Dillingham v. Emerson

Filing 45

FINDINGS and RECOMMENDATIONS Recommending that Certain Defendants and Claims be Dismissed for Failure to State a Cognizable Claim 43 , signed by Magistrate Judge Stanley A. Boone on 2/11/2019: 30-Day Deadline. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JERRY DILLINGHAM,
Plaintiff,

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v.
N. EMERSON, et al.,
Defendants.

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Case No.: 1:18-cv-00507-AWI-SAB (PC)
FINDINGS AND RECOMMENDATIONS
RECOMMENDING THAT CERTAIN
DEFENDANTS AND CLAIMS BE DISMISSED
FOR FAILURE TO STATE A COGNIZABLE
CLAIM
(ECF No. 43)
THIRTY (30) DAY DEADLINE

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I.

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INTRODUCTION

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Plaintiff Jerry Dillingham is a state prisoner proceeding pro se and in forma pauperis in this

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civil rights action pursuant to 42 U.S.C. §§ 1983, 1985 and 1986. This matter was referred to a United

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States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On July 26, 2018, the Court screened Plaintiff’s amended complaint and found that Plaintiff

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stated a cognizable claim against Defendants Emerson, Wilson, Wescoat, Velasco, Martines, and

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Loflen, in their individual capacities, for conditions of confinement in violation of the Eighth

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Amendment. (ECF No. 30.) The Court found that Plaintiff failed to state any other cognizable claims.

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Fed. R. Civ. P. 8(a); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic v. Twombly, 550 U.S.

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544, 555 (2007); Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). The Court ordered Plaintiff to

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either file a second amended complaint curing the deficiencies identified or notify the Court that he is

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willing to proceed only on his cognizable claims.
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On August 24, 2018, Plaintiff moved for an extension of time to comply with the screening
order. (ECF No. 30.) On August 27, 2018, that request was granted, and the deadline was extended
by thirty (30) days. (ECF No. 32.)

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On September 17, 2018, Plaintiff filed a notice stating that he stands on his pleading. (ECF
No. 33.) On September 19, 2018, findings and recommendation issued recommending that certain
defendants and claims be dismissed for failure to state a claim. (ECF No. 34.) Plaintiff was granted
an extension of time and filed objections to the findings and recommendations on December 5, 2018.

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(ECF No. 41.)

On December 11, 2018, Plaintiff was granted leave to file a second amended

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complaint. (ECF No. 42.) Plaintiff filed a second amended complaint on January 11, 2019. (ECF No.
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43.)

On January 15, 2019, an order issued vacating the September 19, 2018 findings and

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recommendations. (ECF No. 44.)
II.

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SCREENING REQUIREMENT
The Court is required to screen complaints brought by prisoners seeking relief against a
governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The
Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally
“frivolous or malicious,” that “fail[] to state a claim on which relief may be granted,” or that “seek[]
monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).
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,

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do not suffice.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). Moreover, Plaintiff must

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demonstrate that each defendant personally participated in the deprivation of Plaintiff’s rights. Jones

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v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).

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Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally

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construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121

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(9th Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be facially plausible,
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which requires sufficient factual detail to allow the Court to reasonably infer that each named
defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service,
572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not
sufficient, and “facts that are ‘merely consistent with’ a defendant’s liability” falls short of satisfying
the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.
III.
COMPLAINT ALLEGATIONS

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The Court accepts Plaintiff's allegations in the complaint as true only for the purpose of the sua
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sponte screening requirement under 28 U.S.C. § 1915.
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Plaintiff is in the custody of the California Department of Corrections and Rehabilitation
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(“CDCR”) and is currently housed at Kern Valley State Prison. Plaintiff brings this action against
Defendants N. Emerson, E. Wilson, S. Martines, S. Wescoat, D. Valesco, Loflen (also possibly known
as “Lofflen”), D. Ibarra, S. Marsh, and John Doe 1, correctional officers employed at the California
Substance Abuse Treatment Facility and State Prison at Corcoran, California (“CSATF”). Plaintiff
also names as defendants Stu Sherman, Warden of CSATF, and Scott Kernan, Secretary of CDCR.
The incidents alleged in the complaint occurred while Plaintiff was housed at CSATF.
It rained during the evening of January 25, 2016 to the morning of January 26, 2016. Plaintiff
woke the morning of January 26, 2016 to a large puddle in his cell nearly causing him to lose his
footing. Plaintiff heard other prisoners complaining to Defendants Emerson, Wilson, Westcoat, and

