(PC) Tran v. Junious et al, No. 1:2014cv01320 - Document 35 (E.D. Cal. 2016)
Court Description: FINDINGS and RECOMMENDATIONS, Recommending that Defendant's Rule 12(b)(6) Motion to Dismiss be Denied 27 and that Defendant's Motion for Reconsideration be Denied 32 , signed by Magistrate Judge Erica P. Grosjean on 11/28/16. Referred to Judge Drozd; 30-Day Deadline. (Verduzco, M)
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 Plaintiff, 11 12 1:14-cv-01320-DAD-EPG (PC) BINH TRAN, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANT’S RULE 12(b)(6) MOTION TO DISMISS BE DENIED AND THAT DEFENDANT’S MOTION FOR RECONSIDERATION BE DENIED (ECF NOS. 27 & 32) v. E. SMITH, 13 Defendant. 14 OBJECTIONS, IF ANY, DUE WITHIN THIRTY DAYS 15 16 I. 17 Binh Tran (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis with 18 19 20 21 22 23 this civil rights action filed pursuant to 42 U.S.C. § 1983 and attendant state law claim for common law negligence. This case now proceeds on Plaintiff’s Second Amended Complaint, filed on February 17, 2015, against defendant Sergeant E. Smith on Eighth Amendment and negligence claims. (ECF No. 13). Plaintiff has consented to magistrate judge jurisdiction (ECF No. 5), but Defendant has not. On August 19, 2016, Defendant filed a Rule 12(b)(6) motion to dismiss for failure to 24 25 26 27 28 BACKGROUND state a claim. (ECF No. 27). On September 26, 2016, Plaintiff filed an opposition to the motion. (ECF No. 29). On October 4, 2016, Defendant filed a reply. Defendant’s motion to dismiss is now before the court. \\\ 1 (ECF No. 30). 1 II. PLAINTIFF’S ALLEGATIONS AND CLAIMS 2 Plaintiff is an inmate in the custody of the California Department of Corrections and 3 Rehabilitation (“CDCR”) at High Desert State Prison in Susanville. Plaintiff’s allegations stem 4 from conduct that occurred while Plaintiff was housed at North Kern State Prison (“NKSP”). 5 Plaintiff’s factual allegations follow. 6 A. Summary of Plaintiff’s Complaint 7 On November 19, 2012, Plaintiff was transported in a paper transportation jumpsuit. 8 Plaintiff arrived at NKSP at approximately 5:30 pm. At approximately 7:00 pm Plaintiff was 9 escorted to a cage outside of the Receiving and Releasing building. The cage was 2 ½ by 2 ½ 10 feet. It smelled of various foul smells. Plaintiff was fed in the cage that night. Plaintiff 11 remained in the cage overnight, even though it was located outside and the temperature was 12 between 30-40 degrees Fahrenheit. 13 Defendant Sergeant E. Smith was in charge of the shift that night. He would 14 occasionally come outside to make institutional counts. He was aware that Plaintiff was outside 15 in the cage throughout the night. In the middle of the night, Plaintiff was forced to urinate 16 without use of a restroom. 17 At approximately 1:30-2:00 pm the following day, an officer took Plaintiff to another 18 cage, where Plaintiff remained for several hours. At 4:00 pm Plaintiff was taken to a cell with a 19 bed, where Plaintiff finally slept. 20 B. Plaintiff’s only surviving claims are against defendant Sergeant E. Smith for violation 21 22 23 of the Eighth Amendment and negligence. III. 24 25 Claims DEFENDANT’S MOTION TO DISMISS Defendant moves to dismiss both the Eighth Amendment claim and the negligence claim. 26 Legal Standard 27 In considering a motion to dismiss, the court must accept all allegations of material fact 28 in the complaint as true. Erickson v. Pardus, 551 U.S. 89, 93–94 (2007); Hosp. Bldg. Co. v. 2 1 Rex Hosp. Trustees, 425 U.S. 738, 740 (1976). The court must also construe the alleged facts 2 in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, overruled on 3 other grounds by Davis v. Scherer, 468 U.S. 183 (1984); Barnett v. Centoni, 31 F.3d 813, 816 4 (9th Cir.1994) (per curiam). All ambiguities or doubts must also be resolved in the plaintiff's 5 favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). In addition, pro se pleadings are 6 held to a less stringent standard than those drafted by lawyers. See Haines v. Kerner, 404 U.S. 7 519, 520 (1972). 8 A motion to dismiss pursuant to Rule 12(b)(6) operates to test the sufficiency of the 9 complaint. Rule 8(a)(2) requires only “a short and plain statement of the claim showing that 10 the pleader is entitled to relief” in order to “give the defendant fair notice of what the ... claim is 11 and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 12 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). “The issue is not whether a 13 plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support 14 the claims.” Scheuer, 416 U.S. at 236 (1974). 