(PC) Rodriguez v. Brown, et al., No. 1:2015cv01754 - Document 27 (E.D. Cal. 2016)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Erica P. Grosjean on 11/1/2016 recommending that 19 Motion to Dismiss State Law Claims be granted without prejudice. Referred to Judge Lawrence J. O'Neill; Objections to F&R due by 11/28/2016. (Lundstrom, T)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOSEPH D. RODRIGUEZ, 12 Plaintiff, 13 14 vs. EDMUND G. BROWN, JR., et al., 15 Defendants. 16 FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANT’S MOTIONS TO DISMISS STATE LAW CLAIMS BE GRANTED, WITHOUT PREJUDICE (ECF No. 19.) OBJECTIONS, IF ANY, DUE WITHIN TWENTY (20) DAYS 17 18 1:15-cv-01754-LJO-EPG-PC I. BACKGROUND 19 Joseph D. Rodriguez (“Plaintiff”) is a state prisoner proceeding pro se and in forma 20 pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the 21 complaint initiating this action against three defendants on November 19, 2015. (ECF No. 1.) 22 Plaintiff is presently incarcerated in the custody of the California Department of Corrections 23 and Rehabilitation (CDCR) at the California Substance Abuse Treatment Facility (SATF) in 24 Corcoran, California, where the events at issue in the Complaint allegedly occurred. 25 Plaintiff alleges that SATF was constructed approximately twenty years ago and has not 26 undergone any significant modification or repair since then. Since January 2014, Plaintiff has 27 been housed on E-Yard at SATF, a level 3 Special Needs Yard reserved for inmates who, 28 because of their lack of disciplinary problems, qualify to be housed at an Enhanced Program 1 1 Facility. 2 Plaintiff’s building, are utilized as E-Yard housing units, each designed for a capacity of 100 3 inmates. E-Yard is currently operating at approximately 195% of capacity, although this 4 number, the actual rate of capacity, has never been reported to the Federal three-judge panel 5 overseeing issues of overcrowding of California prisons. 6 7 There are five housing buildings on E-Yard. Four of the buildings, including In addition to the four housing units, E-Yard also contains a separate kitchen and dining facility, which are subject to California’s health and sanitation standards. 8 Defendants have failed and refused, and continue to fail and refuse, to maintain SATF 9 in conformity with the laws of the state and federal constitutions. Although Defendants have 10 known about the deteriorating physical plant at SATF for many years, they have refused to 11 remedy the substantial substandard living conditions at SATF. 12 Neglect of the physical plant is evident by visual inspection. All of the roofs leak. 13 During the rainy season, there is continual flooding in the dining facility, visiting facility, 14 educational facility, housing unit common areas, and the cells themselves. Inmates often 15 awaken to the sound of rain actually coming into the cells. Many of the ceiling tiles in the 16 dining facility are missing as a result of Defendants’ neglect. 17 As a result of Defendants’ deliberate indifference to the health and safety of inmates, 18 including Plaintiff, the E-Yard dining facility has been infested with cockroaches and rats for 19 many years, in violation of California’s health codes. The rat infestation is so severe that every 20 morning the kitchen staff must clean rat feces from the griddle and other cooking surfaces 21 before preparing inmate meals on those same surfaces. 22 Defendants have been aware for years that the E-Yard dining facility is infested with 23 vermin. There have been numerous complaints by staff and inmates over the years, all which 24 have been ignored. On November 19, 2014, at a meeting with D. Perkins, Correctional Food 25 Manager responsible for the E-Yard dining facility, inmate representatives voiced concerns. 26 Numerous complaints had been received regarding “debris, cockroaches and screws falling out 27 of the ceiling onto inmates’ trays during the evening meal,” and the inmate representatives 28 reported an “increase in pest infestation in the Facility E Dining Room.” (Plaintiff here refers 2 1 to a copy of minutes of the meeting attached to Complaint as Exhibit A.) The vermin problem 2 was also directly brought to defendant Sherman’s attention at the Warden’s Meeting on January 3 27, 2015. (Copy of minutes attached as Exhibit B.) At another meeting on October 6, 2015 4 between inmate representatives and the E-Yard Correctional Food Manager, the Manager 5 acknowledged that the issue had been previously discussed, and stated that the reason cold 6 cereal could not be stored at the facility was because of the continuing cockroach infestation. 