Cannon v. Daves et al

Filing 42

FINDINGS and RECOMMENDATIONS that Defendants' 21 Motion to Dismis be Denied in Part and Granted in Part; Objections Due in Fourteen Days; ORDER GRANTING Defendants' 21 Request for Judicial Notice; ORDER DENYING Plaintiff's 40 Motion to Appoint Counsel; ORDER DENYING 31 32 35 Motions for Extension as MOOT; ORDER that the Clerk Update Spelling of Defendants' Names signed by Magistrate Judge Jeremy D. Peterson on 2/28/2020. (Sant Agata, S)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9
10

KELVIN CANNON,

11
12
13
14
15

Plaintiff,
v.

Case No. 1:18-cv-00666-NONE-JDP
FINDINGS AND RECOMMENDATIONS
THAT DEFENDANTS’ MOTION TO
DISMISS BE DENIED IN PART AND
GRANTED IN PART

GALLAGHER, et al.,
ECF No. 21
Defendants.
OBJECTIONS DUE IN FOURTEEN DAYS

16

ORDER GRANTING DEFENDANTS’
REQUEST FOR JUDICIAL NOTICE

17

ECF No. 21-2

18

ORDER DENYING PLAINTIFF’S MOTION
TO APPOINT COUNSEL

19
20

ECF No. 40

21

ORDER DENYING MOTIONS FOR
EXTENSION AS MOOT

22

ECF Nos. 31, 32, and 35

23

ORDER THAT THE CLERK UPDATE
SPELLING OF DEFENDANTS’ NAMES

24
25

Plaintiff Kelvin Cannon is a state prisoner proceeding without counsel in this civil rights

26

action brought under 42 U.S.C. § 1983. Plaintiff’s central allegation is that defendants violated

27

his Eighth Amendment rights by allowing overly hot conditions of confinement, despite knowing

28

of his medically heightened sensitivity to heat. See generally ECF No. 1. On March 29, 2019,
1

1

we screened plaintiff’s complaint and found it to state an Eighth Amendment claim against fifteen

2

defendants. ECF No. 9. On May 1, 2019, the district judge adopted our finding, ruling that

3

“plaintiff has stated . . . conditions-of-confinement claims against defendants Kong, [Gonsalves],

4

Torres, Vang, Rocha, Perez, Curtis, Correctional Officer Gamboa, Flores, Brandon, Hernandez,

5

Podsakoff, Wilson, [Gallagher], and Shelby.” ECF No. 14 at 1.1

6

On September 5, 2019, defendants Vang, Torres, Flores, Gonsalves, and Wilson moved to

7

dismiss plaintiff’s claims against them under Federal Rule of Civil Procedure 12(b)(6). See ECF

8

No. 21. Defendants also moved to dismiss plaintiff’s claims for injunctive relief on the grounds

9

that plaintiff is no longer incarcerated at the prison where the alleged constitutional deprivations

10

occurred. Id. at 1. Plaintiff answered the motion, see ECF Nos. 34 and 39, and defendants

11

replied, see ECF No. 36. For the reasons described below, the court recommends that defendants

12

Vang, Torres, Flores, Gonsalves, and Wilson’s motion to dismiss the individual claims against

13

them be denied, and that the motion to dismiss the claims for injunctive relief be granted. We

14

also resolve miscellaneous pending motions.

15

MOTION TO DISMISS

16

A motion to dismiss brought under Rule 12(b)(6) tests the legal sufficiency of a claim, and

17

granting the motion is proper if there is no cognizable legal theory of liability or if insufficient

18

facts are alleged to support a cognizable theory. See Conservation Force v. Salazar, 646 F.3d

19

1240, 1241-42 (9th Cir. 2011). A court’s review is generally limited to the operative pleading.

20

See Daniels-Hall v. National Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010). A pleading is

21

sufficient under Rule 8(a)(2) if it contains “a short and plain statement of the claim showing that

22

the pleader is entitled to relief” that gives “the defendant fair notice of what the . . . claim is and

23

the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)

24

(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Additionally, a court must construe a pro se

25

litigant’s complaint liberally, see Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam), and

26
27
28

Plaintiff’s complaint appears to have spelled two of defendants’ names incorrectly. See ECF
No. 21 at 1, 2. For this reason, we ask the clerk of court to update the spelling of two defendants’
names so that they appear as “Gallagher” and “Gonsalves” on the docket.
2
1

1

may only dismiss such a complaint “if it appears beyond doubt that the plaintiff can prove no set

2

of facts in support of his claim which would entitle him to relief,” Hayes v. Idaho Corr. Ctr., 849

3

F.3d 1204, 1208 (9th Cir. 2017) (quoting Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014)).

