(PC) Ivory v. State of California et al, No. 1:2017cv01458 - Document 19 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS to Dismiss for Failure/Inability to State a Claim re 18 ; Clerk to Assign a District Judge, signed by Magistrate Judge Jennifer L. Thurston on 11/21/18. This case has been assigned to Chief Judge Lawrence J. O'Neill and Magistrate Judge Jennifer L. Thurston. The New Case No. is: 1:17-cv-01458-LJO-JLT. referred to Judge O'Neill. Objections to F&R Due Within Twenty-One Days. (Gonzalez, R)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 NORMAN IVORY, 12 Plaintiff, 13 14 v. STATE OF CALIFORNIA, et al., 15 Defendants. 16 Case No. 1:17-cv-01458-JLT (PC) FINDINGS AND RECOMMENDATION TO DISMISS FOR FAILURE/INABILITY TO STATE A CLAIM (Doc. 18) 21-DAY DEADLINE CLERK TO ASSIGN A DISTRICT JUDGE 17 18 I. Findings 19 A. Procedural History 20 Plaintiff brings this action alleging that his incarceration at Wasco State Prison violated 21 his rights under the Eighth Amendment and the Equal Protection Clause due to his contracting 22 Valley Fever. The Court granted Plaintiff leave to file an amended complaint after the Court 23 determined his original complaint failed to state a cognizable claim. (Docs. 1, 14.) The First 24 Amended Complaint is now before the Court for screening. (Doc. 18.) However, this action 25 should be DISMISSED because, despite receiving the applicable standards, Plaintiff continues to 26 fail to state any cognizable claims. 27 B. Screening Requirement and Standard 28 The Court is required to screen complaints brought by prisoners seeking relief against a 1 1 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 2 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 3 frivolous, malicious, fail to state a claim upon which relief may be granted, or that seek monetary 4 relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2); 28 U.S.C. 5 § 1915(e)(2)(B)(i)-(iii). If an action is dismissed on one of these three bases, a strike is imposed 6 per 28 U.S.C. § 1915(g). An inmate who has had three or more prior actions or appeals dismissed 7 as frivolous, malicious, or for failure to state a claim upon which relief may be granted, and has 8 not alleged imminent danger of serious physical injury does not qualify to proceed in forma 9 pauperis. See 28 U.S.C. § 1915(g); Richey v. Dahne, 807 F.3d 1201, 1208 (9th Cir. 2015). 10 Section 1983 “provides a cause of action for the deprivation of any rights, privileges, or 11 immunities secured by the Constitution and laws of the United States.” Wilder v. Virginia Hosp. 12 Ass’n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source 13 of substantive rights, but merely provides a method for vindicating federal rights conferred 14 elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989). 15 To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a 16 right secured by the Constitution or laws of the United States was violated and (2) that the alleged 17 violation was committed by a person acting under the color of state law. See West v. Atkins, 487 18 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987). A 19 complaint will be dismissed if it lacks a cognizable legal theory or fails to allege sufficient facts 20 under a cognizable legal theory. See Balistreri v. Pacifica Police Department, 901 F.2d 696, 699 21 (9th Cir. 1990). “Notwithstanding any filing fee, or any portion thereof, that may have been paid, 22 the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . 23 fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 24 25 26 C. Pleading Requirements 1. Federal Rule of Civil Procedure 8(a) The First Amended Complaint is considered in light of Rule 8(a)’s simplified pleading 27 standard which “applies to all civil actions, with limited exceptions,” none of which apply here. 28 Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002); Fed. R. Civ. Pro. 8(a). A complaint 2 1 must contain “a short and plain statement of the claim showing that the pleader is entitled to relief 2 . . . .” Fed. R. Civ. Pro. 8(a). “Such a statement must simply give the defendant fair notice of 3 what the plaintiff's claim is and the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512. 4 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a 5 cause of action, supported by mere conclusory statements,” as Plaintiff found in the First 6 Amended complaint, “do not suffice.” Iqbal, 556 U.S. at 678, quoting Bell Atlantic Corp. v. 7 Twombly, 550 U.S. 544, 555 (2007). For the reasons discussed below, Plaintiff fails to set forth 8 “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’” Iqbal, 9 556 U.S. at 678, quoting Twombly, 550 U.S. at 555. Plaintiff’s factual allegations are accepted as 10 true, but legal conclusions which the First Amended Complaint is comprised of, are not. Iqbal, 11 556 U.S. at 678; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009); 12 Twombly, 550 U.S. at 556-557. 