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Martines that their cells were flooded. Plaintiff alleges that Defendants Emerson, Wilson, Westcoat,

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Martines, Valesco, and Loflen were aware of the flooding because from January 21, 2016 through

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May 5, 2016 they had to wade through the puddles in the building when they made their rounds.

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Defendants Emerson, Wilson, Wescoat, and Martines would have the inmate porters come and mop up

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the water that had flooded into the cells. Plaintiff states that on examination, he could see that there

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were holes in the roof that allowed the rain to come into the building. The water dripped down and

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flooded the light fixtures with water and onto the floor. Plaintiff contends that the cell walls had mold

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on them demonstrating that the issue had existed for years.
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Plaintiff alleges that he suffered

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respiratory issues due to the mold.
Plaintiff contends that from January 21, 2016, through May 5, 2016, on days that it rained, he
complained to Defendants Emerson, Wilson, Wescoat, Martines and Valesco during security
inspection about the hazardous conditions. The defendants would stand in a puddle of water in front
of his cell door and did not relocate Plaintiff to a dry available cell.
During the first two weeks of February 2016, Plaintiff asked Defendant Valesco to move him
to a dry cell. Defendant Valesco noticed the condition of Plaintiff’s cell and told Plaintiff that he

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would not move him because since he had worked in the building he had noticed that many of the
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other cells are in the same condition.
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Around March 6 or 7, 2016, Plaintiff woke up during the night and slipped on the wet floor
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causing him injury. Plaintiff asked Defendant Martines to move him to a dry cell. Defendant
Martines told Plaintiff that his cell has had a problem with leaking for a couple of years. Defendant
Martines told Plaintiff that his cell should be “red flagged” but that he was not able to do it because he
was not a “regular.” Defendant Martines told Plaintiff that he could not move him to a dry cell.
On March 8, 2016, Defendant Marsh told Plaintiff that the administration has been aware of
that Plaintiff’s cell has water leaking into it from the cracks in the roof for over two years.
Plaintiff submitted a health care request and, on March 9, 2016, he was seen by Nurse McCoy
who provided Plaintiff with medication for his lower back and hip pain and headache. Plaintiff was
referred for follow-up treatment.

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On May 5, 2016, Plaintiff complained to Defendant Valesco that it had rained overnight and

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his cell was again flooded. Plaintiff asked to be housed in a dry cell. Plaintiff gave him a completed

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inmate request for services. Later than day, Plaintiff saw Defendant Valesco in the office with a

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sergeant (Doe 1) passing the form back and forth and discussing it. Defendant Valesco came to

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Plaintiff’s cell and told him that they had discussed his form and he would not be moved to cell 225.

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Defendant Valesco told Plaintiff that he would not sign the form because it would cause him to be

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liable. Defendant Valesco handed Plaintiff back the form. Plaintiff asked Defendant Valesco for the

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supervisor’s name, but Defendant Valesco just turned and walked away.
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On May 6, 2016, Defendant Emerson and Wescoat arrived about 6:30 and Defendant Wescoat
lost his footing while wading through the puddles of water. Plaintiff asked to be moved out of his cell
into cell 225 which was vacant. Defendant Wescoat refused to move Plaintiff to cell 225 stating that
they knew about his complaining in inmate appeals and that neither he nor Emerson would “red flag”
Plaintiff’s cell. Plaintiff had filed an inmate grievance against Defendant Emerson and Wilson on
January 21, 2016. Defendant Wescoat walked away. Plaintiff slipped on the wet floor injuring his
right hip and his lower back.

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Plaintiff sought medical care and from May 12, 2016, through October 13, 2016, Nurse McCoy
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and Dr. Brown provided him with medical care. Plaintiff had a consultation with an orthopedist
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regarding his right hip pain around January 3, 2018.