4

1. Claims Against Defendants Vang, Torres, Flores, Gonsalves, and Wilson

5

The individual defendants make two arguments for why plaintiff’s complaint fails to state

6

a claim against them. First, defendants argue that “under Corcoran’s prison policy regarding

7

inmates taking heat-risk medications, Plaintiff was afforded all of the accommodations to which

8

he was entitled.” ECF No. 21-1 at 8. (Defendants attach a copy of the relevant prison heat plans

9

to their motion and ask us to take judicial notice of them, which we will do. See ECF No. 21-2.2)

10

Second, defendants argue that plaintiff’s allegations are too ambiguous to state a claim. See id. at

11

10-13.3

12

We recommend rejecting the first argument because it confuses the relevant standard: the

13

issue is plaintiff’s entitlement under the Constitution’s Eighth Amendment, not his rights under

14

prison policy. When we screen complaints brought under § 1983 or consider motions to dismiss

15

in the same context, the we ask whether the plaintiff has plausibly alleged that “there was a

16

deprivation of any rights, privileges, or immunities secured by the Constitution and laws” of the

17

United States. 42 U.S.C. § 1983 (emphasis added). The possibility that defendants complied

18

with a prison rule or that plaintiff misunderstood one might matter at a later stage of litigation.

19

But it does not bear on whether plaintiff has, at this early stage of the case, alleged a plausible

20

constitutional violation—especially because it is well accepted both that prison policies can

21

violate the Constitution and that temperature-related allegations can support a constitutional

22

claim. See, e.g., Wilson v. Seiter, 501 U.S. 294, 304 (1991) (“Some conditions of confinement

23

may establish an Eighth Amendment violation . . . when they have a mutually enforcing effect

24
On a motion to dismiss, a court “may take judicial notice of matters of public record outside the
pleadings.” MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986).
3
Defendants also argue that “[p]laintiff’s vague and conclusory allegations regarding unidentified
‘Second and Third Watch Defendants’ fail to link any specific defendant to the conduct alleged,
and thus fail to state a claim against any defendant.” ECF No. 21-1 at 10. As there are no Doe
defendants in this action, the court is not sure what relief defendants seek in making this
argument.
3
2

25
26
27
28

1

that produces the deprivation of a single, identifiable human need such as food, warmth, or

2

exercise—for example, a low cell temperature at night combined with a failure to issue

3

blankets.”); Keenan v. Hall, 83 F.3d 1083, 1091 (9th Cir. 1996) (“The Eighth Amendment

4

guarantees adequate heating.”).
Defendants’ second argument—that plaintiff’s allegations are simply too vague to state a

5
6

claim—invites us to reopen issues that we settled at screening.4 We decline the invitation. At

7

screening, we found that plaintiff “alleges that each defendant knew about plaintiff’s sensitivities

8

to heat but failed to provide him the full accommodations to which he was entitled and which

9

would have ensured his safety and comfort during periods when air temperatures in the prison

10

reached unsafely high levels.” ECF No. 9 at 7. On de novo review, the assigned district judge

11

adopted this finding in full. See ECF No. 14 at 2. Plaintiff’s complaint might lack the detail and

12

sophistication that we would expect from a document drafted by counsel. But, given our

13

obligation to construe pro se complaints liberally, we see no reason to abandon our prior finding

14

that the complaint sufficiently alleges that defendants “knew about plaintiff’s sensitivities to heat

15

but failed to provide him the full accommodations . . . which would have ensured his safety.”

16

ECF No. 9 at 7.5

17

2. Claims for Injunctive Relief

18

Finally, defendants argue that plaintiff’s demand for injunctive relief should be dismissed

19

because he is no longer housed at the prison where the alleged constitutional violations occurred.

20

We agree. When a prisoner challenges his conditions of confinement and seeks injunctive relief,

21

transfer to another prison renders the request for injunctive relief moot absent some evidence that

22

he expects to be transferred back. See Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991) (per

23

curiam); see also Andrews v. Cervantes, 493 F.3d.1047, 1053 n.5 (9th Cir. 2007). It is

24

appropriate for the court to resolve this issue on a motion to dismiss. See, e.g., Dearwester v.

