Baston v. Yett, et al.

Filing 31

FINDINGS and RECOMMENDATIONS recommending that 18 Defendants' Motion to Dismiss be DENIED re 1 Prisoner Civil Rights Complaint signed by Magistrate Judge Erica P. Grosjean on 12/4/2017. Referred to Judge O'Neill. Objections to F&R due within fourteen (14) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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FINDINGS AND RECOMMENDATIONS
THAT DEFENDANTS’ MOTION TO
DISMISS BE DENIED

Plaintiff,

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v.

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Case No. 1:16-cv-01564-LJO-EPG

ELGAN BASTON,

(ECF No. 18)

EDWARD M. YETT, et al.,

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OBJECTIONS, IF ANY, TO BE FILED
WITHIN 14 DAYS

Defendants.
I.

INTRODUCTION

Elgan Baston (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in

11 this civil rights action pursuant to 42 U.S.C. § 1983.
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Now before the Court is Defendants Benjamin Arreguin, Kristofer R. Campbell, Eddie

13 Ohaya, Michael A. Toscano, and Edward M. Yett’s motion to dismiss Plaintiff’s Complaint.
14 (ECF No. 18.) Defendant D. Curry also filed a joinder in the motion to dismiss after he was
15 served with process in this case. (ECF Nos. 26-27.)
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For the following reasons, it is recommended that Defendants’ motion to dismiss be

17 denied.
SUMMARRY OF ALLEGATIONS IN COMPLAINT1

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II.

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Plaintiff alleges that Defendants failed to protect him from an attack while he was

20 incarcerated at California Correctional Institution (“CCI”) in Tehachapi, California.2 Plaintiff
21 was previously housed in segregated housing in the Substance Abuse Treatment Facility in
22 California State Prison, Corcoran, (“SATF”) because prison officials received confidential
23 information that Plaintiff was going to be attacked for failing to pay an unpaid debt. Despite this
24 knowledge, Defendant Curry transferred Plaintiff, a non-violent and non-gang-affiliated inmate,
25 from SATF to CCI, an institution intended to house CDCR’s most violent and disruptive
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The Court hereby incorporates by reference the summary of the allegations into these Findings and

27 Recommendations. (ECF No. 7, pp. 2-6.)
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Both SATF and CCI are correctional facilities under the authority of the California Department of

28 Corrections and Rehabilitation (“CDCR”).

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1 inmates. Upon Plaintiff’s arrival at CCI, it is alleged that Defendant Yett failed to properly
2 classify Plaintiff’s security level, which resulted in Plaintiff being placed among violent inmates.
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On the day of the attack, December 30, 2015, it is alleged that Defendants Arreiguin,

4 Ohaya, Campbell and Toscano were assigned to monitor the Building 4 rotunda area. However,
5 these Defendants’ view of area from which the rotunda area was monitored, the glass floor of the
6 control booth, was obstructed by blankets. Defendants Arreiguin, Ohaya, Campbell and Toscano
7 had knowledge of the obstruction, but in contravention of CCI policy, took no action to remove
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On the same day, Plaintiff and other inmates in Building 4 were released to the recreation

10 yard. While Plaintiff was in the recreation yard, a fight ensued between several other inmates,
11 requiring the use of force to subdue the aggressors. After this incident, all inmates were recalled
12 back into Building 4. During the controlled recall, Defendants Campbell, Toscano, and Arreguin
13 were aware that there were no staff present inside the Building 4 rotunda to provide direct and
14 constant supervision, and were aware that Ohaya had placed blankets in the control booth,
15 obstructing the supervision of the rotunda area.
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As Plaintiff walked through the rotunda back to his assigned cell, he was attacked by two

17 inmates, one or both of whom stabbed or sliced the left side of his neck.
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III.

FAILURE TO STATE A CLAIM AND SUPPLEMENTAL JURISDICTION

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On April 26, 2017, Chief U.S. District Judge Lawrence O’Neill entered a screening order

20 (the “screening order”) pursuant to 28 U.S.C. § 1915A finding as follows:
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1. Plaintiff stated a cognizable failure to protect claim under the Eighth
Amendment of the U.S. Constitution;
2. Plaintiff stated a state law negligence claim to which he exhausted his
administrative remedies; and
3. The exercise of supplemental jurisdiction under 28 U.S.C. § 1367 over the
state law negligence claim was appropriate.