15 The first step in testing the sufficiency of the complaint is to identify any conclusory 16 allegations. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). AThreadbare recitals of the elements 17 of a cause of action, supported by mere conclusory statements, do not suffice.@ Id. at 678 18 (citing Twombly, 550 U.S. at 555). A[A] plaintiff=s obligation to provide the grounds of his 19 entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the 20 elements of a cause of action will not do.@ Twombly, 550 U.S. at 555 (citations and quotation 21 marks omitted). 22 After assuming the veracity of all well-pleaded factual allegations, the second step is for 23 the court to determine whether the complaint pleads Aa claim to relief that is plausible on its 24 face.@ Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556) (rejecting the traditional 25 12(b)(6) standard set forth in Conley, 355 U.S. at 45-46). A claim is facially plausible when 26 the plaintiff Apleads factual content that allows the court to draw the reasonable inference that 27 the defendant is liable for the misconduct alleged.@ Id. at 678 (citing Twombly, 550 U.S. at 28 556). The standard for plausibility is not akin to a Aprobability requirement,@ but it requires 3 1 Amore than a sheer possibility that a defendant has acted unlawfully.@ Id. 2 In deciding a Rule 12(b)(6) motion, the Court generally may not consider materials 3 outside the complaint and pleadings. Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998); 4 Gumataotao v. Dir. of Dep't of Revenue & Taxation, 236 F.3d 1077, 1083 (9th Cir. 2001). 5 6 IV. DISCUSSION A. Eighth Amendment 7 Defendant asserts that Plaintiff’s Eighth Amendment claim should be dismissed because 8 it does not allege that Defendant personally participated in a constitutional violation or acted 9 with deliberate indifference. (ECF No. 27-1, p. 1). Defendant also asserts that he is entitled to 10 qualified immunity. (Id.). Plaintiff argues in response that the Defendant did personally 11 participate in the constitutional violation, and that he acted deliberate indifference. (ECF No. 12 29, p. 2-3). Plaintiff also argues that Defendant is not entitled to immunity because he acted 13 outside the scope of this authority (Id. at p. 5). 14 i. Legal Standard 15 16 17 18 19 20 The Civil Rights Act under which this claim was filed provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . . 42 U.S.C. § 1983. 21 “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a 22 method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490 U.S. 386, 23 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see also Chapman 24 v. Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los Angeles, 697 25 F.3d 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 2012); 26 Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). 27 To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted 28 under color of state law and (2) the defendant deprived him of rights secured by the 4 1 Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2 2006); see also Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing 3 “under color of state law”). A person deprives another of a constitutional right, “within the 4 meaning of § 1983, ‘if he does an affirmative act, participates in another’s affirmative act, or 5 omits to perform an act which he is legally required to do that causes the deprivation of which 6 complaint is made.’” Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th 7 Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite 8 causal connection may be established when an official sets in motion a ‘series of acts by others 9 which the actor knows or reasonably should know would cause others to inflict’ constitutional 10 harms.” Preschooler II, 479 F.3d at 1183 (quoting Johnson, 588 F.2d at 743). This standard of 11 causation “closely resembles the standard ‘foreseeability’ formulation of proximate cause.” 12 Arnold v. Int’l Bus. Mach. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City 13 of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008). 14 “It is undisputed that the treatment a prisoner receives in prison and the conditions 15 under which [the prisoner] is confined are subject to scrutiny under the Eighth Amendment.” 