Stafford, et al. v. Kramer, et al.

Filing 15

FINDINGS and RECOMMENDATIONS, Recommending That This Case Be Dismissed, With Prejudice, for Failure to State a Claim 12 signed by Magistrate Judge Gary S. Austin on 3/24/17: 30-Day Deadline. (Hellings, J)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 WILLIAM STAFFORD, Plaintiff, 12 13 v. 14 NORM KRAMER, et al., 15 Defendants. 1:15-cv-00038-LJO-GSA-PC FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE BE DISMISSED, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM (ECF No. 12.) OBJECTIONS, IF ANY, DUE WITHIN 30 DAYS 16 17 I. BACKGROUND 18 William Stafford (“Plaintiff”) is a civil detainee proceeding pro se and in forma 19 pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. On January 8, 2015, 20 Plaintiff and a co-plaintiff, Lamar Johnson, filed the Complaint commencing this action. (ECF 21 No. 1.) On September 2, 2015, the court severed the plaintiffs’ claims and dismissed the 22 Complaint for failure to state a claim, with leave to amend. (ECF No. 9.) Plaintiff is now the 23 sole plaintiff in this case. 24 On September 28, 2015, Plaintiff filed the First Amended Complaint. (ECF No. 10.) 25 On June 24, 2016, the court dismissed the First Amended Complaint for failure to state a claim, 26 with leave to amend. (ECF No. 11.) 27 28 On July 28, 2016, Plaintiff filed the Second Amended Complaint, which is now before the court for screening. (ECF No. 12.) 1 1 II. SCREENING REQUIREMENT 2 The in forma pauperis statute provides that “the court shall dismiss the case at any time 3 if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief 4 may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). “Rule 8(a)’s simplified pleading standard 5 applies to all civil actions, with limited exceptions,” none of which applies to section 1983 6 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002); Fed. R. Civ. P. 8(a). A 7 complaint must contain “a short and plain statement of the claim showing that the pleader is 8 entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). “Such a statement must simply give the 9 defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” 10 Swierkiewicz, 534 U.S. at 512. Detailed factual allegations are not required, but “[t]hreadbare 11 recitals of the elements of a cause of action, supported by mere conclusory statements, do not 12 suffice,” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009) (citing Bell 13 Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)), and courts “are not 14 required to indulge unwarranted inferences,” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 15 (9th Cir. 2009) (internal quotation marks and citation omitted). While factual allegations are 16 accepted as true, legal conclusions are not. Iqbal, 556 U.S. at 678. However, “the liberal 17 pleading standard . . . applies only to a plaintiff’s factual allegations.” Neitze v. Williams, 490 18 U.S. 319, 330 n.9 (1989). “[A] liberal interpretation of a civil rights complaint may not supply 19 essential elements of the claim that were not initially pled.” Bruns v. Nat’l Credit Union 20 Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 21 268 (9th Cir. 1982)). 22 III. SUMMARY OF SECOND AMENDED COMPLAINT 23 Plaintiff is civilly detained under the Sexually Violent Predator Act at Coalinga State 24 Hospital (CSH) in Coalinga, California, in the custody of the California Department of State 25 Hospitals (CDSH), where the events at issue in the Second Amended Complaint allegedly 26 occurred. 27 (Executive Director of Hospital), Cliff Allenby (ex-Executive Director of CDSH), Stephen 28 /// Plaintiff names as defendants Pam Ahlin (Executive Director), Audrey King 2 1 Mayberg (ex-Executive Director of CDSH), Jerry Brown (Governor of California), and the 2 Fresno County Board of Supervisors 3 following allegations. 4 5 (collectively, “Defendants”). Plaintiff makes the Plaintiff, an African-American male, has resided at CSH since 2004. He is infected with the disease known as Valley Fever. 6 Defendant Pam Ahlin is and was the Executive Director of CSH, and she is now the 7 Executive Director of CDSH. At all times relevant to Plaintiff’s complaint, defendant Ahlin 8 was in the seat of authority in Sacramento. 9 Defendant Audrey King is the Executive Director of CSH, and she was the Director 10 when Plaintiff contracted Valley Fever. Under her administration, there have never been any 11 measures taken to protect Blacks. 12 Defendant Cliff Allenby is and was the Executive Director of CDSH, headquartered in 13 Sacramento. 