Brock v. Tuolumne County Sheriffs

Filing 14

FINDINGS and RECOMMENDATION to Dismiss Doe 2 and the Second Claim; ORDER Authorizing Plaintiff to Conduct Discovery to Determine the Identities of Doe 1 and Doe 3 10 ; CASE ASSIGNED to Chief Judge Lawrence J. O'Neill and Magistrate Judge Jennifer L. Thurston. New Case No. 1:17-cv-01610 LJO JLT (PC), signed by Magistrate Judge Jennifer L. Thurston on 5/7/2018. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DAVID LEE BROCK,

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Plaintiffs,

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Case No.: 1:17-cv-01610 JLT (PC)
FINDINGS AND RECOMMENDATION TO
DISMISS DOE 2 AND THE SECOND CLAIM;
ORDER AUTHORIZING PLAINTIFF TO
CONDUCT DISCOVERY TO DETERMINE THE
IDENTIFTIES OF DOE 1 AND DOE 3

v.
TUOLUMNE COUNTY SHERIFFS,

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Defendant

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The plaintiff claims that when he was booked into the Tuolumne County Jail, he reported to the

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classification officer that he was a “dropout” from the “Northern” gang. Despite this, he was housed in

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a non-protective custody cell, which resulted in him being attacked by the other inmates in the cell.

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Consequently, he claims violations of the Fourteenth Amendment and California’s Code of

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Regulations, Title 15, section 1050. The Court finds that the plaintiff has failed to state a cognizable

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claim against Doe 2 and has failed to state a claim under the CCR.

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I.

Screening Requirement

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The Court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court

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must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally “frivolous,

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malicious,” or that fail to state a claim upon which relief may be granted.

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II.

Pleading Standard
A complaint must contain “a short and plain statement of the claim showing that the pleader is

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entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do

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not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550

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U.S. 544, 555 (2007)). A plaintiff must set forth “sufficient factual matter, accepted as true, to state a

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claim to relief that is plausible on its face.” Iqbal, at 678. Facial plausibility demands more than the

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mere possibility that a defendant committed misconduct and, while factual allegations are accepted as

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true, legal conclusions are not. Iqbal, at 677-78.
Section 1983 “provides a cause of action for the deprivation of any rights, privileges, or

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immunities secured by the Constitution and laws of the United States.” Wilder v. Virginia Hospital

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Association, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). To state a claim under section 1983,

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a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the

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United States was violated and (2) that the alleged violation was committed by a person acting under

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the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda County, 811

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F.2d 1243, 1245 (9th Cir. 1987).
Under section 1983 the Plaintiff must demonstrate that each defendant personally participated in

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the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the

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presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, at 678-79; Moss

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v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). Prisoners proceeding pro se in civil rights

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actions are entitled to have their pleadings liberally construed and to have any doubt resolved in their

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favor. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted). Even still, the mere

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possibility of misconduct falls short of meeting the plausibility standard, Iqbal, at 678; Moss, at 969.

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III.

Plaintiff’s Allegations
As in his original complaint, the plaintiff claims that upon his booking1 into the Tuolumne

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The plaintiff alleges that he was booked into this jail as a consequence of “a hold from San Joaquin County Jail.”
(Doc. 10 at 3) He indicates that he told Doe 1 that he was “housed in protective custody.” Id. The Court is unclear as
to the plaintiff’s meaning, but he previously alleged that he was “dressed-out” (Doc. 1 at 3), which seems to imply that

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County Jail, he told the booking officer (Doe 1) that he was a “Northern dropout.” (Doc. 10 at 3) He

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reports that during this conversation, the supervising officer (Doc. 2) was present. Id. A third officer,

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Doe 3, escorted the plaintiff to C-Tank, which was a “whites only” cell. Id. He alleges that this was a

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problem because he was a dropout from a Hispanic gang. Id. He alleges that he told Doe 3 that he was

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a Northern dropout and Doe 3 acknowledged that housing him in C-Tank “isn’t right” but did so

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nonetheless. Id. After being placed in the cell, he was attacked by the other inmates. Id. He concludes

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that the placement occurred despite “the knowledge of Does 1, 2, 3 that [he] was a gang dropout and

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suposed [sic] to be house [sic] protective custody.” Id. at 3-4.

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A.

Doe Defendants

Plaintiff describes Doe 1 as the booking officer, Doe 2 as the supervisor of the booking officer

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and the escort officer and Doe 3 as the escort officer. (Doc. 10 at 3) As previously stated,

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Courts generally look on “Doe pleading” with disfavor. Wakefield v. Thompson, 177 F.3d 1160, 1163

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(9th Cir. 1999) (quoting Gillespie v. Civiletti, 629 E.2d 637, 642 (9th Cir. 1980)). Nevertheless, the

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Court will permit the plaintiff to proceed and will give him the opportunity to identify the defendants’

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identities through limited discovery.2 Id.

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B.

Failure to Protect

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Plaintiff seeks to impose liability on the defendants for their failure to protect him from the

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violent acts of the other inmates. As noted above, in Footnote 1, it remains unclear whether the

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plaintiff was a pretrial detainee at the time of these events. Though he concludes he was a pretrial

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detainee, he offers no factual allegations, such as indicating that he was arrested at a location other than

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a jail or prison or describing how the “hold” came to be effective if he was not in custody as the time of

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his arrest.

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As previously noted, the Eighth Amendment’s prohibition against cruel and unusual punishment

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protects convicted prisoners. Bell v. Wolfish, 441 U.S. 520, 535 (1979); Graham v. Connor, 490 U.S.