16 Helling v. McKinney, 509 U.S. 25, 31 (1993); see also Farmer v. Brennan, 511 U.S. 825, 832 17 (1994). Conditions of confinement may, consistent with the Constitution, be restrictive and 18 harsh. See Rhodes v. Chapman, 452 U.S. 337, 347 (1981); Morgan v. Morgensen, 465 F.3d 19 1041, 1045 (9th Cir. 2006); Osolinski v. Kane, 92 F.3d 934, 937 (9th Cir. 1996); Jordan v. 20 Gardner, 986 F.2d 1521, 1531 (9th Cir. 1993) (en banc). Prison officials must, however, 21 provide prisoners with “food, clothing, shelter, sanitation, medical care, and personal safety.” 22 Toussaint v. McCarthy, 801 F.2d 1080, 1107 (9th Cir. 1986), abrogated in part on other 23 grounds by Sandin v. Connor, 515 U.S. 472 (1995); see also Johnson v. Lewis, 217 F.3d 726, 24 731 (9th Cir. 2000); Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982), abrogated on other 25 grounds by Sandin v. Conner, 515 U.S. 472 (1995); Wright v. Rushen, 642 F.2d 1129, 1132-33 26 (9th Cir. 1981). 27 When determining whether the conditions of confinement meet the objective prong of 28 the Eighth Amendment analysis, the Court must analyze each condition separately to determine 5 1 whether that specific condition violates the Eighth Amendment. See Toussaint, 801 F.2d at 2 1107; Hoptowit, 682 F.2d at 1246-47; Wright, 642 F.2d at 1133. 3 confinement may establish an Eighth Amendment violation 'in combination' when each would 4 not do so alone, but only when they have a mutually enforcing effect that produces the 5 deprivation of a single, identifiable human need such as food, warmth, or exercise – for 6 example, a low cell temperature at night combined with a failure to issue blankets.” Wilson v. 7 Seiter, 501 U.S. 294, 304 (1991); see also Thomas v. Ponder, 611 F.3d 1144, 1151 (9th Cir. 8 2010); Osolinski, 92 F.3d at 938-39; Toussaint, 801 F.2d at 1107; Wright, 642 F.2d at 1133. 9 When considering the conditions of confinement, the Court should also consider the amount of 10 time to which the prisoner was subjected to the condition. See Hutto v. Finney, 437 U.S. 678, 11 686-87 (1978); Hearns v. Terhune, 413 F.3d 1036, 1042 (9th Cir. 2005); Hoptowit, 682 F.2d at 12 1258. As to the subjective prong of the Eighth Amendment analysis, prisoners must establish 13 prison officials' “deliberate indifference” to unconstitutional conditions of confinement to 14 establish an Eighth Amendment violation. See Farmer, 511 U.S. at 834; Wilson, 501 U.S. at 15 303. “Some conditions of 16 The deliberate indifference standard involves an objective and a subjective prong. First, 17 the alleged deprivation must be, in objective terms, “sufficiently serious….” Farmer, 511 U.S. 18 at 834 (citing Wilson, 501 U.S. at 298). Second, the prison official must “know [ ] of and 19 disregard[ ] an excessive risk to inmate health or safety . . . .” Farmer, 511 U.S. at 837. Thus, a 20 prison official may be held liable under the Eighth Amendment for denying humane conditions 21 of confinement if he knows that inmates face a substantial risk of harm and disregards that risk 22 by failing to take reasonable measures to abate it. Id. at 837–45. Prison officials may avoid 23 liability by presenting evidence that they lacked knowledge of the risk, or by presenting 24 evidence of a reasonable, albeit unsuccessful, response to the risk. Id. at 844–45. Mere 25 negligence on the part of the prison official is not sufficient to establish liability, but rather, the 26 official’s conduct must have been wanton. Id. at 835; Frost, 152 F.3d at 1128. 27 As to qualified immunity, “[q]ualified immunity shields federal and state officials from 28 money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory 6 1 or constitutional right, and (2) that the right was ‘clearly established’ at the time of the 2 challenged conduct.” Ashcroft v. Al–Kidd, 563 U.S. 731, 735 (2011) (citing Harlow v. 3 Fitzgerald, 457 U.S. 800, 818 (1982)). To be clearly established, a right must be sufficiently 4 clear “that every ‘reasonable official would [have understood] that what he is doing violates 5 that right. Reichle v. Howards, 132 S. Ct. 2088, 2090 (2012) (quoting Ashcroft, 563 U.S. at 6 741) (alteration in original). This immunity protects “all but the plainly incompetent or those 7 who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). 8 ii. 9 Analysis a. Failure to State a Claim 10 Under the Prison Litigation Reform Act (APLRA@) the court has a statutory duty to 11 screen complaints in cases such as this and dismiss any claims that fail to state a claim upon 12 which relief may be granted. 