25

4

26
27
28

At screening, we are required to “dismiss the complaint, or any portion of the complaint, if the
complaint . . . fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915A(b)(1).
A motion brought under Rule 12(b)(6) likewise asks us to consider whether there is a “failure to
state a claim upon which relief can be granted.”
5
The court also notes that the district judge’s order “granted leave to amend the complaint.” ECF
No. 14 at 2. Plaintiff may wish to amend and further refine certain factual allegations.
4

1

Sacramento Cty. Sheriff’s Dep’t, No. 2:13-CV-2064-MCE-DAD, 2015 WL 3705822, at *3 (E.D.

2

Cal. June 12, 2015). Plaintiff is now housed in Pelican Bay State Prison, but the alleged

3

constitutional deprivations occurred at Corcoran. The court can find no indication either in

4

plaintiff’s complaint or in his response to the instant motion that he expects a transfer back to

5

Corcoran. See ECF No. 39 at 6 (discussing injunctive relief in plaintiff’s response). We therefore

6

recommend that the court dismiss the claims for injunctive relief.

7

OTHER MOTIONS

8
9

Plaintiff has also filed a motion for counsel, arguing that he is unable to afford counsel,
suffers from a variety of disorders, and has limited access to the law library. ECF No. 40.

10

Plaintiff does not have a constitutional right to appointed counsel in this action, see Rand v.

11

Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds on reh’g en

12

banc, 154 F.3d 952 (9th Cir. 1998), and the court lacks the authority to require an attorney to

13

represent plaintiff, see Mallard v. U.S. District Court for the Southern District of Iowa, 490 U.S.

14

296, 298 (1989). This court may request the voluntary assistance of counsel. See 28 U.S.C. §

15

1915(e)(1); Rand, 113 F.3d at 1525. However, without a means to compensate counsel, we will

16

seek volunteer counsel only in exceptional circumstances. In determining whether such

17

circumstances exist, “the district court must evaluate both the likelihood of success on the merits

18

[and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the

19

legal issues involved.” Rand, 113 F.3d at 1525 (internal quotation marks and citations omitted).

20

We cannot conclude that exceptional circumstances requiring the appointment of counsel

21

are present here. At this stage in the proceedings, plaintiff has not demonstrated a likelihood of

22

success on the merits. And, while plaintiff’s allegations raise issues of some complexity, we are

23

not at a point where plaintiff is unable to articulate his claims. However, the court may revisit

24

this issue at a later stage of the proceedings if the interests of justice so require. If plaintiff later

25

renews his request for counsel, he should provide a detailed explanation of the circumstances that

26

he believes justify appointment of counsel. Accordingly, plaintiff’s motion for the appointment

27

of counsel, ECF No. 40, is denied without prejudice.

28

Finally, several pending motions for an extension remain on the docket. ECF Nos. 31, 32,
5

1

and 35. These motions are denied as moot.

2

ORDER

3

The court orders that:

4

1. Defendant’s request for judicial notice, ECF 21-2, is granted.

5

2. Plaintiff’s motion for the appointment of counsel, ECF No. 40, is denied.

6

3. The motions for an extension, ECF Nos. 31, 32, and 35, are denied as moot.

7

4. The clerk of court is ordered to change the spellings of “Gonzalves” and “Gallahger”

8

on the docket so that they appear “Gonsalves” and “Gallagher.”

9

FINDINGS AND RECOMMENDATIONS

10

We recommend that:

11

1. Defendants’ motion to dismiss, ECF No. 21, should be denied with respect to

12

individual defendants Vang, Torres, Flores, Gonsalves, and Wilson.
2. Defendants’ motion to dismiss, ECF No. 21, should be granted respect to plaintiff’s

13
14

claims for injunctive relief.

15

We submit the findings and recommendations to the district judge under 28 U.S.C.

16

§ 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court,

17

Eastern District of California. Within 14 days of the service of the findings and

18

recommendations, the parties may file written objections to the findings and recommendations

19

with the court and serve a copy on all parties. That document should be captioned “Objections to

20

Magistrate Judge’s Findings and Recommendations.” The district judge will review the findings

21

and recommendations under 28 U.S.C. § 636(b)(1)(C).

22
23

IT IS SO ORDERED.

24
Dated:
25

February 28, 2020
UNITED STATES MAGISTRATE JUDGE

26
27

No. 205.

28
6

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
7