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386, 395 n.10 (1989). However, conditions of confinement claims brought by pretrial detainees are

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he was coming in from off-the-streets. On the other hand, a “hold” is generally placed on an inmate to prevent his
release from custody.
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Consequently, his motion to compel discovery is DENIED as moot.

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analyzed under the Due Process Clause of the Fourteenth Amendment. Oregon Advocacy Center v.

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Mink, 322 F.3d 1101, 1120 (9th Cir. 2003). However, because the facts could give rise to a violation

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under either Amendment, the Court will permit the issue to be clarified through discovery.
Though it is quite possible Doe 1 acted through negligence, the factual allegations raise an

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inference that he acted with deliberate indifference to the plaintiff’s safety. Thus, the Court will find

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the plaintiff has stated a claim against Doe 1. Likewise, because Doe 3 specifically knew that the

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plaintiff should not be housed in the “whites-only cell” but placed him in the cell anyway, the Court

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finds that the plaintiff has stated a claim against Doe 3.
The plaintiff has not stated a claim against Doe 2. Though he alleges that Doe 2 was present

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when he reported his gang dropout status, he offers no factual allegations that Doe 2 was aware of the

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housing assignment made by Doe 1. The plaintiff’s mere conclusion that Doe 2 knew this, is

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insufficient.

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D.

Title 15 California Code of Regulations

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As noted above, the plaintiff contends that the defendants violated Title 15, section 1050 of

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California’s Code of Regulations. (Doc. 10 at 5) This section requires the administrator of a jail or

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prison to develop a system of classifying inmates. 15 CCR § 1050. It places no obligations on officers

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working in the jail.
In addition, the regulations governing the conduct of prison employees do not necessarily give

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rise to liability if the officers breach them. Indeed, the Court has found no authority to support a finding

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that there is an implied private right of action under Title 15. Given that the statutory language does not

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support an inference that there is a private right of action, the Court finds that the plaintiff fails to state

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a claim upon which relief may be granted.

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E.

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Exhaustion of Administrative Remedies
Once again, the plaintiff admits that he did not grieve the events raised in his complaint. (Doc.

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10 at 4) Now, he claims he failed to do so because Doe 3 refused to give him a grievance form and told

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him that the events were not “grievable.” Id. In his original complaint, he claimed that he failed to

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submit a grievance because the relief he sought was not addressable through a grievance and because

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he feared acts of retaliation. (Doc. 1 at 4)
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As the Court previously informed the plaintiff, he must exhaust available administrative

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remedies in order to bring a claim under the Prison Litigation Reform Act. The PLRA provides that

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“[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other

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Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such

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administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Prisoners are required to

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exhaust the available administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211

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(2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). Exhaustion is required

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regardless of the relief sought by the prisoner and regardless of the relief offered by the process, Booth

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v. Churner, 532 U.S. 731, 741 (2001), and the exhaustion requirement applies to all suits relating to jail

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or prison life. Porter v. Nussle, 435 U.S. 516, 532 (2002). Because exhaustion must precede the filing

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of the complaint, compliance with § 1997e(a) is not achieved by exhausting administrative remedies

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while the lawsuit is pending. See McKinney, 311 F.3d at 1199.
The PLRA does not require exhaustion when circumstances render administrative remedies

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effectively unavailable. Sapp v. Kimbrell, 623 F.3d 813, 822 (9th Cir. 2010) (citing Nunez v. Duncan,

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591 F.3d 1217, 1226 (9th Cir. 2010)); see also Dale v. Lappin, 376 F.3d 652, 656 (7th Cir. 2004)

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(exhaustion not required where prison officials failed to give grievance forms to the plaintiff); Dole v.

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Chandler, 438 F.3d 804, 809, 811 (7th Cir. 2006) (prison officials’ failure to respond to properly filed

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grievance made exhaustion effectively unavailable). To fall within an exception to the exhaustion

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requirement, a prisoner must show that he attempted to exhaust his administrative remedies

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As noted above, the plaintiff now indicates that Doe 3 refused to give him a grievance form.

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The Court is concerned that this claim is being made only after it instructed him on when the PLRA

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would excuse a failure to exhaust. However, the Court cannot judge the plaintiff’s credibility at this

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juncture. Thus, the Court finds his allegations, if truthful, are sufficient at this time.

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E.

Conclusion

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For the reasons discussed above, the plaintiff’s first amended complaint fails to state any

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cognizable claim against Doe 2. Also, the cause of action based upon California’s Code of Regulations

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is not cognizable. Because the first amended complaint suffers from the same defects as to this

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defendant and claim as in his prior pleading, it appears futile to allow further amendment. Akhtar v.
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Mesa, 698 F.3d 1202, 1212-13 (9th Cir. 2012). Accordingly, the Court ORDERS:

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The Clerk of the Court is directed to assign a district judge to the action;

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The plaintiff may conduct limited discovery to determine the true identities of Doe 1 and

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Doe 3. Plaintiff SHALL file a notification indicating the true identities of Doe 1 and Doe 3 no later

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than August 3, 2018;

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In addition, the Court RECOMMENDS:

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That this action proceed only on Claim 1 (failure to protect) against Doe 1 and Doe 3;

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2.

That Doe 2 and Claim II (violation of the California Code of Regulations) be

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DISMISSED.

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These Findings and Recommendations will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 21 days after

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being served with these Findings and Recommendations, Plaintiff may file written objections with the

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Court. The document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” Plaintiff is advised that failure to file objections within the specified time may

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result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. Nov. 18,

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2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

May 7, 2018

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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