13 While “plaintiffs [now] face a higher burden of pleadings facts . . . ,” Al-Kidd v. Ashcroft, 14 580 F.3d 949, 977 (9th Cir. 2009), the pleadings of pro se prisoners are still construed liberally 15 and are afforded the benefit of any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). 16 However, Plaintiff is no longer incarcerated and “the liberal pleading standard . . . applies only to 17 a plaintiff's factual allegations,” Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989), “a liberal 18 interpretation of a civil rights complaint may not supply essential elements of the claim that were 19 not initially pled,” Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) 20 quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982), and courts are not required to 21 indulge unwarranted inferences, Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) 22 (internal quotation marks and citation omitted). Plaintiff’s allegations are not sufficient as they 23 amount to nothing more than the “sheer possibility that a defendant has acted unlawfully,” such 24 allegations “that are ‘merely consistent with’ a defendant’s liability” fall short of satisfying the 25 plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969. 26 27 28 2. Linkage and Causation Section 1983 provides a cause of action for the violation of Plaintiff’s constitutional or other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 3 1 1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); 2 Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). “Section 1983 is not itself a source of 3 substantive rights, but merely provides a method for vindicating federal rights elsewhere 4 conferred.” Crowley v. Nevada ex rel. Nevada Sec’y of State, 678 F.3d 730, 734 (9th Cir. 2012) 5 (citing Graham v. Connor, 490 U.S. 386, 393-94 (1989)) (internal quotation marks omitted). To 6 state a claim, Plaintiff must allege facts demonstrating the existence of a link, or causal 7 connection, between each defendant’s actions or omissions and a violation of his federal rights. 8 Lemire v. California Dep’t of Corr. and Rehab., 726 F.3d 1062, 1074-75 (9th Cir. 2013); Starr v. 9 Baca, 652 F.3d 1202, 1205-08 (9th Cir. 2011). As discussed below Plaintiff’s allegations fail to 10 demonstrate that each defendant personally participated in and caused a violation of his 11 constitutional rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). DISCUSSION 12 Plaintiff’s Allegations 13 A. 14 Plaintiff is no longer in custody, but his allegations are based on the circumstances of his 15 confinement at Wasco State Prison (“WSP”) in 2014 and 2015. Plaintiff names the WSP 16 Warden, a WSP Captain, the Federal Receiver Clark Kelso, and the CDCR as the defendants in 17 this action and seeks monetary damages. The only substantive differences between Plaintiff’s 18 original Complaint and First Amended Complaint are that he dropped any claims under the Equal 19 Protection Clause and he added a WSP Captain and the Federal Receiver and deleted WSP, the 20 Director of Corrections, and the State of California as Defendants. 21 Plaintiff continues to allege that when he was housed at WSP, he contracted Valley Fever. 22 Plaintiff alleges that, as an African American, he is ten times more susceptible to contracting 23 Valley Fever and that the Defendants were “aware” of this statistic at least three years before he 24 arrived at WSP based on memorandums that were circulated and the Departmental Operations 25 Manual. Plaintiff alleges the WSP Warden and a WSP Captain knew that abatement measures 26 were recommended to lower the risk of contracting Valley Fever, but failed to take any such 27 measures and required inmates to attend yard where inmates were required to prone-out when 28 alarms sounded, which occurred daily. 4 1 As discussed in detail below, Plaintiff fails to state any cognizable claims. Since Plaintiff 2 was previously provided the applicable pleading and legal standards for his claims further 3 amendment would be futile and need not be granted. 4 5 6 B. Immunities 1. The CDCR Plaintiff persists in naming the CDCR as a Defendant in this action. The Court previously 7 informed Plaintiff that he may not sustain an action against the state because the Eleventh 8 Amendment bars suits against state agencies. See Natural Resources Defense Council v. 9 California Dep’t of Tranp., 96 F.3d 420, 421 (9th Cir. 1996); Brooks v. Sulphur Springs Valley 10 Elec. Co., 951 F.2d 1050, 1053 (9th Cir. 1991); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 11 1989) (concluding that Nevada Department of Prisons was a state agency entitled to Eleventh 12 Amendment immunity); Mitchell v. Los Angeles Community College Dist., 861 F.2d 198, 201 13 (9th Cir. 1989). “Though its language might suggest otherwise, the Eleventh Amendment has 14 long been construed to extend to suits brought against a state by its own citizens, as well as by 15 citizens of other states.” Brooks, 951 F.2d at 1053 (citations omitted). “The Eleventh 16 Amendment’s jurisdictional bar covers suits naming state agencies and departments as 17 defendants, and applies whether the relief is legal or equitable in nature.” Id. (citation omitted). 