13 requirements of the PLRA, the court is disinclined to view with favor a subsequent motion 14 seeking dismissal for failure to state a claim based on issues the Court has already considered. 15 On March 21, 2016, the Court issued a screening order. (ECF No. 16). The order laid out the 16 legal standard, and found that Plaintiff stated a claim under that legal standard. (Id. at p. 4). 17 The Court's conclusion was based upon the same legal standards as utilized for a 12(b)(6) 18 motion to dismiss. 28 U.S.C. ' 1915(e)(2); 28 U.S.C. ' 1915A. Given the 19 While acknowledging that the Court found that the facts asserted in Plaintiff’s Second 20 Amended Complaint, if true, are enough to show deliberate indifference, Defendant essentially 21 asks the Court to reconsider its finding. (ECF No. 27-1, p. 3). According to Defendant, 22 Plaintiff did not plead facts showing that Defendant personally violated Plaintiff’s Eighth 23 Amendment rights or that Defendant acted with deliberate indifference. (Id.). 24 After considering Defendant’s motion to dismiss, the Court reaches the same result as it 25 did in its screening order. Plaintiff has stated that he was kept for 21 hours in a freezing, 26 cramped, unsanitary cell that did not have a toilet (ECF No. 13, p. 17-18), that Defendant knew 27 of Plaintiff’s situation because Defendant personally observed it (id. at p.18), that Defendant 28 had responsibility for the situation because he was the night shift leader (id.), and that 7 1 Defendant did nothing to remedy the situation (id.). While some reasonable inferences are 2 required, Plaintiff has alleged that Defendant knew that Plaintiff was kept in the above- 3 described conditions overnight, and did nothing to remedy the situation. As the Court found 4 previously (ECF No. 16, p. 4), these facts are enough to allege a claim against Defendant Smith 5 for violation of Plaintiff’s Eighth Amendment rights at the pleading stage. 6 In Defendant’s reply to Plaintiff’s opposition, Defendant suggests that he may not have 7 had the authority to remove Plaintiff from the cell, and even if he did, moving Plaintiff would 8 have been a security risk. (ECF No. 30, p. 2). Such arguments rely on facts not in the Second 9 Amended Complaint. Construing all facts in favor of Plaintiff, as required at this stage, 10 Plaintiff has stated a cognizable claim. 11 b. Qualified Immunity 12 As to the first prong of the qualified immunity analysis, the Court has found that, taking 13 what Plaintiff says as true for purposes of this motion (and considering no facts other than those 14 alleged in the complaint), Defendant has violated Plaintiff’s constitutional rights. As to the 15 second prong, the right that was allegedly violated was clearly established. Prison officials 16 must provide prisoners with “food, clothing, shelter, sanitation, medical care, and personal 17 safety.” Toussaint 801 F.2d at 1107 (9th Cir. 1986). Plaintiff has stated that he was wearing 18 only a paper transportation jumpsuit, and was kept overnight in freezing or near freezing 19 temperatures, in a very cramped, unsanitary cell without access to a bathroom (ECF No. 13, 20 pgs. 16-18). Therefore, taking the facts in the Second Amended Complaint as true, Defendant 21 (a state official) violated Plaintiff’s constitutional rights, which were clearly established at the 22 time of Defendant’s conduct, by denying Plaintiff adequate clothing, shelter, and sanitation. 23 While this analysis may be different once more facts come to light, at this stage in the 24 proceeding the Court finds Defendant is not entitled to qualified immunity. Accordingly, the Court will recommend that Defendant’s motion to dismiss be denied 25 26 as to Plaintiff’s Eighth Amendment Claim. 27 /// 28 /// 8 1 B. Negligence 2 Defendant argues he is immune from Plaintiff’s state law negligence claim under 3 California Government Code section 820.2 (ECF No. 27-1, pgs. 1-2). Plaintiff did not respond 4 to this contention.1 5 6 i. Legal Standard California Government Code section 820.2 states “[e]xcept as otherwise provided by 7 statute, a public employee is not liable for an injury resulting from his act or omission where 8 the act or omission was the result of the exercise of the discretion vested in him, whether or not 9 such discretion be abused.” 10 However, “almost all acts involve some choice among alternatives, and the statutory 11 immunity thus cannot depend upon a literal or semantic parsing of the word discretion.” 