Murillo v. Holland et al

Filing 46

FINDINGS and RECOMMENDATIONS recommending that 27 Defendants' Motion to Dismiss be GRANTED IN PART AND DENIED IN PART re 1 Prisoner Civil Rights Complaint signed by Magistrate Judge Barry M. Kurren on 9/12/2016. Referred to Judge O'Neill. Objections to F&R due within fourteen (14) days. (Jessen, A)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA

JOAQUIN MURILLO,

)
)
Petitioner,
)
)
vs.
)
)
K. HOLLAND, ET AL.,
)
)
Respondents.
)
)
______________________________ )

1:15-cv-00266-LJO-BMK

FINDINGS AND
RECOMMENDATIONS TO GRANT
IN PART AND DENY IN PART
DEFENDANTS’ MOTION TO
DISMISS (Doc. 27)

FINDINGS AND RECOMMENDATIONS TO GRANT IN PART AND DENY IN
PART DEFENDANTS’ MOTION TO DISMISS (Doc. 27)
Before the Court is Defendants’ Motion to Dismiss (Doc. 27) Plaintiff
Joaquin D. Murillo’s Complaint, which asserts state and federal claims against the
warden, deputy warden, and correctional sergeant at California Correctional
Institution. After careful consideration of the Motion and the supporting and
opposing memoranda, the Court finds and recommends that the Motion be
GRANTED IN PART and DENIED IN PART. The Court recommends that all of
Plaintiff’s claims be dismissed except for Plaintiff’s claim for monetary damages
against Defendants in their individual capacities, for violation of his Eighth
Amendment rights. The Court recommends dismissal of the state law claims, the
federal claims against Defendants in their official capacities, and Plaintiff’s request

for injunctive relief.
BACKGROUND
In July 2014, while imprisoned at the California Correctional
Institution in Tehachapi, California, Defendant K. Holland (warden), Defendant J.
Gutierrez (deputy warden), and Defendant G. Ybarra (correctional sergeant)
implemented, enforced, and upheld a procedure to conduct safety and welfare
checks on inmates housed in segregation. (Complaint at 3.) This procedure,
called Guard One, involves the use of a metal wand, which made a loud noise in each
prison cell and was conducted every thirty minutes. (Id.) Plaintiff alleges that the
constant loud noise was “torture” that caused sleep deprivation, fatigue, stress,
anxiety, and depression. (Id.)
On February 20, 2015, Plaintiff filed this action, asserting state and
federal claims against Defendants. (Id. at 4-5.) With respect to the state law
claims, Plaintiff asserts that Defendants were negligent because they (1) applied the
Guard One procedure to all inmates instead of applying it only to mental-health
inmates, (2) did not step into the prison cells to determine how loud the noise is for
the inmates, (3) failed to supervise officers who conducted the Guard One security
checks, and (4) failed to investigate or interview anyone regarding his 602 appeal.
(Id.) Plaintiff also asserts a claim for fraud against Defendant Ybarra, claiming he

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lied “when he stated in his report that he interviewed the plaintiff in regards to the
appeal claims.” (Id. at 5.) Nowhere in the Complaint does Plaintiff state that he
complied with the procedures required by the California Government Claims Act for
these state law claims.
Plaintiff also brings federal claims, asserting that Defendants violated
his rights against cruel and unusual punishment under the Eighth Amendment when
they were “deliberately indifferent to the ongoing torture” caused by the Guard One
security checks. (Id. at 4-5.) Plaintiff alleges that Defendants continued to enforce
and uphold the security checks, even after inmates had complained about its adverse
effects. (Id.)
Plaintiff prays for monetary damages and injunctive relief. (Id. at 3.)
He seeks “$100,000.00 or no less than $100.00 for each day of the implementation
of the Guard One safety/security checks.” (Id.) He also asks the Court to (1) order
the prison to stop the Guard One security checks and to instead “implement a
practice that is soundless, that does not wake inmates up all hours of the day and
night” and (2) order that the Guard One security checks be administered only to
mental health inmates. (Id.)
In August 2015, Plaintiff was transferred from the California
Correctional Institution in Tehachapi, California to the Kern Valley State Prison in