The specialist diagnosed bone on bone

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trochanteric bursitis and severe osteoarthritis and recommended a hip replacement.
Plaintiff brings claims for unconstitutional conditions of confinement in violation of the Eighth
Amendment, retaliation, conspiracy in violation of 42 U.S.C. § 1985(3), neglect to prevent a
conspiracy in violation of 42 U.S.C. § 1986, and a state law claim for premises liability. He is seeking
monetary damages.
IV.

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DISCUSSION

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A.

Official Capacity Claim

Plaintiff sues Defendant Kernan in his official capacity seeking monetary damages. “The

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Eleventh Amendment bars suits for money damages in federal court against a state, its agencies, and

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state officials acting in their official capacities.” Aholelei v. Dept. of Public Safety, 488 F.3d 1144,

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1147 (9th Cir. 2007). A suit brought against government officials in their official capacity is generally

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equivalent to a suit against the government itself. McRorie v. Shimoda, 795 F.2d 780, 783 (9th Cir.

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1986). Therefore, officials may be held liable if “‘policy or custom’ . . . played a part in the violation

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of federal law.” McRorie, 795 F.2d at 783 (quoting Kentucky v. Graham, 473 U.S. 159, 166 (1985).

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The official may be liable where the act or failure to respond reflects a conscious or deliberate choice

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to follow a course of action when various alternatives were available. Clement v. Gomez, 298 F.3d
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898, 905 (9th Cir. 2002) (quoting City of Canton v. Harris, 489 U.S. 378, 389 (1989); see Long v.
County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); Waggy v. Spokane County Washington,
594 F.3d 707, 713 (9th Cir. 2010).
Here, Plaintiff cannot bring this action seeking monetary damages against Defendant Kernan in
his official capacity as such damages are barred by the Eleventh Amendment. Further, when an
inmate seeks injunctive or declaratory relief concerning the prison where he is incarcerated, his claims
for such relief become moot when he is no longer subjected to those conditions. Nelson v. Heiss, 271

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F.3d 891, 897 (9th Cir. 2001); Dilley v. Gunn, 64 F.3d 1365, 1368 (9th Cir. 1995); Johnson v. Moore,
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948 F.2d 517, 519 (9th Cir. 1991). Since Plaintiff is no longer housed at CSTAF, he cannot receive
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injunctive relief based on his prior conditions of confinement.
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The Court recommends that Plaintiff’s official capacity claims against Defendant Kernan be
dismissed with prejudice.
B.

Supervisory Liability Claim

Plaintiff brings a supervisory liability claim against Defendants Ibarra, Loflen, Marsh,
Sherman, and Kernan. As to Defendants Ibarra, Sherman and Kernan, the only allegations in the
second amended complaint are that D. Ibarra is a first line supervising correctional officer; Stu
Sherman is warden of CSATF; and Scott Kernan is Secretary of the CDCR.
“Under Section 1983, supervisory officials are not liable for actions of subordinates on any
theory of vicarious liability.” Crowley v. Bannister, 734 F.3d 967, 977 (9th Cir. 2013) (citation and

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internal quotation marks omitted); Iqbal, 556 U.S. at 676. “A supervisor may be liable only if (1) he

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or she is personally involved in the constitutional deprivation, or (2) there is ‘a sufficient causal

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connection between the supervisor’s wrongful conduct and the constitutional violation.’” Crowley,

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734 F.3d at 977 (citation and internal quotation marks omitted). “Under the latter theory, supervisory

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liability exists even without overt personal participation in the offensive act if supervisory officials

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implement a policy so deficient that the policy itself is a repudiation of constitutional rights and is the

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moving force of a constitutional violation.” Id.

