(PC) Lamarque v. Barcus et al

Filing 17

ORDER REQUIRING Plaintiff to Submit a Response; Thirty-Day Deadline signed by Magistrate Judge Jennifer L. Thurston on 10/4/2019. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PORFIRIO LAMARQUE,

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Plaintiff,

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v.

ORDER REQUIRING PLAINTIFF TO
SUBMIT A RESPONSE
(Doc. 16)

JIM BARCUS, et al,

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Case No.: 1:18-cv-01234 DAD JLT (PC)

THIRTY-DAY DEADLINE

Defendants.

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Plaintiff has filed a first amended complaint asserting claims against employees of the

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California Department of Corrections and Rehabilitation. (Doc. 16.) Generally, the Court is

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required to screen complaints brought by prisoners seeking relief against a governmental entity or

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

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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, or that seek monetary

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relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).

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“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall

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dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a

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claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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I.

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Pleading Standard
A complaint must contain “a short and plain statement of the claim showing that the pleader
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is 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 555 (2007)). Plaintiffs must set forth “sufficient factual matter, accepted as true, to

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state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678. Facial plausibility

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demands more than the mere possibility that a defendant committed misconduct and, while factual

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allegations are accepted as true, legal conclusions are not. Iqbal, 556 U.S. at 677-78.

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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 Hosp.

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Ass'n, 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

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

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

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Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987).

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Under section 1983 the plaintiff must demonstrate that each defendant personally

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

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This requires the presentation of factual allegations sufficient to state a plausible claim for relief.

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Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). Prisoners

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

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to have any doubt resolved in their favor, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010)

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(citations omitted), but nevertheless, the mere possibility of misconduct falls short of meeting the

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plausibility standard, Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.

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II.

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Plaintiff’s Allegations
At all times relevant to this action, plaintiff was a state inmate housed at California

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Substance Abuse Treatment Facility Prison (“CSATF”) in Corcoran, California. He names as

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defendants Jim Barcus, a supervisor with the Prison Industry Authority (“PIA”), an entity that

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contracts with the California Department of Corrections and Rehabilitation (“CDCR”) and that

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employs CDCR inmates; John Doe 1, a manager with the PIA; and John Doe 2, Superintendent of
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the PIA. Each of these individuals is sued in his individual capacity.

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Plaintiff’s allegations can be fairly summarized as follows:

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On January 10, 2017, plaintiff was working overtime in the PIA’s “peanut butter and

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jelly” factory, which is on CSATF grounds. Plaintiff took this position even though he was never

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offered training in that factory. The floor supervisor, Jim Barcus, ordered plaintiff to clean the big

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kettles with jelly in it, but another inmate yelled that one of the kettles was broken. Plaintiff

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reported this to Barcus, who told plaintiff to “quit fucking crying” and “the states to broke to fix

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things [sic].” When plaintiff asked, “what if I get hurt,” Barcus responded, “your [sic] a prisoner,

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your safety doesn’t matter.” Barcus also threatened plaintiff with job termination and a write-up

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for refusal to follow instructions on a job assignment. In light of these threats, plaintiff opened the

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lid of one of the kettles to clean it, whereupon the lid fell hard on plaintiff’s head causing

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significant injury. It was later discovered that the safety latch on this kettle was broken.

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Plaintiff accuses Barcus of deliberate indifference, and he accuses all of the defendants of

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violating state law by failing to enforce safety precautions, failing to perform safety inspections,

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and failing to train inmate workers. He seeks damages.

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III.

Discussion
“Under Color of State Law”

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A.

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Plaintiff brings this civil rights action against three individuals whom he identifies as

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private-employees of the PIA. In order to proceed against them, plaintiff argues that the PIA’s

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contract with the CDCR renders it a public entity and renders its employees public employees for

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purposes of this suit.

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To state a claim under section 1983, a plaintiff must allege that the deprivation of a right

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secured by the federal constitution or statutory law was committed by a person acting under color

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of state law. Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). “While generally not

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applicable to private parties, a § 1983 action can lie against a private party when he is a willful

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participant in joint action with the State or its agents.” Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th

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Cir. 2003).