18 As stated in the First Screening Order, the CDCR is immune to Plaintiff’s claims under the 19 Eleventh Amendment. 20 21 2. The Federal Receiver Plaintiff added Clark Kelso, the Federal Receiver, as a defendant in the First Amended 22 Complaint. Kelso is the Receiver for CDCR’s health care system. See Plata v. Schwarzenegger, 23 et al., C01-1351-TEH (N.D. Cal. Jan. 23, 2008). Upon his appointment in 2008, “[t]he Receiver 24 and his staff [were granted] the status of officers and agents of [the Plata Court], and as such 25 [were] vested with the same immunities as vest with [the Plata] Court.” Id. Those judicial 26 immunities extend to immunity from suit. See Pierson v. Ray, 286 U.S. 547, 553-54 (1967) 27 (“Few doctrines were more solidly established at common law than the immunity of judges from 28 liability for damages for acts committed within their judicial jurisdiction ....”); see also Coleman 5 1 v. Schwarzenegger, 2007 WL 4276554 (E.D. Cal. Nov.29, 2007) (holding that a receiver who was 2 “imbued with the power and authority to act in the name of the Court as the Court's officer” and 3 who “acts as a ‘surrogate’ of the court” had quasi-judicial immunity). “[J]udicial immunity is not 4 overcome by allegations of bad faith or malice, the existence of which ordinarily cannot be 5 resolved without engaging in discovery and eventual trial.” Mireles v. Waco, 502 U.S. 9, 11 6 (1991). There are two primary exceptions to the absolute judicial immunity: first, where the 7 judge’s action is “not taken in the judge’s judicial capacity”; and second, where the judge’s 8 action, “though judicial in nature, is taken in the complete absence of all jurisdiction.” See id. at 9 11-12. Plaintiff acknowledges that, as the federally appointed Receiver, Kelso is “the head over 10 11 the CDCR Medical Health” based on failures in CDCR’s health care system to deliver timely and 12 appropriate treatment to inmates. (Doc. 18 at p. 7.) Plaintiff claims that Kelso has acted in some 13 undescribed manner which denied him proper preventative measures that would have prevented 14 his contraction of Valley Fever. Plaintiff, thus seemingly asserts that Kelso failed to act properly 15 in his role as Receiver. There is no allegation that Kelso acted “in the complete absence of all 16 jurisdiction.” Based thereon, the Court finds that Kelso is entitled to quasi-judicial immunity and 17 suit may not be maintained against him.1 18 C. Eighth Amendment -- Deliberate Indifference 19 In the context of conditions of confinement, prison officials violate the Eighth 20 Amendment if they are “deliberate[ly] indifferen[t] to [a prisoner’s] serious medical needs.” 21 Peralta v. Dillard, 744 F.3d 1076, 1081 (9th Cir. 2014) citing Estelle v. Gamble, 429 U.S. 97, 22 104 (1976). This standard contains both an objective and subjective element. See Helling v. 23 McKinney, 509 U.S. 25, 35-36 (1993) (discussing objective and subjective elements of Eighth 24 Amendment Claim). In the context of exposure to disease, the objective element asks whether 25 prison officials have exposed the prisoner to a serious medical risk of disease. To determine 26 27 28 1 To the extent Plaintiff attempts to amend his complaint to allege that Kelso was aware of plaintiff's medical needs and failed to act upon that knowledge, the Court finds that those allegations would similarly entitle Kelso to absolute quasi-judicial immunity because plaintiff would again be alleging that Kelso failed to act within his capacity as the Receiver of CDCR’s health care system. 6 1 whether the risk to which Plaintiff is exposed is serious, the court considers whether the “risk the 2 prisoner complains of [is] so grave that it violates contemporary standards of decency to expose 3 anyone unwillingly to such a risk. In other words, the prisoner must show that the risk of which 4 he complaints is not one that today’s society chooses to tolerate.” Id. at 36 (italics in original). The subjective element of an Eighth Amendment violation asks whether the prison official 5 6 acted with “deliberate indifference” in denying medical care or exposing the prisoner to the risk 7 of disease. For conduct to qualify as “deliberately indifferent” in the context of conditions of 8 confinement, the conduct must be shown to be “wanton.” “[T]he constraints facing the official” 9 must be considered when determining whether conduct is wanton. Wilson v. Seiter, 501 U.S. 294, 10 303 (1991). A depravation of a treatment or the exposure to a hazard may be wanton only if it 11 was within the official’s ability at the time to avoid the exposure to risk or deprivation of care. 12 “Wantonness consist[s] of ‘acting sadistically and maliciously for the purpose of causing harm.’” 13 Id., quoting Whitley v. Albers, 475 U.S. 312, 321-322 (1986). 