7 (Copy of minutes attached as Exhibit C.) 8 On January 8, 2015, while eating his breakfast in the E-Yard dining facility, Plaintiff 9 discovered a live cockroach crawling on his food. Plaintiff was alarmed and reported the 10 incident immediately to the correctional officer (C/O) monitoring the morning meal. C/O 11 Pelayo advised Plaintiff to “get another tray.” (Copy of C/O Pelayo’s acknowledgment of the 12 incident attached as Exhibit D.) 13 On January 13, 2015, Plaintiff was again served a large cockroach crawling on his 14 breakfast food. Plaintiff immediately reported the incident to C/O Paz who was monitoring the 15 meal. (Copy of C/O Paz’s acknowledgment of the incident attached as Exhibit E.) 16 Plaintiff is sickened by the unsanitary conditions in which his food is prepared, handled, 17 and served. Plaintiff has been unable to consume any of the food served at the E-Yard dining 18 facility since being served a live cockroach on January 13, 2015. Plaintiff sought medical 19 attention for persistent and severe abdominal pain and cramps that resulted from the unsanitary 20 conditions. Plaintiff was also required to seek psychological and psychiatric care for severe 21 shock and anxiety. Plaintiff filed and exhausted his remedies via a form 602 administrative 22 appeal complaining about the conditions. (Copy of 602 appeal attached as Exhibit F.) Plaintiff 23 has suffered and will continue to suffer injuries in the form of pain and suffering, shame, 24 humiliation, degradation, extreme anxiety, emotional distress, and mental distress. 25 Plaintiff requests monetary damages, temporary restraining orders, declaratory and 26 injunctive relief, costs of suit and attorney’s fees. 27 \\\ 28 \\\ 3 1 A. Initial Screening 2 The Court screened the complaint pursuant to its authority in 28 U.S.C. § 1915A on 3 December 8, 2015, and found that the complaint stated a cognizable federal claim against 4 Defendant Sherman for adverse conditions of confinement in violation of the Eighth 5 Amendment. (ECF No. 6.) In the screening order, the Court also found that Plaintiff failed to 6 state a cognizable claim against the two other defendants listed in Plaintiff’s complaint, and 7 that it was appropriate to exercise supplemental jurisdiction under 28 U.S.C. § 1367 for 8 Plaintiff’s state law claims for violation of the California health codes and constitution. (Id.) 9 The findings and recommendations in the screening order were adopted on May 9, 2016. (ECF 10 No. 16.) The case now proceeds against Stuart Sherman (Warden of the SATF) (“Defendant”), 11 for unconstitutional adverse conditions of confinement under 42 U.S.C. § 1983 and for related 12 state claims. Specifically, Plaintiff alleges violations of a California state law, Cal. Health & 13 Safety Code § 114259.1, providing that food facilities in the state must be kept free of vermin. 14 The screening order did not rule upon the viability of the state law claim. (ECF No. 6, pp. 8-9.) 15 B. Defendant’s Motion to Dismiss State Law Claims 16 On June 28, 2016, Defendant filed a motion to dismiss Plaintiff’s state law claims 17 pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim 18 upon which relief can be granted. (ECF No. 19.) On July 11, Plaintiff filed an opposition to 19 the motion. (ECF No. 21.) Defendant then filed a reply in support of the motion on July 18. 20 (ECF No. 22.) 21 II. DISCUSSION 22 Defendant’s motion to dismiss challenges only the sufficiency of the state law claims 23 found in the initial screening order. A complaint may survive a motion to dismiss only if, 24 taking all well-pleaded factual allegations as true, it contains enough facts to state a claim to 25 relief that is plausible on its face. Hebbe v. Pliler, 627 F.3d 338, 341–42 (9th Cir. 2010) (citing 26 Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009); Bell Atl. Corp. 27 v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal quotations 28 omitted). The Court is required to construe pleadings by pro se plaintiffs, particularly in civil 4 1 rights cases, liberally and to afford the petitioner the benefit of any doubt. Id. (citing Bretz v. 2 Kelman, 773 F.2d 1026, 1027 n. 1 (9th Cir.1985) (en banc)). 