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Delano, California.
LEGAL STANDARD
A motion to dismiss pursuant to Federal Rules of Civil Procedure
12(b)(6) is a challenge to the sufficiency of the pleadings set forth in the complaint.
“When a federal court reviews the sufficiency of a complaint, . . . [t]he issue is not
whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer
evidence to support the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). A
12(b)(6) dismissal is proper where there is either a “lack of a cognizable legal theory
or the absence of sufficient facts alleged under a cognizable legal theory.”
Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir.1990). In resolving a
12(b)(6) motion, a court must: (1) construe the complaint in the light most
favorable to the plaintiff; (2) accept all well-pleaded factual allegations as true; and
(3) determine whether plaintiff can prove any set of facts to support a claim that
would merit relief. Saldate v. Wilshire Credit Corp., 686 F. Supp. 2d 1051, 1057
(E.D. Cal. 2010).
DISCUSSION
I.

Plaintiff’s State Law Claims
Defendants argue that Plaintiff’s negligence and fraud claims must be

dismissed for failure to comply with the California Government Claims Act.

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(Motion at 5-8.) The Court agrees.
The California Government Claims Act (“CGCA”) was enacted “to
confine potential governmental liability to rigidly delineated circumstances:
immunity is waived only if the various requirements of the Act are satisfied.”
Nuveen Mun. High Income Opportunity Fund v. City of Alameda, Cal., 730 F.3d
1111, 1125 (9th Cir. 2013). Before a public employee can be sued for money
damages under California law, a plaintiff “must first file a government claim
pursuant to the CGCA” and the claim must be “acted upon by the board” or “deemed
to have been rejected by the board.” D.V. v. City of Sunnyvale, 65 F. Supp. 3d 782,
786 (N.D. Cal. 2014); Robinson v. Alameda County, 875 F. Supp. 2d 1029, 1043
(N.D. Cal. 2012). Where injunctive relief is sought, “a CGCA claim is still
required if [the plaintiff] also seeks monetary damages that are not incidental to the
relief sought.” Robinson, 875 F. Supp. 2d at 1045. Compliance with the CGCA
requirements “is a condition precedent to a tort action and the failure to present the
claim bars the action.” D.V., 65 F. Supp. 3d at 786. A complaint including claims
subject to the CGCA “must include facts demonstrating compliance with the claim
presentation requirement or the claim will be dismissed.” Id.
The CGCA requirements for claim presentation apply to Plaintiff’s
negligence and fraud claims against Defendants. Although Plaintiff seeks both

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injunctive relief and money damages, the “claim for monetary damages is ‘more
than incidental’ to [his] request for injunctive relief.” See Robinson, 875 F. Supp.
2d at 1045. Indeed, Plaintiff seeks up to $100,000 for each day the Guard One
security checks were used since July 2014. (Complaint at 3.) Thus, monetary
damages are central to Plaintiff’s tort claims and the CGCA applies. See Robinson,
875 F. Supp. 2d at 1045 (“Regardless of whether Plaintiff seeks injunctive relief for
her defamation claim, she was still required to comply with the CGCA because her
monetary relief claims were more than incidental.”).
In the Complaint, Plaintiff neither alleges compliance with the CGCA
nor provides a justification to excuse his noncompliance. The Complaint makes no
mention of the CGCA at all. This omission is fatal to Plaintiff’s negligence and
fraud claims. See D.V., 65 F. Supp. 3d at 786 (“failure to allege facts
demonstrating or excusing compliance with the claim presentation requirements
subjects a claim against a public entity to a demurrer for failure to state a cause of
action”). The Court therefore finds and recommends that Plaintiff’s negligence and
fraud claims against Defendants in their official and individual capacities be
dismissed for failure to comply with the CGCA requirements. See Chavira v. El
Rancho Unified School District, Civ. No. 2:15-07147 CAS-ASX, 2016 WL
1367704, at *7 n.10 (C.D. Cal. April 4, 2016) (dismissing state law claims against a

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state employee in his individual capacity for failure to comply with the CGCA
requirements).
II.