27 (ECF No. 7.)
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In their motion to dismiss, Defendants contend that this action should be dismissed

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1. Plaintiff fails to state sufficient facts to support his failure to protect claim
under the Eighth Amendment;

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2. Supplemental jurisdiction over Plaintiff’s state law negligence claim should
be declined;

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3. Defendants are immune to Plaintiff’s negligence claim under Government
Code § 820.8; and

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4. Defendants are entitled to qualified immunity.

9 (ECF No. 18.)
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Judge O’Neill has already addressed the first two arguments in the screening order. (ECF

11 No. 7.) A § 1915A screening order and an order resolving a Rule 12(b)(6) motion to dismiss
12 utilize the same claim standard. See Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012)
13 (“Failure to state a claim under § 1915A incorporates the familiar standard applied in the context
14 of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). [citations]”).
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Defendants fail to reference, not to mention address, Judge O’Neill’s screening order.

16 Defendants do not point to any error in that decision. Instead, Defendants make arguments
17 already considered and rejected in that order.
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In any event, the undersigned judge reaches the same result as Judge O’Neill in the

19 screening order after considering Defendants’ motion to dismiss: Plaintiff has stated a claim for
20 failure to protect and the exercise of supplemental jurisdiction over the negligence claim is
21 appropriate. Accordingly, this Court recommends that the motion to dismiss be denied as to
22 Defendants’ first two arguments.
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The only remaining arguments in the motion to dismiss are the third and fourth

24 arguments concerning immunity, which the Court will now address.
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IV.

QUALIFIED IMMUNITY

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Defendants argue that they are entitled to qualified immunity because 1) they did not

27 violate Plaintiff’s constitutional rights, and 2) if they did, the right was not clearly established.
28 “To determine whether an individual officer is entitled to qualified immunity, we ask (1) whether

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1 the official violated a constitutional right and (2) whether the constitutional right was clearly
2 established.” C.B. v. City of Sonora, 769 F.3d 1005, 1022 (9th Cir. 2014) (citing Pearson v.
3 Callahan, 555 U.S. 223, 232, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009); A.D. v. California
4 Highway Patrol, 712 F.3d 446, 453–54 (9th Cir. 2013)). At the motion to dismiss stage, the
5 court treats the allegations in the complaint as true and dismissal on qualified immunity grounds
6 is not appropriate unless the court can determine from the face of the complaint that qualified
7 immunity applies. Groten v. California, 251 F.3d 844, 851 (9th Cir. 2001).
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In the screening order, Judge O’Neill found that Plaintiff sufficiently alleged a

9 constitutional violation -- a failure to protect claim -- as follows:
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As detailed above, Plaintiff has alleged that the failure to classify and house him
properly and in accordance with CDCR policy by Curry and Yett resulted in him
sustaining a serious injury after being attacked by two unknown inmates in the
Building 4 rotunda area that should have been monitored by Ohaya, Arreguin,
Toscano and Campbell. Plaintiff’s allegations regarding his history of owing a
debt and previously being placed in protective housing and Defendants’
awareness of his history and housing needs are sufficient at this stage of
proceedings and satisfy the requirements set forth above.

15 (ECF No. 7, p. 9.) Thus, the Court will turn its analysis to the second prong of the qualified
16 immunity inquiry; whether the constitutional right was clearly established.
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With regard to the second prong of the qualified immunity analysis, the Supreme Court

18 of the United States has stated:
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A clearly established right is one that is “sufficiently clear that every
reasonable official would have understood that what he is doing violates that
right.” Reichle v. Howards, 566 U.S. ––––, ––––, 132 S.Ct. 2088, 2093, 182
L.Ed.2d 985 (2012) (internal quotation marks and alteration omitted). “We do not
require a case directly on point, but existing precedent must have placed the
statutory or constitutional question beyond debate.” Ashcroft v. al–Kidd, 563 U.S.
731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011). Put simply, qualified
immunity protects “all but the plainly incompetent or those who knowingly
violate the law.” Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d
271 (1986).
“We have repeatedly told courts ... not to define clearly established law at
a high level of generality.” al–Kidd, supra, at 742, 131 S.Ct. 2074. The
dispositive question is “whether the violative nature of particular conduct is
clearly established.” Ibid. (emphasis added). This inquiry “ ‘must be undertaken
in light of the specific context of the case, not as a broad general proposition.’ ”
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Brosseau v. Haugen, 543 U.S. 194, 198, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004)
(per curiam) (quoting Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150
L.Ed.2d 272 (2001)).

