 3 4 jami1710.mtd 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8
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