14 Sacramento. He cannot assert that he was unaware of the hazardous nature of Valley Fever in 15 the soil, because the risk factors can be found in the Infection Control Manual No. 3.5. At all times relevant to the Complaint, he was in the seat of authority in 16 Defendant Stephen Mayberg is and was the Executive Director of CDSH. There have 17 been no medical or safety steps taken to protect Plaintiff from contracting Valley Fever. There 18 is scientific and medical information in the Infection Control Manual No. 3.5. Mayberg 19 deliberately overlooked the warning signs of the lethal disease in the soil. 20 Defendant Jerry Brown is the Governor of California, with the authority to recommend 21 changes to a facility if there is a threat to those individuals involuntarily held there. He knew 22 of the dangerous nature of Valley Fever spores in the soil where CSH was built, from 23 information from Pleasant Valley State Prison. He deliberately ignored the conditions at CSH 24 because the individuals there were civil detainees and not prisoners. 25 Defendant Fresno County Board of Supervisors (the Board) is a branch of government 26 with authority to approve building or excavation of land in Fresno County. 27 managed all the property used for the construction and operation of CSH. The Board was 28 aware of the lethal threat of Valley Fever because of scientific research brought to the Board’s 3 The Board 1 attention. The Board failed to institute necessary precautions at the facility to protect the most 2 vulnerable detainees, i.e., African Americans, Asians, Filipinos, elderly, etc. 3 Defendants arranged for Plaintiff to be sent to CSH. Plaintiff claims that he has been 4 deprived of any adequate protective medical health services within California guidelines. 5 Plaintiff suffers from a permanent crippling physical injury because of his infection with the 6 Valley Fever disease. 7 Plaintiff holds Defendants responsible for placing him in danger of exposure to Valley 8 Fever, with intent to harm. Plaintiff alleges that Defendants had direct and specific scientific 9 and medical health knowledge of the dangers of Valley Fever, from studies done at nearby 10 Pleasant Valley State Prison. CSH’s policies, practice, and the acts of Defendants constitute 11 deliberate indifference to Plaintiff’s constitutional and statutory rights to be free of exposure to 12 Valley Fever and to be protected against windblown spores. Valley Fever is a serious threat to 13 the health of African-Americans. As a result of negligence in Defendants’ decision-making, 14 Plaintiff is held in an environment that has caused him to contract a permanent crippling 15 physical injury. Plaintiff is not responsible for his placement in the dangerous and threatening 16 environment that harbors Valley Fever spores. 17 Plaintiff requests monetary damages, declaratory relief, injunctive relief, costs of suit, 18 and attorney’s fees. 19 IV. PLAINTIFF’S CLAIMS 20 Section 1983 provides a cause of action for the violation of Plaintiff’s constitutional or 21 other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 22 1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 23 2006); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). 24 As a civil detainee, Plaintiff is entitled to treatment more considerate than that afforded 25 pretrial detainees or convicted criminals. Jones v. Blanas, 393 F.3d 918, 931-32 (9th Cir. 26 2004). Plaintiff’s right to constitutionally adequate conditions of confinement is protected by 27 the substantive component of the Due Process Clause. Youngberg v. Romeo, 457 U.S. 307, 28 315, 102 S.Ct. 2452 (1982). 4 1 A. 2 The court’s prior screening order for this case found that Plaintiff’s First Amended 3 Complaint failed to state a claim because Plaintiff’s allegations were largely speculative and he 4 failed to allege facts showing that any Defendant knew of a substantial risk of serious harm to 5 Plaintiff and failed to prevent it. Prior Screening Order 6 Plaintiff’s Second Amended Complaint suffers from the same deficiencies. Plaintiff 7 fails to describe any personal acts by Defendants showing that they knew Plaintiff was at risk 8 of serious harm and consciously disregarded the risk, causing Plaintiff harm. As in the First 9 Amended Complaint, Plaintiff speculates in the Second Amended Complaint that Defendants 10 knew about the risks of Valley Fever because of studies at Pleasant Valley State Prison and 11 information in an Infection Control Manual. Plaintiff again alleges that Defendants placed 12 Plaintiff at CSH knowing that he was at substantial risk of serious harm to his health, and failed 13 to put preventative measures in place to reduce the risk of disease at CSH. These conclusory 14 statements fail to state any claims against Defendants. Plaintiff has not set forth facts in the 15 Second Amended Complaint demonstrating that Defendants personally violated his rights. 