Porter v. Wegman et al

Filing 70

ORDER signed by District Judge Lawrence J. O'Neill on 7/18/2013 adopting 64 FINDINGS AND RECOMMENDATIONS and dismissing certain claims and defendants.(Lundstrom, T)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

BRIAN ELLIS PORTER,

12

Plaintiff,

13
14

v.
CHERYLEE WEGMAN, et al.,

15

Defendants.

16

)
)
)
)
)
)
)
)
)
)

Case No.: 1:10cv01500 LJO DLB (PC)
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND DISMISSING
CERTAIN CLAIMS AND DEFENDANTS
(Document 64)

Plaintiff Brian Ellis Porter (“Plaintiff”) is a state prisoner proceeding pro se and in forma

17
18

pauperis in this civil rights action. On September 25, 2012, this case was consolidated with Porter v.

19

Wegman, et al., Case No. 1:11-cv-02106-MJS (E.D. Cal.). On October 18, 2012, the Court ordered

20

Plaintiff to file a Third Amended Complaint, incorporating all the pleadings in both actions. On

21

December 17, 2012, Plaintiff filed his Third Amended Complaint (“TAC”).1 The matter was referred

22

to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On May 13, 2013, the Magistrate Judge issued Findings and Recommendations that certain

23
24

claims and Defendants be dismissed for failure to state a claim for which relief may be granted.

25

Specifically, the Court recommended that the action proceed against (1) Defendants Wegman, Castro,

26
27
28

1

The Court’s docket indicates that this document was labeled as the Second Amended Complaint. However, a previous
Second Amended Complaint was filed on September 4, 2012. To avoid confusion, the Court will refer to the Amended
Complaint filed on December 17, 2012, as Plaintiff’s Third Amended Complaint.

1

1

and Biter for violation of the Free Exercise Clause of the First Amendment, the Religious Land Use

2

and Institutionalized Persons Act of 2000 (“RLUIPA”), and the Equal Protection Clause of the

3

Fourteenth Amendment; and (2) Defendant Grewal for deliberate indifference to a serious medical

4

need in violation of the Eighth Amendment. The Court recommended that all other claims and

5

Defendants be dismissed.
The Findings and Recommendations were served on the parties and contained notice that any

6
7

objections were to be filed within fourteen (14) days. After receiving an extension of time, Plaintiff

8

filed objections on June 20, 2013. Defendant Wegman2 filed a reply on July 3, 2013.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a de

9
10

novo review of this case. Having carefully reviewed the entire file, including Plaintiff’s objections

11

and Defendant’s reply, the Court finds that the Findings and Recommendations are supported by the

12

record and proper analysis.

13

1.

Defendant Cate

14

The Magistrate Judge found that although Plaintiff attempted to establish liability against

15

CDCR Director Defendant Cate, he failed to allege facts to demonstrate supervisory liability. Plaintiff

16

alleged that Defendant Cate, as the final decision-maker for the Director’s Level, was responsible for

17

the acts complained of. However, a review of Plaintiff’s exhibits revealed that Defendant Cate did not

18

actually adjudicate any of Plaintiff’s inmate appeals, and Plaintiff was thus unable to show that he

19

either personally participated in the alleged deprivation, or knew of the issues and failed to prevent

20

them. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989)
In his objections, Plaintiff contends that Defendant Cate is liable based on California Code of

21
22

Regulations, Title 15, sections 3001 and 3084.7(d)(3), which hold the CDCR Secretary responsible for

23

rules and regulations governing CDCR and state that the third-level review constitutes the decision of

24

the Secretary. However, liability based on these regulations would be based solely on Defendant

25

Cate’s supervisory status, and such liability is improper in section 1983 actions. Ashcroft v. Iqbal, 556

26

U.S. 662, 676-77 (2009). Plaintiff’s citations to these regulations does not change the fact that

27
28

2

Currently, Defendant Wegman is the only Defendant for which service has been ordered.

2

1

Defendant Cate did not participate in the alleged deprivations, or know of the deprivations and fail to

2

prevent them.