Plaintiff’s Federal Claims
Plaintiff asserts that Defendants violated his rights against cruel and

unusual punishment under the Eighth Amendment whey they were “deliberately
indifferent to the ongoing torture” caused by the Guard One security checks.
(Complaint at 4-5.) Defendants argue that (1) the federal claims against
Defendants in their official capacities for money damages must be dismissed
pursuant to the Eleventh Amendment, (2) the federal claims for injunctive relief are
moot, and (3) Plaintiff fails to allege facts sufficient to support the federal claims
against Defendants, as supervisors, in their individual capacities. (Motion at 8-12;
Reply at 3-5.)
A. Federal Claims Against Defendants in Their Official Capacities
The Eleventh Amendment “bars citizen suits against states,
institutional arms of the state, and state officials in their official capacity when the
relief sought is retrospective in nature, i.e. damages.” Ulaleo v. Paty, 902 F.2d
1395, 1398 (9th Cir. 1990). “[I]f the relief sought is prospective relief against a
state official, i.e. injunctions, the relief is allowable.” Id. Suits against state
officials in their official capacity are treated as suits against the state for purposes of

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Eleventh Amendment immunity. See Hafer v. Melo, 502 U.S. 21, 25 (1991);
Sherez v. State of Haw. Dept. of Educ., 396 F. Supp. 2d 1138, 1142 (D. Haw. 2005).
Plaintiff’s Opposition makes clear that Defendants are sued “both as
individuals and officials of the state.” (Opp. at 3.) Accordingly, the Court finds
that Plaintiff’s federal claims against Defendants in their official capacities for
money damages are barred by the Eleventh Amendment. See Ulaleo, 902 F.2d at
1398. However, the Eleventh Amendment does not bar Plaintiff’s claims to the
extent they seek prospective injunctive relief.
B. Federal Claims for Injunctive Relief
Defendants contend that Plaintiff’s claims for injunctive relief are
moot, in light of his recent transfer to Kern Valley State Prison. (Motion at 9-10;
Opp. at 4.)
“A claim is considered moot if it has lost its character as a present, live
controversy and if no effective relief can be granted; where the question sought to be
adjudicated has been mooted by developments subsequent to filing of the complaint,
no justiciable controversy is presented.” Flowers v. Ahern, 650 F. Supp. 2d 988,
990 (N.D. Cal. 2009) (citing Flast v. Cohen, 392 U.S. 83, 95 (1968)). Where
injunctive relief is requested, questions of mootness are determined in light of the
present circumstances. Mitchell v. Dupnik, 75 F.3d 517, 528 (9th Cir. 1996).

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“When an inmate has been transferred to another prison and there is no
reasonable expectation nor demonstrated probability that he will again be subjected
to the prison conditions from which he seeks injunctive relief, the claim for
injunctive relief should be dismissed as moot.” Flowers, 650 F. Supp. 2d at 991
(citing Dilley v. Gunn, 64 F.3d 1365, 1368-69 (9th Cir. 1995)). “A claim that the
inmate might be retransferred to the prison where the injury occurred is too
speculative to overcome mootness.” Id. (citing Dilley, 64 F.3d at 1368-69). The
Ninth Circuit has dismissed prisoners’ claims for injunctive relief as moot when they
were transferred to other facilities. See, e.g., Dilley, 64 F.3d at 1368 (“An inmate’s
release from prison while his claims are pending generally will moot any claims for
injunctive relief relating to the prison’s policies.”); Johnson v. Moore, 948 F.2d 517,
519 (9th Cir. 1991) (dismissing a prisoner’s claims for injunctive relief as moot
because he was transferred to a different correctional facility); Darring v. Kincheloe,
783 F.2d 874, 876 (9th Cir. 1986) (same).
In this case, Plaintiff’s Complaint challenges the implementation of
Guard One security checks at the California Correctional Institution in Tehachapi,
California and seeks injunctive relief. After filing the Complaint, Plaintiff was
transferred to Kern Valley State Prison in Delano, California. Plaintiff asserts that
he has been housed at the Tehachapi prison “on two separate occasions, making the