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Plaintiff relies on a September 2017 form letter he received from the Prison Law Office which
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states that the Prison Law Office has documented the disrepair of CDCR prisons throughout the state
and has shared concerns about the terrible conditions that prisoners are enduring due to leaky rooms
and walls. (ECF No. 43 at 40.) The letter states that in September 2017, CDCR headquarters staff
stated that they had requested money from the state to make repairs to leaky roofs. However, this
letter is insufficient to demonstrate that any named defendant had knowledge of the conditions
Plaintiff was confined in and failed to act.
Plaintiff’s vague and conclusory statement that officials were aware of his unconstitutional
conditions of confinement, or that the conditions were caused by a “policy,” are insufficient to give

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rise to a constitutional violation. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).
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Plaintiff makes some allegations that knowledge of his cell conditions was presented through the
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appeals process that was reviewed by staff overseen by the warden and secretary, but this is not
sufficient to infer that the warden or secretary had knowledge of the issue and allowed the violation to
continue, or that they implemented a policy.
Plaintiff has not alleged any personal involvement by Defendants Ibarra, Sherman, and Kernan
but alleges that they are liable based solely on their supervisory positions within CDCR. Plaintiff has
failed to state a claim against Defendants Ibarra, Sherman and Kernan in their individual capacities.
As to Defendants Loflen and Marsh, the Court considers whether Plaintiff has stated a claim in
the following sections.
C.

Conditions of Confinement

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Plaintiff alleges a claim for conditions of confinement in violation of the Eighth Amendment.

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To prove a violation of the Eighth Amendment the plaintiff must “objectively show that he was

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deprived of something ‘sufficiently serious,’ and make a subjective showing that the deprivation

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occurred with deliberate indifference to the inmate’s health or safety.” Thomas v. Ponder, 611 F.3d

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1144, 1150 (9th Cir. 2010) (citations omitted). Deliberate indifference requires a showing that “prison

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officials were aware of a “substantial risk of serious harm” to an inmate’s health or safety, and that

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there was no “reasonable justification for the deprivation, in spite of that risk.” Thomas, 611 F.3d at

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1150 (quoting Farmer v. Brennan, 511 U.S. 825, 837, 844 (1994)). Officials may be aware of the risk
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because it is obvious. Thomas, 611 F.3d at 1152.

An inmate is challenging the conditions of

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confinement must show there was a deprivation “sufficiently serious” to form the basis of a violation,

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and “the prison official acted “with a sufficiently culpable state of mind.” Johnson v. Lewis, 217 F.3d

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726, 731 (9th Cir. 2006) (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). The circumstances,
nature, and duration of the deprivations are critical in determining whether the conditions complained
of are grave enough to form the basis of a viable Eighth Amendment claim.” Johnson, 217 F.3d at 731.
At the pleading stage, the Court finds that Plaintiff has stated a claim against Defendants

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Emerson, Wilson, Wescoat, Valesco, Loflen, and Martines in their individual capacities. Plaintiff has
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alleged that each of these defendants did security counts that included Plaintiff’s cell, and walked
around puddles of water in Plaintiff’s housing unit. Plaintiff also verbally complained to these

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defendants of hazardous conditions. According to Plaintiff, his cell had obvious water running down
his cell walls, puddles of rain water pooling on the floor and in electrical light fixtures that posed a risk
of electrocution, and cell walls that visibly showed years of built-up mold, all posing obvious, serious
health and safety risks. Plaintiff also alleges that he suffered illnesses and injuries from the cell
conditions.
Plaintiff has also stated a claim against Defendant Doe 1 based on the allegations that he
reviewed Plaintiff’s request for services and refused to have Plaintiff transferred to a dry cell.
Plaintiff alleges that an uninhabitable cell emergency maintenance order sheet was delivered to
Defendant Marsh’s office and that around March 8, 2016, Defendant Marsh told Plaintiff that he had

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been aware of the conditions in Plaintiff’s cell for two years. This is sufficient to state a cognizable

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claim against Defendant Marsh.

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However, Plaintiff has not stated sufficient facts to show a cognizable claim for deliberate

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indifference against any other defendants. Plaintiff makes general, conclusory allegations that it was

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widely-known by officials that his cell conditions were hazardous, or that policies and procedures, if

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followed, would have or should have made officials aware of his cell conditions. Those generalized,

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conclusory statements are not sufficient to show the state of mind necessary to state a claim here.