16 B. 17 As explained above, section 1983 provides a cause of action for the violation of 18 Plaintiff’s constitutional or other federal rights by persons acting under color of state law. 19 Nurre, 580 F.3d at 1092; Long, 442 F.3d at 1185; Jones, 297 F.3d at 934. To state a claim, 20 Plaintiff must demonstrate that each defendant personally participated in the deprivation of his 21 rights. Iqbal, 556 U.S. at 676-77, 129 S.Ct. at 1949; Simmons v. Navajo County, Ariz., 609 22 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 23 2009); Jones, 297 F.3d at 934. Therefore, Plaintiff must link the named defendants to the 24 participation in the violation at issue. Linkage 25 Liability may not be imposed on supervisory personnel under the theory of respondeat 26 superior, Iqbal, 556 U.S. at 676-77; Simmons, 609 F.3d at 1020-21; Ewing, 588 F.3d at 1235; 27 Jones, 297 F.3d at 934, and supervisory personnel may only be held liable if they “participated 28 in or directed the violations, or knew of the violations and failed to act to prevent them,” 5 1 Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); accord Starr v. Baca, 652 F.3d 1202, 1205- 2 08 (9th Cir. 2011), cert. denied, 132 S.Ct. 2101 (2012); Corales v. Bennett, 567 F.3d 554, 570 3 (9th Cir. 2009). Some culpable action or inaction must be attributable to Defendant and while 4 the creation or enforcement of, or acquiescence in, an unconstitutional policy, as alleged here, 5 may support a claim, the policy must have been the moving force behind the violation. Starr, 6 652 F.3d at 1205; Jeffers v. Gomez, 267 F.3d 895, 914-15 (9th Cir. 2001); Redman v. County 7 of San Diego, 942 F.2d 1435, 1446-47 (9th Cir. 1991). 8 All of the named Defendants in the Second Amended Complaint hold supervisory 9 positions, and they did not have any personal interactions with Plaintiff to form a basis of 10 liability. Plaintiff has not alleged facts demonstrating that Defendants “participated in or 11 directed the violations, or knew of the violations and failed to act to prevent them.” Insofar as 12 he cites a policy and/or custom, Plaintiff has not demonstrated that any policy or custom was 13 the moving force behind the violation. Moreover, Plaintiff alleges conclusory, speculative 14 allegations and has not set forth facts upon which the requisite liability may be based. 15 Therefore, Plaintiff fails to state a claim against any of the Defendants. 16 C. 17 The substantive component of the Due Process Clause protects civil detainees from 18 unconstitutional conditions of confinement and ensures a plaintiff’s right to personal safety 19 while in a state detention facility. Youngberg, 457 U.S. at 315. Such individuals are “entitled 20 to more considerate treatment and conditions of confinement than criminals whose conditions 21 of confinement are designed to punish.” Id., 457 U.S. at 321-22. Fourteenth Amendment 22 Plaintiff fails to raise a claim that adequately supports a violation of his rights under the 23 Fourteenth Amendment. “Where a particular amendment provides an explicit textual source of 24 constitutional protection against a particular sort of government behavior, that Amendment, not 25 the more generalized notion of substantive due process, must be the guide for analyzing a 26 plaintiff’s claims.” Patel v. Penman, 103 F.3d 868, 874 (9th Cir. 1996) (citations, internal 27 quotations, and brackets omitted) overruled on other grounds by Unitherm Food Systems, Inc. 28 v. Swift-Eckrick, Inc., 546 U.S. 394 (2006); County of Sacramento v. Lewis, 523 U.S. 833, 842 6 In this case, the Eighth Amendment “provides [the] explicit textual source of 1 (1998). 2 constitutional protection.” Patel, 103 F.3d at 874. Therefore, the Eighth Amendment, rather 3 than the Due Process Clause of the Fourteenth Amendment, governs Plaintiff’s claims. 4 D. 5 Under the Eighth Amendment, “prison officials are . . . prohibited from being 6 deliberately indifferent to policies and practices that expose inmates to a substantial risk of 7 serious harm.” Parsons v. Ryan, 754 F.3d 657, 677 (9th Cir. 2014); see also Helling v. 8 McKinney, 509 U.S. 25, 35 (1993); Farmer v. Brennan, 511 U.S. 825, 847 (1994) (prison 9 official violates Eighth Amendment if he or she knows of a substantial risk of serious harm to 10 an inmate and fails to take reasonable measures to avoid the harm). “Deliberate indifference 11 occurs when ‘[an] official acted or failed to act despite his knowledge of a substantial risk of 12 serious harm.’” Solis v. Cnty. of Los Angeles, 514 F.3d 946, 957 (9th Cir. 2008). A prisoner 13 may state “a cause of action under the Eighth Amendment by alleging that [prison officials] 14 have, with deliberate indifference, exposed him to [environmental conditions] that pose an 15 unreasonable risk of serious damage to his future health.” Helling, 509 U.S. at 35. Eighth Amendment 16 “The second step, showing ‘deliberate indifference,’ involves a two part inquiry.” 