3 Mullenix v. Luna, 136 S. Ct. 305, 308, 193 L. Ed. 2d 255 (2015).
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In discussing the application of qualified immunity to a failure to protect claim in Castro

5 v. City of Los Angeles, the U.S. Court of Appeals for the Ninth Circuit stated the following:
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First, a right is clearly established when the “contours of the right [are]
sufficiently clear that a reasonable official would understand that what he is doing
violates that right.” Serrano v. Francis, 345 F.3d 1071, 1077 (9th Cir. 2003)
(quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d
523 (1987)). The “contours” of Castro's right were his right to be free from
violence at the hands of other inmates. Farmer, 511 U.S. at 833, 114 S.Ct. 1970.
The Supreme Court need not catalogue every way in which one inmate can harm
another for us to conclude that a reasonable official would understand that his
actions violated Castro's right. Nor do the official's actions, in this context, require
some affirmative act. As we held months before Castro's arrest, “direct causation
by affirmative action is not necessary: ‘a prison official may be held liable under
the Eighth Amendment if he knows that inmates face a substantial risk of serious
harm and disregards that risk by failing to take reasonable measures to abate it.’ ”
Clem v. Lomeli, 566 F.3d 1177, 1182 (9th Cir. 2009) (ellipsis omitted) (quoting
Farmer, 511 U.S. at 847, 114 S.Ct. 1970). The contours of the right required only
that the individual defendants take reasonable measures to mitigate the substantial
risk to Castro. Accordingly, we reject the individual defendants’ argument that the
law on which Castro bases his claim was not clearly established at the time of the
incident. Therefore, qualified immunity does not bar the claim against them.

18 833 F.3d 1060, 1067 (9th Cir. 2016), cert. denied sub nom. Los Angeles Cty., Cal. v. Castro, 137
19 S. Ct. 831, 197 L. Ed. 2d 69 (2017).
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Here, construing all facts in favor of Plaintiff, a reasonable official in Defendant Curry

21 and Yett’s position would have understood that the failure to classify and house Plaintiff
22 properly and in accordance with CDCR policy would create an excessive risk to Plaintiff’s
23 safety. Likewise, a reasonable official in Defendants Ohaya, Arreguin, Toscano and Campbell’s
24 position would have understood that creating excessive risk to inmate safety by failing to
25 properly monitor the rotunda area where Plaintiff was attacked would create a substantial risk to
26 the safety of the inmates, including Plaintiff. As provided in Castro, “[t]he contours of the right
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1 required only that the individual defendants take reasonable measures to mitigate the substantial
2 risk…” Castro, 833 F.3d at 1067.
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The Court must treat the allegations in the Complaint as true at this stage of the case. See

4 Groten, 251 F.3d at 851. Clearly, material issues of fact remain to be determined. At a later
5 stage of the case, those facts might very well show that Defendants acted reasonably.
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V.

IMMUNITY UNDER CALIFORNIA GOVERNMENT CODE § 820.8

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Defendants claim that they are entitled to immunity under California Government Code §

8 820.8 because Plaintiff has not alleged any facts that show the acts or omissions of any of the
9 Defendants caused his injuries. The statute relied upon by Defendants provides as follows:
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Except as otherwise provided by statute, a public employee is not liable for an
injury caused by the act or omission of another person. Nothing in this section
exonerates a public employee from liability for injury proximately caused by his
own negligent or wrongful act or omission.