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Plaintiff has not alleged any facts demonstrating that any other named defendant was aware of the
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conditions of which he complains.
Plaintiff has stated a condition of confinement claim against Defendants Emerson, Wilson,
Wescoat, Valesco, Loflen, Martines, Marsh, and Doe 1. Plaintiff has failed to allege any facts
sufficient to state a condition of confinement claim against any other named defendant.
D.

Conspiracy

Plaintiff brings a claim for conspiracy in violation of 42 U.S.C. § 1985(3). The Court shall
consider whether Plaintiff has alleged facts to state a conspiracy claim under either sections 1983 or

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1985(3).
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A conspiracy claim brought under Section 1983 requires proof of “an agreement or meeting of

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the minds to violate constitutional rights,” Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2001) (quoting
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United Steel Workers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1540–41 (9th Cir. 1989) (citation
omitted) ), and an actual deprivation of constitutional rights, Hart v. Parks, 450 F.3d 1059, 1071 (9th
Cir. 2006) (quoting Woodrum v. Woodward County, Okla., 866 F.2d 1121, 1126 (9th Cir. 1989) ).
“To be liable, each participant in the conspiracy need not know the exact details of the plan, but each
participant must at least share the common objective of the conspiracy.” Franklin, 312 F.3d at 441
(quoting United Steel Workers, 865 F.2d at 1541).
To state a claim under section 1985(3), a plaintiff must allege sufficient facts showing “a
deprivation of a right motived by ‘some racial, or perhaps otherwise class-based, invidiously
discriminatory animus behind the conspirators’ actions.’” RK Ventures, Inc. v. City of Seattle, 307

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F.3d 1045, 1056 (9th Cir. 2002) (quoting Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1536 (9th Cir.

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1992)). “‘The conspiracy . . . must aim at a deprivation of the equal enjoyment of rights secured by

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the law to all.’”

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Breckenridge, 403 U.S. 88, 102 (1971)) (emphasis omitted). “An indispensable element of a claim

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under 42 U.S.C. § 1985(3) is some racial, or perhaps otherwise class-based, invidiously discriminatory

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animus behind the conspirator’s action. . ..” Sprewell v. Golden State Warriors, 266 F.3d 979, 989

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(9th Cir.), opinion amended on denial of reh’g, 275 F.3d 1187 (9th Cir. 2001) (quoting Addisu v. Fred

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Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir.2000)). “A mere allegation of conspiracy without factual

Orin v. Barclay, 272 F.3d 1207, 1217 (9th Cir. 2001) (quoting Griffin v.

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specificity is insufficient” to state a claim. Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621,
626 (9th Cir. 1988).
Here, Plaintiff fails to state a claim under section 1985(3) as the second amended complaint is
devoid of any factual allegations that there was some racial or class-based discriminatory animus by
the defendants. Further, Plaintiff has not alleged sufficient facts to demonstrate that the defendants
had a meeting of the minds to violate Plaintiff’s constitutional rights.
The Court considers the factual allegations upon which Plaintiff alleges a conspiracy.

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Plaintiff alleges that in February 2016, Defendant Valesco told him that he would not move
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him to a dry available cell because many other cells are in the same condition. (Compl. 11.)
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Around March 6 or 7, 2016, Defendant Martines would not move him to a dry cell or “red
flag” his cell because Defendant Martines was not a regular in the housing unit. (Compl. 11-12.)
However, Plaintiff stated in a declaration on March 8, 2016, that Defendant Martines told him that “I
have no where [sic] to shelter house you right know [sic].” (ECF No. 43 at 31.)
Around May 6, 2016, Plaintiff gave Defendant Valesco a request form, (ECF No. 43 at 45),
which Defendant Valesco discussed with Doe 1. Defendant Valesco returned the form to Plaintiff and
refused to act or sign it. When Plaintiff asked the name of the sergeant, Defendant Valesco walked
away without answering.
The allegation that would support Plaintiff’s claim of a conspiracy alleges that on April 24,
2016, Defendant Marsh told inmate Gabriel Price that the housing sergeants had come to an agreement

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with Defendants Emerson, Wilson, Wescoat, Martines, and Valesco not to provide Plaintiff with an

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available dry cell. Plaintiff attaches the declaration of Gabriel Price to his second amended complaint.