12 Caldwell v. Montoya, 10 Cal. 4th 972, 981, 897 P.2d 1320 (1995) (internal quotation and 13 citation omitted). 14 immune discretionary acts draws the line between planning and operational functions of 15 government. Immunity is reserved for those basic policy decisions [which have] ... been 16 [expressly] committed to coordinate branches of government, and as to which judicial 17 interference would thus be unseemly. Such areas of quasi-legislative policy-making ... are 18 sufficiently sensitive to call for judicial abstention from interference that might even in the first 19 instance affect the coordinate body's decision-making process. On the other hand… there is no 20 basis for immunizing lower-level, or ministerial, decisions that merely implement a basic 21 policy already formulated. Moreover… immunity applies only to deliberate and considered 22 policy decisions, in which a [conscious] balancing [of] risks and advantages ... took place. The 23 fact that an employee normally engages in discretionary activity is irrelevant if, in a given case, 24 the employee did not render a considered decision.” Id. (internal quotations and citations 25 omitted) (alterations in original). According to the California Supreme Court, “a workable definition of 26 27 28 1 Plaintiff does state that Defendant is not entitled to immunity because he acted completely outside the scope of his authority (ECF No. 29, p. 5), but based on the cases Plaintiff cites, it appears that he was responding to Defendant’s claim of qualified immunity, not Defendant’s claim of immunity under California Government Code section 820.2. 9 1 ii. Analysis 2 It does not appear that Defendant has qualified immunity under this statute. While 3 Defendant has argued that “[a]ssuming Defendant Smith had the discretion to secure Plaintiff 4 in a holding cell for twenty-one hours, he is immune from Plaintiff’s state law negligence claim 5 because the alleged acts or omissions on which it is based were discretionary,” this type of 6 discretion does not fall within the statute, under the interpretation of the California Supreme 7 Court as cited above. There is no evidence, or even allegations, that Defendant’s decision 8 (assuming it was Defendant’s decision) to keep Plaintiff in the above-described situation was a 9 quasi-legislative policy-making decision. Instead, at most it appears to be a ministerial 10 decision implementing basic policy that was already formulated. Therefore, at this stage in the 11 case, the Court is not willing to find that Defendant has qualified immunity under California 12 Government Code section 820.2. 13 V. CONCLUSION AND RECOMMENDATIONS 14 The Court recommends finding that Plaintiff’s Second Amended Complaint states a 15 cognizable claim under the Eighth Amendment as well as a cognizable state law claim for 16 common law negligence. The Court also finds that at this stage in the case Defendant is not 17 entitled to qualified immunity or immunity under California Government Code section 820.2. 18 19 Accordingly, based on the foregoing, IT IS HEREBY RECOMMENDED that Defendant’s Rule 12(b)(6) motion to dismiss be DENIED.2 20 These Findings and Recommendations will be submitted to the United States District 21 Court Judge assigned to this action pursuant to the provisions of 28 U.S.C. § 636 (b)(1). 22 Within thirty (30) days after being served with a copy of these Findings and 23 Recommendations, any party may file written objections with the court and serve a copy on all 24 parties. Such a document should be captioned “Objections to Magistrate Judge’s Findings and 25 Recommendations.” Any reply to the objections shall be served and filed within ten (10) days 26 27 28 2 The Court notes that on November 22, 2016, Defendant filed a motion for reconsideration by the district court of the magistrate judge’s order denying Defendant’s Rule 12(b)(6) motion to dismiss. (ECF No. 32). Because the order subject to the motion for reconsideration was vacated on November 23, 2016 (ECF No. 34), the Court also recommends that Defendant’s motion for reconsideration be denied as moot. 10 1 after service of the objections. The parties are advised that failure to file objections within the 2 specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 3 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 4 5 6 IT IS SO ORDERED. Dated: November 28, 2016 /s/ UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11
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