14 As to the objective component, Plaintiff alleges no facts to indicate that the risk of 15 exposure to the spores of Coccidioidies immitis spores at WSP was any higher than in the 16 surrounding community. It is worth noting that the attention of courts and official policymakers 17 regarding the risk of Valley Fever have focused on Pleasant Valley State Prison and Avenal State 18 Prison. These facilities have drawn particular state and district court attention because, although 19 eight California correctional facilities are located in the endemic area, these two facilities account 20 for 85% of the occurrence of reported cases of Valley Fever in California. See Plata v. Brown, 21 2013 WL 3200587 (N.D. Cal. 2013) at *2. However, an individual who lives out of custody 22 anywhere in the Southern San Joaquin Valley, also runs a relatively high risk of exposure to 23 Coccidioides immitis spores. Likewise, as noted by Dr. Jeffrey Gunzenhauser, Los Angeles 24 county’s interim health officer, the Antelope Valley, where Plaintiff has resided since February of 25 this year (see Doc. 13), has been included as an endemic area with high incident rates because it 26 has environmental conditions similar to the Central Valley which may encourage growth of cocci 27 spores. 28 Unless there is something about a prisoner’s conditions of confinement that raise the risk 7 1 of exposure substantially above the risk experienced by the surrounding community, it cannot be 2 said that the prisoner is forcibly and knowingly exposed to a risk the society would not tolerate to 3 meet the objective component of a claim under the Eight Amendment. See Hines v. Youssef, No. 4 1:13-cv-00357-AWI-JLT, 2015 WL 164215, at *4 (E.D. Cal. Jan. 13, 2015) (rejecting African- 5 American asthmatic prisoner’s Eighth Amendment claim arising from exposure to and 6 contraction of Valley Fever); accord Williams v. Biter, No. 1:14 cv 02076-AWI-GSA PC 2015 7 WL 1830770, at *3 (E.D. Cal. Apr. 9, 2015); contra Beagle v. Schwarzenegger, No. 1:14-cv-430- 8 LJO-SAB, 2014 U.S. Dist. LEXIS 107548 (E.D. Cal. Jul. 25, 2014). 9 Plaintiff also fails to state allegations to meet the subjective component of an Eighth 10 Amendment claim. Despite receiving the standards in the First Screening Order, Plaintiff has still 11 not shown (and in all likelihood is unable to do so) that any individual Defendants acted wantonly 12 in formulating the policies and procedures which resulted in Plaintiff’s placement at WSP. As 13 noted above, the State of California has eight of its correctional facilities -- and therefore a 14 substantial proportion of its inmate capacity -- located in the Southern San Joaquin Valley. If 15 Plaintiff’s allegations, (which are wholly, solely based on his placement at WSP) were 16 cognizable, the State of California would not be able to house any inmates at WSP, SATF, PVSP, 17 or ASP, and maybe not even at any of the eight facilities located in the endemic area. Further, to meet the initial pleading burden Plaintiff must state allegations showing “the 18 19 particular features of that institution that resulted in dangerous conditions, or the practices or 20 procedures within the CDSH-C that may have resulted in increased risk.” Smith v. State of 21 California, 2016 WL 398766, *2 (2016). “[T]he mere allegation that Plaintiff was confined in a 22 community that happens to be in an endemic area for Valley Fever is not sufficient to show that 23 he was, in fact, exposed to an increased risk or that the individuals responsible for his placement 24 or housing there would have known or had reason to know that Plaintiff was being exposed to a 25 heightened danger of disease.” Id. Thus, Plaintiff fails and appears unable to allege facts 26 sufficient to state a cognizable claim under the Eighth Amendment. 27 II. 28 CONCLUSION & RECOMMENDATION Plaintiff’s First Amended Complaint fails to state any cognizable claims. Given that the 8 1 First Amended Complaint suffers from defects similar to the original Complaint, it appears futile 2 to allow further amendment. Plaintiff should not be granted leave to amend as the defects in his 3 pleading are not capable of being cured through amendment. Akhtar v. Mesa, 698 F.3d 1202, 4 1212-13 (9th Cir. 2012). 5 6 7 Accordingly, the Court RECOMMENDS that this entire action be dismissed with prejudice. The Clerk of the Court is directed to assign a district judge to the action. These Findings and Recommendations will be submitted to the United States District 8 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within 21 9 days after being served with these Findings and Recommendations, Plaintiff may file written 10 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 11 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 12 specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 13 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 14 15 16 IT IS SO ORDERED. Dated: November 21, 2018 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 9