3 A. California Tort Claims Act 4 As a starting point, Defendant argues that all of Plaintiff’s state law claims must be 5 dismissed because Plaintiff did not plead the claim presentation requirement contained in 6 California Government Code § 900 et seq. In order to bring a lawsuit against for damages as 7 part of the California Tort Claims Act establishes certain conditions precedent to the filing of a 8 lawsuit against a public entity. State v. Superior Court (Bodde), 32 Cal. 4th 1234, 1237, 90 9 P.3d 116, 118 (2004). “[A] plaintiff must timely file a claim for money or damages with the 10 public entity, (§ 911.2.), and the failure to do so bars the plaintiff from bringing suit against that 11 entity, (§ 945.4.).” Id. Compliance with the claim presentation requirement is an element of the 12 cause of action, Bodde, 32 Cal.4th at 1240, 13 Cal.Rptr.3d 534, 90 P.3d 116, is required, 13 Mangold v. California Public Utilities Com'n, 67 F.3d 1470, 1477 (9th Cir. 1995), and “failure 14 to file a claim is fatal to a cause of action,” Hacienda La Puente Unified School Dist. Of Los 15 Angeles v. Honig, 976 F.2d 487, 495 (9th Cir. 1992); City of Stockton, 42 Cal.4th at 738. 16 Here, Plaintiff failed to plead compliance with the claim presentation requirement of the 17 California Tort Claims Act. (ECF No. 1.) In response to the motion to dismiss, Plaintiff 18 concedes that he did not comply with the requirement. (ECF No. 21.) Dismissal is thus 19 appropriate as to Plaintiff’s state law claim for violation of Cal. Health & Safety Code § 20 114259.1. 21 Plaintiff states that any dismissal should be without prejudice because the defect can be 22 cured. (Id.) Whether dismissal is with or without prejudice will depend upon whether it is 23 possible for Plaintiff to cure any defects. See Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 24 1107–08 (9th Cir. 2003) (collecting cases). 25 B. Private Right of Action 26 Secondarily, Defendant argues that Cal. Health & Safety Code § 114259.1 does not 27 contain a private right of action. In his complaint, Plaintiff’s factual allegations contain the 28 following: 5 1 As a result of Defendants’ deliberate indifference to the health and safety of inmates, including Plaintiff, the E-Yard dining facility has been for many years, and continues to be to this day, infested with cockroaches and rates in violation of California Health and Safety Code § 11425.1. The rate infestation is so severe that every morning the kitchen staff must clean rat feces from the griddle and other cooking surfaces before preparing inmate meals on those surfaces. 2 3 4 5 6 (ECF No. 1, p. 7 ¶ 13.) In continuing to describe how the unsanitary conditions of the prison 7 fail to minimum sanitation standards, Plaintiff mentions the California Retail Food Code in 8 three more paragraphs.1 (Id. ¶¶ 19, 21-22.) Thus, Plaintiff’s state law claim is brought 9 pursuant to California Health and Safety Code § 114259.1, the complete text of which provides 10 only that “[t]he premises of each food facility shall be kept free of vermin.”2 Cal. Health & 11 Safety Code § 114259.1 (West 2015). 12 Defendant argues that § 114259.1 does not contain a private right of action because the 13 California Health & Safety Code provides that primary enforcement responsibility of § 14 114259.1 rests primarily with the local enforcement agency and secondarily with the State 15 Department of Public Health.3 See Cal. Health & Safety Code § 113713 (West 2015). “A 16 statute creates a private right of action only if the enacting body so intended.” Farmers Ins. 17 Exch. v. Superior Court, 137 Cal. App. 4th 842, 849–50, 40 Cal. Rptr. 3d 653, 657 (2006) 18 (citing Moradi–Shalal v. Fireman's Fund Ins. Companies (1988) 46 Cal.3d 287, 305, 250 19 Cal.Rptr. 116, 758 P.2d 58; Crusader Ins. Co. v. Scottsdale Ins. Co. (1997) 54 Cal.App.4th 20 121, 131, 62 Cal.Rptr.2d 620.)). Plaintiff responds to this argument by citing to Cal. Gov’t Code § 815.6, which provides 21 22 23 24 25 26 27 28 that: 1 It is unclear whether Plaintiff intended to bring a state law claim or whether he merely cited to the California Health and Safety Code to provide context to his constitutional claims brought under 42 U.S.C. § 1983. Consistent with its duty to liberally construe allegations in pro se petitions, Hebbe, 627 F.3d at 341–42, the Court found a state law claim and exercised supplemental jurisdiction under 28 U.S.C. § 1367. (ECF No. 6, pp. 8-9). 