17 Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010). “First, the inmate must show that the 18 prison officials were aware of a ‘substantial risk of serious harm’ to an inmate’s health or 19 safety.” Id. (quoting Farmer, 511 U.S. at 837). “This part of [the] inquiry may be satisfied if 20 the inmate shows that the risk posed by the deprivation is obvious.” Id. (citation omitted). 21 “Second, the inmate must show that the prison officials had no ‘reasonable’ justification for the 22 deprivation, in spite of that risk.” Id. (citing Farmer, 511 U.S. at 844 (“[P]rison officials who 23 actually knew of a substantial risk to inmate health or safety may be found free from liability if 24 they responded reasonably.”) (footnote omitted). 25 As explained above, Plaintiff has failed to sufficiently allege that Defendants knew of a 26 substantial risk of serious harm and failed to prevent it. 27 Defendants had direct and specific scientific and medical health knowledge of the dangers of 28 Valley Fever, he has not provided any factual allegations for the court to infer that Defendants 7 While Plaintiff contends that 1 received documents or other information and were aware of the contents. Even if Plaintiff 2 could prove knowledge, he would need to plausibly allege that Defendants exhibited deliberate 3 indifference in taking, or failing to take, action. See Lua v. Smith, 2015 WL 1565370 (E.D. 4 Cal. 2015). Plaintiff has not done so. Therefore, Plaintiff fails to state a claim for Eighth 5 Amendment deliberate indifference against any of the Defendants. 6 While the Court recognizes that the exact circumstances required to state a claim under 7 the Eighth Amendment based on Valley Fever exposure are not clear, it is well settled that 8 exposure to, and contraction of, Valley Fever while housed at an endemic institution are not, by 9 themselves, sufficient to state a claim under the Eighth Amendment. In other words, the 10 premise that the location of CSH is so inherently dangerous due to the presence of Valley Fever 11 cannot support a constitutional violation. See Hines v. Youssef, 2015 WL 164215, at *4 (E.D. 12 Cal. 2015) (rejecting African-American asthmatic prisoner’s Eighth Amendment claim arising 13 from exposure to and contraction of Valley Fever); accord Williams v. Biter, 2015 WL 14 1830770, at *3 (E.D. Cal. 2015). This premise is unacceptable where free citizens residing in 15 the surrounding areas tolerate this increased risk, regardless of race or medical condition. “An 16 individual who lives out of custody . . . anywhere in the Southern San Joaquin Valley is at 17 relatively high risk exposure to Coccidioides immitis spores,” and “[u]nless there is something 18 about a prisoner’s conditions of confinement that raises the risk of exposure substantially above 19 the risk experienced by the surrounding communities, it cannot be reasoned that the prisoner is 20 involuntarily exposed to a risk society would not tolerate.” Hines, at *4; see also Smith v. State 21 of California, Case No. 1:13-cv-0869-AWI-SKO (PC), 2016 WL 398766, *1 (E.D. Cal. Feb. 2, 22 2016); see also Cunningham v. Kramer, Case No. 1:15-cv-01362-AWI-MJS (PC), 2016 WL 23 1545303 (E.D. Cal. Apr. 15, 2016) (discussing history of case law in Valley Fever cases). 24 Therefore, merely being confined in an area in which Valley Fever spores are present 25 does not state a claim under the Eighth Amendment. Here, Plaintiff fails to allege facts to 26 indicate that the risk of exposure to Valley Fever at Coalinga State Hospital is any higher than 27 the surrounding community. Therefore, Plaintiff fails to state a claim for his exposure to 28 Valley Fever. 8 1 E. 2 Plaintiff does not state the basis for his Fourth Amendment claim and the Court can 3 Fourth Amendment discern no such basis. Accordingly, this claim should be dismissed. 4 F. 5 Plaintiff states that he “invokes the pendent jurisdiction under the Federal Tort Claims 6 Act.” (ECF No. 12 at 7.) “The FTCA is a limited waiver of sovereign immunity, authorizing 7 suit against the United States for tortious performance of governmental functions in limited 8 cases,” Bibeau v. Pacific Northwest Research Found., Inc., 339 F.3d 942, 945 (9th Cir. 2003), 9 and the waiver “is strictly construed in favor of the sovereign . . . ,” FDIC v. Craft, 157 F.3d 10 697, 707 (9th Cir. 1998). “The United States is the only proper defendant in a [Federal Tort 11 Claims Act] action.” Lance v. United States, 70 F.3d 1093, 1095 (9th Cir. 1995) (citing Woods 12 v. United States, 720 F.2d 1451, 1452 n.1 (9th Cir. 1983)). Federal Tort Claims Act 13 In addition, a suit may not be instituted against the United States under the FTCA unless 14 the claim is first presented to the appropriate federal agency and one of the following 15 conditions is met: the claim is finally denied, or six months have passed without a final 16 resolution having been made. 28 U.S.C. § 2675(a). The claim presentation requirement is a 17 jurisdictional prerequisite to bringing suit and must be affirmatively alleged in the complaint. 