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Plaintiff’s claims not moot.” (Opp. at 3.) He also argues that Guard One checks
are implemented statewide and he “can reasonably be expected to be placed in
segregation in the future.” (Id.) However, Plaintiff’s suggestions that he may be
subject to Guard One security checks in the future are “too speculative to overcome
mootness.” Flowers, 650 F. Supp. 2d at 991. Further, Plaintiff has not alleged that
he has been subject to the Guard One security checks at Kern Valley State Prison.
Therefore, because Plaintiff has been transferred to another facility and “there is no
reasonable expectation nor demonstrated probability that he will again be subjected
to the prison conditions from which he seeks injunctive relief,” the Court finds and
recommends that his claims for injunctive relief be dismissed as moot. See
Flowers, 650 F. Supp. 2d at 991.
C. Federal Claims Against Defendants in Their Individual Capacities
Defendants assert that Plaintiff’s Eighth Amendment claims against
Defendants in their individual capacities must be dismissed because “Plaintiff does
not allege that any of the named defendants actually conducted the Guard One
security checks.” (Motion at 10-11; Reply at 4.) Defendants argue that, as
supervisors, Defendants are “not liable under § 1983 for the actions of their
employees” who conducted the security checks. (Motion at 11.)

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“[S]ection 1983 suits do not impose liability on supervising officers
under a respondeat superior theory of liability.” Graves v. City of Coeur D’Alene,
339 F.3d 828, 848 (9th Cir. 2003); see also Hollis v. Director of Corrections, 560 F.
Supp. 2d 920, 927 (C.D. Cal. 2008) (“Vicarious liability does not apply to
supervisorial personnel in a civil rights action.”). “Instead, supervising officers can
be held liable under section 1983 ‘only if they play an affirmative part in the alleged
deprivation of constitutional rights.’” Graves, 339 F.3d at 848. “The supervising
officer has to ‘set in motion a series of acts by others, which he knew or reasonably
should have known, would cause others to inflict the constitutional injury.’” Id.
Plaintiff alleges that Defendants implemented, enforced, and upheld
the Guard One security checks and continued to do so even “after being made aware
of the adverse effects on the inmate population,” including sleep deprivation, stress,
anxiety, and depression. (Complaint at 3-5.) Plaintiff also states that Defendants
ordered other correctional officers to conduct the checks. (Opp. at 4-5.)
Construing Plaintiff’s allegations in the light most favorable to him and accepting
them as true, Saldate, 686 F. Supp. 2d at 1057, the Court finds that Plaintiff
sufficiently alleges that Defendants, as supervising officers, set in motion and
continued to enforce the Guard One procedures, which they knew would cause
injury to Plaintiff and other inmates. Graves, 339 F.3d at 848. The Court

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therefore finds that Plaintiff alleges “sufficient facts under a cognizable legal
theory” to prevail against dismissal of this claim. Balistreri, 901 F.2d at 699.
In sum, the Court recommends dismissal of all state claims, and all
federal claims against Defendants in their official capacities. The Court also finds
that Plaintiff’s request for injunctive relief is moot. As a result, the only claim
remaining before this Court is Plaintiff’s claim for monetary damages against
Defendants in their individual capacities, for violation of his Eighth Amendment
rights.
CONCLUSION
For the foregoing reasons, the Court finds and recommends that
Defendants’ Motion to Dismiss (Doc. 27) be GRANTED IN PART and DENIED IN
PART. Based on this Court’s recommendations, the only claim remaining before
this Court is Plaintiff’s claim for monetary damages against Defendants in their
individual capacities, for violation of his Eighth Amendment rights.
These Findings and Recommendations are submitted to the United
States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. §
636(b)(1). Within fourteen (14) days after being served with these Findings and
Recommendations, any party may file written objections with the Court. Local
Rule 304(b). The document shall be captioned “Objections to Magistrate Judge’s

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Findings and Recommendation.” Responses, if any, are due within fourteen (14)
days after being served with the objections. Local Rule 304(d). The parties are
advised that failure to file objections within the specified time may result in the
waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir.
2014).
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, September 12, 2016

/S/ Barry M. Kurren
Barry M. Kurren
United States Magistrate Judge

Joaquin Murillo v. K. Holland, 1:15-cv-00266-LJO-BMK, FINDINGS AND
RECOMMENDATIONS TO GRANT IN PART AND DENY IN PART DEFENDANTS’
MOTION TO DISMISS (Doc. 27).
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