2 Plaintiff does not dispute that an alleged violation of § 114259.1 is the state law claim at issue here. (ECF No. 21.) 3 Defendant did not present an argument that a prison is not a “food facility,” as defined by Cal. Health & Safety Code § 113789, and therefore, that argument is not considered. 6 1 2 3 4 5 6 7 Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty. Cal. Gov't Code § 815.6 (West 2015). According to Plaintiff, § 114259.1 contains a mandatory duty, and he was injured by SATF’s failure to keep the facility free of vermin. Thus, Plaintiff argues that § 815.6 gives him a private right of action. 8 Defendant replies to this argument by asserting that he is not a “public entity” for 9 purposes of § 815.6.4 A “Public entity” is defined to include “the state, the Regents of the 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 University of California, the Trustees of the California State University and the California State University, a county, city, district, public authority, public agency, and any other political subdivision or public corporation in the State.” Cal. Gov't Code § 811.2 (West 2015). Defendant is certainly correct that he is not a public entity in his personal capacity. However, Defendant has been sued both in his personal capacity and his official capacity as Warden of the SATF, a California state prison. (ECF No. 1.) Under Ex parte Young, “a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office.” Miranda B. v. Kitzhaber, 328 F.3d 1181, 1187 (9th Cir. 2003) (citing Will v. Mich. Dep't of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989)). A state official sued in his official capacity has been found to be a public entity in other contexts. See, e.g., Miranda B., 328 F.3d at 1187–88 (holding that a public official sued in his official capacity is “public entity” under Title II of the Americans with Disabilities Act in an action seeking injunctive relief). In such cases, however, monetary damages are generally unavailable to a Plaintiff. See id. The Court cannot conclude, under the arguments presented here, that it would be impossible for Plaintiff to reassert his state law claim. While relief in the form monetary damages is unavailable here, it could be available in a separate state court action if Plaintiff can 27 28 4 Defendant did not present an argument that the duty imposed by § 114259.1 is not mandatory, and therefore, that argument is not considered. 7 1 properly allege compliance with the presentation requirement of the California Tort Claims 2 Act. Accordingly, it is more appropriate that Plaintiff’s be dismissed without prejudice. 3 III. CONCLUSION AND RECOMMENDATIONS 4 Based on the foregoing, IT IS HEREBY RECOMMENDED that Defendant’s be 5 GRANTED and that Plaintiff’s state law claims be DISMISSED without prejudice. If the 6 recommendation is adopted, this case will proceed only on Plaintiff’s claim against defendant 7 Sherman for unconstitutional conditions of confinement in violation of the Eighth Amendment. 8 These findings and recommendations are submitted to the United States District Judge 9 assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within twenty 10 (20) days after being served with these findings and recommendations, the parties may file 11 written objections with the Court. Such a document should be captioned “Objections to 12 Magistrate Judge’s Findings and Recommendations.” Any reply to the objections shall be 13 served and filed within ten days after service of the objections. The parties are advised that 14 failure to file objections within the specified time may result in the waiver of rights on appeal. 15 Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 16 1391, 1394 (9th Cir. 1991)). 17 18 19 IT IS SO ORDERED. Dated: November 1, 2016 /s/ UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 8
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