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(ECF No. 43 at 42.) Gabriel Price’s declaration states, “On 4-24-16 3rd Watch c/o Carillo told me that

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they are not to move inmate Dillingham D4-237 to D4-225 because the sergeant(s) in D Yard Program

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Office do not want him in D4-225.” (Id.) However, the statement that the sergeant or sergeants did

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not want Plaintiff moved to cell D4-225 does not support a reasonable inference that there was a

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conspiracy not to provide Plaintiff with a dry cell. The reasonable interpretation would be that on one

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occasion, the sergeant did not want Plaintiff placed in cell D4-225 for an unknown reason and the
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lower ranking officers were following his direction. Further, another declaration states that Plaintiff
was not moved to cell 225 but other inmates. So, while the cell might have been available the
reasonable inference is that cell 225 was needed for other inmates.
The Court finds that Plaintiff’s allegation that Gabriel Price was told that the housing sergeants
had come to an agreement with the correctional officers not to provide him with a dry cell is
contradicted by the actual declaration of Gabriel Price. The court does not have to accept as true
allegations that exhibits to the complaint or that are merely conclusory, are unwarranted deductions of
fact, or unreasonable inferences. Sprewell, 266 F.3d at 988; Daniels-Hall v. Nat’l Educ. Ass’n, 629

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F.3d 992, 998 (9th Cir. 2010).
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Plaintiff here only makes conclusory allegations concerning his conspiracy allegations, stating
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that defendants conspired to maintain uninhabitable cell conditions, but the factual allegations are
insufficient to demonstrate that a conspiracy existed to deprive Plaintiff of a dry cell. Plaintiff’s
conclusion that the knowledge of his inadequate housing by each individual defendant and their failure
to provide him with a dry cell must be the result of a common conspiracy is insufficient to state a
claim for conspiracy. Specifically, as here where on two of the three occasions that Plaintiff requested
to be moved he was not provided with a dry cell because there were none available.
The Court finds that Plaintiff has failed to state a conspiracy claim against any defendant.
E.

Action for Neglect to Prevent

Plaintiff also brings a claim for neglect to prevent in violation of 42 U.S.C. § 1986. “Section

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1986 provides a cause of action against anyone who has ‘knowledge that any of the wrongs conspired

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to be done, and mentioned in section 1985 of this title, are about to be committed, and having the

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power to prevent or aid in preventing the commission of the same, neglects or refuses so to do.’” Park

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v. City of Atlanta, 120 F.3d 1157, 1159–60 (11th Cir. 1997) (quoting 42 U.S.C. § 1986). “Section

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1986 claims are therefore derivative of § 1985 violations.” Park, 120 F.3d at 1160. “The text of §

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1986 requires the existence of a § 1985 conspiracy.” Id.

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As Plaintiff has not stated any cognizable conspiracy claim under section 1985, he cannot state

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any claim for knowledge of and neglecting to prevent the conspiracy. Stephens v. Multnomah Cty. by
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& through Judicial Dep’t, 678 F. App’x 517, 519 (9th Cir. 2017) (“A claim can be stated under section

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1986 only if the complaint contains a valid claim under section 1985.”) (quoting Karim-Panahi, 839

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F.2d at 626.
F.

Retaliation

Plaintiff alleges that Defendants Ibarra, Loflen, Emerson, Wilson, Wescoat, Valesco, and
Martines retaliated against him by failing to move him to a dry cell and as a result Plaintiff filed
grievances against them. “Prisoners have a First Amendment right to file grievances against prison
officials and to be free from retaliation for doing so.” Watison v. Carter, 668 F.3d 1108, 1114 (9th
Cir. 2012) (citing Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009)). “Within the prison

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[pretrial] context, a viable claim of First Amendment retaliation entails five basic elements: (1) An
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assertion that a state actor took some adverse action against an inmate (2) because of (3) that
prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his First
Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.”
Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005).
Plaintiff has stated a retaliation claim against Defendant Wescoat based on the allegation that
Defendant Wescoat said he was aware that Plaintiff had filed inmate grievances and he was not going
to move Plaintiff or “red flag” his cell.
However, Plaintiff’s conclusory allegations that any other named defendant failed to move him
due to retaliation is insufficient to state a claim. Plaintiff has failed to allege facts to demonstrate that

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any other defendant was aware that Plaintiff had filed grievances and took adverse action against him

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due to that knowledge. Plaintiff has failed to state a retaliation claim against any other named

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defendant.