18 Gillispie v. Civiletti, 629 F.2d 637, 640 (9th Cir. 1980). 19 Plaintiff fails to allege that he presented a claim to the appropriate federal agency. 20 Moreover, Plaintiff has not named the United States as a defendant. Therefore, Plaintiff fails to 21 state a claim under the Federal Torts Claim Act. 22 G. 23 Plaintiff brings claims for negligence, which is a state tort, and for violation of various 24 state statutes and other state laws. Violation of state tort law, state regulations, rules and 25 policies of the CDCR, or other state law is not sufficient to state a claim for relief under § 1983. 26 Section 1983 does not provide a cause of action for violations of state law. See Galen v. Cnty. 27 of Los Angeles, 477 F.3d 652, 662 (9th Cir. 2007). To state a claim under § 1983, there must 28 be a deprivation of federal constitutional or statutory rights. See Paul v. Davis, 424 U.S. 693 State Law Claims 9 1 (1976); also see Buckley v. City of Redding, 66 F.3d 188, 190 (9th Cir. 1995); Gonzaga 2 University v. Doe, 536 U.S. 273, 279 (2002). 3 Although the court may exercise supplemental jurisdiction over state law claims, 4 Plaintiff must first have a cognizable claim for relief under federal law. See 28 U.S.C. ' 1367. 5 Pursuant to 28 U.S.C. § 1367(a), in any civil action in which the district court has original 6 jurisdiction, the district court “shall have supplemental jurisdiction over all other claims in the 7 action within such original jurisdiction that they form part of the same case or controversy 8 under Article III,” except as provided in subsections (b) and (c). “[O]nce judicial power exists 9 under § 1367(a), retention of supplemental jurisdiction over state law claims under 1367(c) is 10 discretionary.” Acri v. Varian Assoc., Inc., 114 F.3d 999, 1000 (9th Cir. 1997). “The district 11 court may decline to exercise supplemental jurisdiction over a claim under subsection (a) if . . . 12 the district court has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 13 1367(c)(3). The Supreme Court has cautioned that “if the federal claims are dismissed before 14 trial, . . . the state claims should be dismissed as well.” United Mine Workers of America v. 15 Gibbs, 383 U.S. 715, 726 (1966). 16 Here, because the court finds that Plaintiff has not stated any federal claims in the 17 Second Amended Complaint, the Court shall not exercise supplemental jurisdiction over his 18 state law claims. Parra v. PacifiCare of Ariz., Inc., 715 F.3d 1146, 1156 (9th Cir. 2013) (citing 19 28 U.S.C. § 1367(c)(3)). Therefore, Plaintiff’s state law claims should be dismissed. 20 V. CONCLUSION AND ORDER 21 The court finds that Plaintiff’s Second Amended Complaint fails to state a claim upon 22 which relief may be granted under section 1983. The court previously granted Plaintiff leave to 23 amend the complaint, with ample guidance by the court. 24 complaints without stating any claims upon which relief may be granted under § 1983. The 25 court finds that the deficiencies outlined above are not capable of being cured by amendment, 26 and therefore further leave to amend should not be granted. 28 U.S.C. § 1915(e)(2)(B)(ii); 27 Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). 28 /// 10 Plaintiff has now filed three 1 Therefore, IT IS HEREBY RECOMMENDED that: 2 1. Pursuant to 28 U.S.C. § 1915A and 28 U.S.C. § 1915(e), this action be 3 dismissed with prejudice for failure to state a claim upon which relief may be 4 granted under § 1983; and 5 3. 6 These Findings and Recommendations will be submitted to the United States District 7 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 8 thirty (30) days after being served with these Findings and Recommendations, Plaintiff may 9 file written objections with the court. The document should be captioned “Objections to 10 Magistrate Judge=s Findings and Recommendations.” Plaintiff is advised that failure to file 11 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 12 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 13 (9th Cir. 1991)). The Clerk be directed to close this case 14 15 16 17 IT IS SO ORDERED. Dated: March 24, 2017 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 11

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