3

Plaintiff’s contention that Defendant Cate had first-hand knowledge of the alleged deprivations

4

based on “several means of communication by Plaintiff, as well as other House of Yahweh inmates,

5

which includes appeals, formal and informal complaints, and letters,” also fails. Obj. 3. A review of

6

these exhibits, which Plaintiff attached to his objections, does not support a finding that Defendant

7

Cate knew of the issues and failed to prevent them. The documents were not addressed to Defendant

8

Cate, nor do they give any indication that Defendant Cate was aware of them. Although Plaintiff

9

states that he sent copies to Defendant Cate, this does not support a presumption of knowledge.

10

Pursuant to Iqbal, Plaintiff must affirmatively allege that Defendant Cate received the letter and knew

11

of its contents.

12
13

The Magistrate Judge’s findings regarding Defendant Cate are supported by the record and
correct legal analysis.

14

2.

Defendants Lunsford, Chief Medical Officer Lopez and Does 1-100

15

Plaintiff failed to allege any facts demonstrating that Defendants Lunsford, Lopez or Does 1-

16

100 knew of, and disregarded, a serious risk of harm to his health. The Magistrate Judge therefore

17

found that he failed to state an Eighth Amendment deliberate indifference claim against them.

18

In his objections, Plaintiff cites the paragraph in his TAC that alleges he “alerted both custody,

19

and medical staff to the fact that Plaintiff was not eating as KVSP was not providing his necessary

20

religious meals.” TAC ¶ 41. He further alleges that “only after Plaintiff’s physical appearance

21

showed signs of starvation did medical staff begin to tell Plaintiff that they would have Plaintiff called

22

to the clinic to see the physician that day…” TAC ¶ 42. After Plaintiff passed out, his cellmate

23

“alerted both custody, and medical staff that Plaintiff passed out.” TAC ¶ 43.

24

Such statements, however, do not demonstrate personal involvement on the part of Defendants

25

Lunsford, Lopez or Does 1-100. Plaintiff’s TAC contains no specific factual allegations against these

26

Defendants, and therefore the Magistrate Judge’s findings were supported by the record and correct

27

legal analysis.

28
3

1

3.

42 U.S.C. § 2000d

2

The Magistrate Judge found that Plaintiff had not alleged any discrimination on the basis of

3

race, color or national origin, and therefore could not state a claim under section 2000d. In his

4

objections, he cites Defendant Wegman’s reference to Plaintiff as “being a ‘Hebrew Israylite [sic]

5

from the House of Yahweh’” in her denial of Plaintiff’s Passover meal requests. Obj. 6. He states that

6

this involves both his religion (House of Yahweh) and race (“Hebrew Israylite”). While the Court

7

recognizes that in some circumstances, there may be an overlap between religion and race/national

8

origin, Plaintiff has not provided any authority to support his position that “Hebrew Israylite” is a race

9

for purposes of section 2000d.

10

4.

42 U.S.C. § 3789d(c)(1)

11

Finally, the Magistrate Judge concluded that Plaintiff could not state a claim under section

12

3789(c)(1) because he failed to allege that CDCR receives federal funding from the Office of Justice

13

Programs, and that he exhausted his administrative remedies.

14

In his objections, Plaintiff states that he alleged that CDCR receives “federal financial

15

funding,” as well as exhaustion, in the TAC. However, the cited paragraphs only allege that Plaintiff

16

exhausted his administrative remedies through the prison grievance system. TAC, ¶¶ 53-58. He

17

makes no allegation that he exhausted with the Office of Justice Programs or any other administrative

18

enforcement agency. Sims v. Montgomery Cnty. Comm’n, 873 F. Supp. 585, 608 (M.D. Ala.1994)

19

(citing 42 U.S.C. § 3789d(c)(4)(A)).

20
21

The Magistrate Judge’s analysis on this issue is supported by the record and correct legal
analysis.

22

Accordingly, IT IS HEREBY ORDERED that:

23

1.

The Findings and Recommendations, filed May 13, 2013, are ADOPTED in full;

24

2.

This action proceed against (A) Defendants Wegman, Castro, and Biter for violation of

25

the Free Exercise Clause of the First Amendment, RLUIPA and the Equal Protection

26

Clause of the Fourteenth Amendment; and (B) Defendant Grewal for deliberate

27

indifference to a serious medical need in violation of the Eighth Amendment; and

28
4

1

3.

All other claims and Defendants are dismissed for failure to state a claim upon which
relief may be granted.

2
3
4
5
6
7
8

IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill

July 18, 2013

UNITED STATES DISTRICT JUDGE
DEAC_Signature-END:

66h44d

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5