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G.

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Plaintiff brings a claim alleging premises liability under California law. The Government

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Claims Act requires that a tort claim against a public entity or its employees be presented to the

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California Victim Compensation and Government Claims Board no more than six months after the

State Law Claim

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cause of action accrues.1 Cal. Gov’t Code §§ 905.2, 910, 911.2, 945.4, 950, 950.2 (West 2011).
Presentation of a written claim, and action on or rejection of the claim are conditions precedent to suit.
Shirk v. Vista Unified Sch. Dist., 42 Cal.4th 201, 208-09 (Cal. 2007) as modified (Oct. 10, 2007)
superseded by statute on other grounds as recognized by Rubenstein v. Doe No. 1, 3 Cal.5th 903, 905
(2017), as modified on denial of reh’g (Nov. 1, 2017); State v. Superior Court of Kings Cnty. (Bodde),
32 Cal.4th 1234, 1239 (Cal. 2004); Mabe v. San Bernardino Cnty. Dep’t of Pub. Soc. Servs., 237 F.3d
1101, 1111 (9th Cir. 2001). To state a tort claim against a public employee, a plaintiff must allege

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compliance with the Government Claims Act. Shirk, 42 Cal.4th at 209; Bodde, 32 Cal.4th at 1239;
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Mangold v. California Pub. Utilities Comm’n, 67 F.3d 1470, 1477 (9th Cir. 1995); Karim, 839 F.2d at

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627.
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Plaintiff has not alleged compliance with the Government Claims Act, and, therefore fails to

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state a cognizable state law claim. The Court provides Plaintiff with the legal standard for premises
liability.
Under California law, “[p]remises liability is a form of negligence[.]” Brooks v. Eugene

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Burger Mgmt. Corp., 215 Cal. App.3d 1611, 1619 (1989); see also Wilson v. J.P. Allen Co., 57
F.Supp.3d 1249, 1253 (C.D. Cal. 2014) (“The same concepts of duty applicable to general negligence
claims apply to premises liability claims.”). “The owner of premises is under a duty to exercise
ordinary care in the management of such premises in order to avoid exposing persons to an
unreasonable risk of harm. A failure to fulfill this duty is negligence.” Brooks, 215 Cal.App.3d at

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1619 (quoting BAJI 8.00 (1983 rev.). Under California law “[t]he elements of a negligence cause of

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action are: (1) a legal duty to use due care; (2) a breach of that duty; (3) the breach was the proximate

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or legal cause of the resulting injury; and (4) actual loss or damage resulting from the breach of the

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duty of care.” Brown v. Ransweiler, 171 Cal.App.4th 516, 534 (2009); accord Carter v. Nat’l R.R.

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Passenger Corp., 63 F.Supp.3d 1118, 1144 (N.D. Cal. 2014); Wilson., 57 F.Supp.3d at 1253.

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Formerly known as the California Tort Claims Act. City of Stockton v. Superior Court, 42 Cal.4th 730, 741-42 (Cal.
2007) (adopting the practice of using Government Claims Act rather than California Tort Claims Act).

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To state a premises liability claim, the plaintiff must allege “that the defendant owned or
controlled the property, that the defendant was negligent in the use or maintenance of the property,
that the plaintiff was harmed, and that the defendant’s negligence was a substantial factor in causing
the harm.” Carter, 63 F.Supp.3d at 1144. “A person who owns or controls property is negligent if he
or she fails to use reasonable care to discover any unsafe conditions and to repair, replace, or give
adequate warning of anything that could be reasonably expected to harm others.”

Carter, 63

F.Supp.3d at 1144-45.