13 Cal. Gov't Code § 820.8.
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“To establish liability in negligence, it is a fundamental principle of tort law that there

15 must be a legal duty owed to the person injured and a breach of that duty which is the proximate
16 cause of the resulting injury.” Ileto v. Glock Inc., 349 F.3d 1191, 1206 (9th Cir. 2003) (quoting
17 Jacoves v. United Merchandising Corp., 9 Cal.App.4th 88, 11 Cal.Rptr.2d 468, 484 (1992)).
18 California law recognizes a special relationship between jailer and prisoner giving rise to such a
19 duty of care. See Giraldo v. California Dep't of Corr. & Rehab., 168 Cal. App. 4th 231, 250, 85
20 Cal. Rptr. 3d 371, 386 (Cal.App., 1st Dist. 2008) (providing that it is “manifestly foreseeable that
21 an inmate may be at risk of harm” so as to give rise to the special relationship as prisoners are
22 vulnerable and dependent upon the jailer for protection). “Proximate cause ‘limits the
23 defendant's liability to those foreseeable consequences that the defendant's negligence was a
24 substantial factor in producing.’” Ileto, 349 F.3d at 1206 (quoting Mendoza v. City of Los
25 Angeles, 66 Cal.App.4th 1333, 78 Cal.Rptr.2d 525, 530 (1998)). “Whether an act is the
26 proximate cause of injury is generally a question of fact; it ‘is a question of law where the facts
27 are uncontroverted and only one deduction or inference may reasonably be drawn from those
28 facts.’” Id. (quoting Garman v. Magic Chef, Inc., 117 Cal.App.3d 634, 173 Cal.Rptr. 20, 22

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1 (1981)).
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The immunity statute relied upon Defendants, Cal. Gov't Code § 820.8, provides that

3 “[n]othing in this section exonerates a public employee from liability for injury proximately
4 caused by his own negligent or wrongful act or omission.” Under a plain reading of this text, the
5 application of § 820.8 immunity would be not be permitted at the motion to dismiss stage where
6 a plaintiff properly alleges a negligence claim because negligence includes the element of
7 proximate causation.
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In the screening order, the Court summarized the negligence allegations as follows:

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Plaintiff has alleged negligence, under California state law, against all
Defendants. Compl. at 12. Specifically, Plaintiff alleges that: Yett owed him a
duty to properly classify and house him, and was negligent when he failed to
remove Plaintiff from an improper facility; that Campbell, Toscano, and Arreguin
owed him a duty to maintain direct and constant supervision of inmates known to
be violent, failed to perform this duty, and directly and proximately caused him to
be attacked; that Ohaya owed Plaintiff a duty to supervise the control booth, and
that he failed in this duty when he placed blankets in a manner that improperly
obstructed the view of the rotunda area from the control booth; and that Curry
owed Plaintiff a duty to ensure he was properly housed in an institution
appropriate with his placement score and case factors, and that Curry failed in this
duty when he/she caused Plaintiff to be transferred to a facility designed for
CDCR’s most violent inmates. Id. at 12-13. Plaintiff alleges that each Defendant’s
breach of their respective duties directly and proximately caused him to suffer the
attack and sustain general damages. Id.

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19 (ECF No. 7, p. 10.) Thus, the Court found in the screening order that Plaintiff had properly
20 alleged that each Defendant had proximately caused his injuries. Accordingly, the Court cannot
21 conclude at the motion to dismiss stage that Defendants are entitled to immunity under Cal.
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22 Gov't Code § 820.8.

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VI.

CONCLUSION

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Based on the foregoing, it is HEREBY RECOMMENDED that Defendants’ motion to

25 dismiss (ECF No. 18) be denied.
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However, like the qualified immunity discussion above, this conclusion does not
28 prevent Defendants from raising the argument again at a later stage of this litigation.
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These findings and recommendations are submitted to the district judge assigned to the

2 case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within fourteen days after being
3 served with these findings and recommendations, Plaintiff may file written objections with the
4 court. Such a document should be captioned "Objections to Magistrate Judge's Findings and
5 Recommendations." Plaintiff is 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.
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2014) (quoting Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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9 IT IS SO ORDERED.
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Dated:

December 4, 2017

/s/
UNITED STATES MAGISTRATE JUDGE

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