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The California Government Code provides that, other than certain exceptions, a public entity is
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not liable for injury to a prisoner due to a dangerous condition of public property. Cal. Gov. Code §
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844.6(a)(2) and (c). By enacting this statute, the Legislature intended that prisons be immune from
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claims by prisoners due to a dangerous condition of public property. Badiggo v. Cty. of Ventura, 207
Cal. App. 3d 357, 361 (1989). However, section 844.6 does not exonerate a public employee from
liability for an injury caused by his negligent act or omission. Cal. Gov. Code § 844.6(d).
Based on the foregoing, to state a claim for premises liability, the complaint must allege that an
official with control over the property was negligent in the use or maintenance of the property. Here,
Plaintiff alleges that the defendants were negligent by failing to repair the roof which allowed water to
leak into the building. However, while Plaintiff alleges that the correctional officer and sergeant
defendants were aware of the conditions, they would not have control over the property such that they
would be responsible for the failure to repair the roof to prevent leaks.

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H.

Leave to Amend

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Under Rule 15 of the Federal Rules of Civil Procedure leave to amend shall be freely given

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when justice so requires. Fed. R. Civ. P. 15(a)(2). In determining whether to grant leave to amend,

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the court considers five factors: “(1) bad faith; (2) undue delay; (3) prejudice to the opposing party; (4)

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futility of amendment; and (5) whether the plaintiff has previously amended his complaint.” Nunes v.

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Ashcroft, 375 F.3d 805, 808 (9th Cir. 2004).

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Here, Plaintiff was provided with leave to file an amended complaint and was advised that it

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was his final opportunity to amend. (Order Granting Pl. Leave to File Sec. Am. Compl. 3, ECF No.
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42.) Plaintiff had previously alleged claims of conditions of confinement in violation of the Eighth
Amendment, conspiracy, and action for neglect to prevent. Plaintiff was provided with the legal
standards that apply to these claims and has failed to correct the deficiencies identified for those
defendants against whom he has again failed to state a claim. Accordingly, the Court finds that it
would be futile to provide Plaintiff with further opportunity to amend his conditions of confinement,
conspiracy, and action for neglect to prevent claims. The Court recommends that the conspiracy and
action for neglect to prevent claims be dismissed without leave to amend and that Plaintiff’s

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conditions of confinement claim be dismissed as to Defendants Ibarra, Sherman and Kernan.
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Plaintiff has now alleged claims for retaliation and a state law claim for premises liability for
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which he has not previously been provided with the legal standards. Accordingly, the Court finds that
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it is appropriate to grant Plaintiff leave to file an amended complaint to cure the deficiencies identified
in these claims.
V.

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CONCLUSION

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For these reasons, IT IS HEREBY RECOMMENDED that:
1.

PREJUDICE;

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2.

Plaintiff’s conspiracy and action for neglect to prevent claims be DISMISSED
WITHOUT LEAVE TO AMEND;

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Plaintiff’s official capacity claim against Defendant Kernan be DISMISSED WITH

3.

This action proceed on Plaintiff’s claim against Defendants Emerson, Wilson, Wescoat,

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Valesco, Loflen, Martines, Marsh, and Doe 1, in their individual capacities, for

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conditions of confinement in violation of the Eighth Amendment; and against

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Defendant Wescoat for retaliation in violation of the First Amendment; and

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4.

Plaintiff be ordered to either notify the Court that he is willing to proceed on those
claims to be cognizable in the second amended complaint or to file a third amended

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complaint.1

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These findings and recommendations will be submitted to the United States District Judge
assigned to the case, pursuant to the provision of 28 U.S.C. §636 (b)(1)(B). Within thirty (30) days
after being served with these finding and recommendations, Plaintiff may file written objections with
the Court. The document should be captioned “Objections to Findings and 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, 838-39 (9th Cir. 2014) (citing Baxter v.

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Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.
Dated:

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February 11, 2019
UNITED STATES MAGISTRATE JUDGE

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Plaintiff is advised that this is not an order allowing an amended complaint to be filed. Should the district court adopt the
recommendations, Plaintiff will be granted leave to amend in the order adopting and provided with a deadline to file a third
amended complaint.

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