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The PIA, sometimes known as “CALPIA,” is an entity within the CDCR that employs

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prisoners in agricultural and industrial positions. Cal. Gov’t Code §§ 12838(a), 12838.6 (West

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2018); Cal. Penal Code §§ 2701, 2805 (West 2018). Pursuant to this authority, the defendants

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named in this action appear to have been acting under color of state law at all times relevant to this

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action.

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B.

Eighth Amendment

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The Eighth Amendment prohibits the infliction of “cruel and unusual punishments.” U.S.

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Const. amend. VIII. The unnecessary and wanton infliction of pain constitutes cruel and unusual

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punishment prohibited by the Eighth Amendment. Whitley v. Albers, 475 U.S. 312, 319 (1986);

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Ingraham v. Wright, 430 U.S. 651, 670 (1977); Estelle v. Gamble, 429 U.S. 97, 105-06 (1976).

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The Eighth Amendment protects prisoners from inhumane conditions of confinement as

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well as inhumane methods of punishment. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir.

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2006). The prohibition against cruel and unusual punishment applies to all conditions within a

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prison, including work programs, medical care, housing facilities, security measures, etc. See,

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e.g., Rhodes v. Chapman, 452 U.S. 337, 344-47 (1981). To be actionable, a prison official’s

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conduct “must involve more than ordinary lack of due care for the prisoner’s interests or safety.”

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Whitley v. Albers, 475 U.S. 312, 319 (1986); see also Estelle v. Gamble, 429 U.S. 97, 104

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(1976); Wilson v. Seiter, 501 U.S. 294, 298-99 (1991) (“It is obduracy and wantonness, not

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inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and

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Unusual Punishments Clause, whether that conduct occurs in connection with establishing

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conditions of confinement, supplying medical needs, or restoring official control over a

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tumultuous cellblock”). “[D]eliberate indifference describes a state of mind more blameworthy

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than negligence.” Farmer v. Brennan, 511 U.S. 825, 835–36 & n. 4 (1994); Toguchi v. Chung,

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391 F.3d 1051, 1057 (9th Cir. 2004).

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An unsafe workplace alone does not equal a per se violation of the Eighth Amendment.

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See Osolinski v. Kane, 92 F.3d 934, 938 (9th Cir. 1996). In the context of prisoner working

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conditions, the Eighth Amendment is implicated only when a prisoner alleges that a prison

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official compelled him to “perform physical labor which [was] beyond [his] strength, endanger[ed
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his life] or health, or cause[d] undue pain.” Morgan, 465 F.3d at 1045, quoting Berry v. Bunnell,

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39 F.3d 1056 (9th Cir. 1994). Prison officials are liable for a prisoner’s workplace injury only if

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they were deliberately indifferent to a substantial risk of serious harm. Farmer, 511 U.S. at 837

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(“the official must both be aware of the facts from which the inference could be drawn that a

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substantial risk of harm exists, and he must also draw the inference”); see Wilson, 501 U.S. at

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298–99, 302–03 (the official must actually know of the risk yet fail to take reasonable measures

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to ensure the prisoner’s safety); see also LeMaire v. Mass, 12 F.3d 1444 (9th Cir. 1993). Even

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“[i]f a prison official should have been aware of the risk, but was not, then the official has not

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violated the Eighth Amendment, no matter how severe the risk.” Farmer, 511 U.S. at 834.
Although a prison official’s conduct need not have been undertaken for the purpose of

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causing an inmate harm before it violates the constitution, a “sufficiently culpable state of mind”

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requires that the conduct involve more than mere negligence. Farmer, 511 U.S. at 837, 847

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(nothing less than recklessness in the criminal sense, that is, subjective disregard of a risk of harm

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of which the actor is actually aware, satisfies the “deliberate indifference” element of an Eighth

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Amendment claim). If the risk of harm was obvious, the trier of fact may infer that a defendant

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knew of the risk, but obviousness per se will not impart knowledge as a matter of law. Id. at 840–

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Plaintiff accuses defendant Barcus of ordering him to clean multiple kettles despite having

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just been informed that one of the kettles was broken. When plaintiff expressed concern for his

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safety, Barcus responded, “your [sic] a prisoner, your safety doesn’t matter.” Though there is no

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allegation that Barcus knew how the kettle was broken, he refused to investigate to determine

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whether the kettle posed a substantial risk of harm. Thus, his statements support an inference, at

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least at this stage, that he was deliberately indifferent to a substantial risk of serious harm to

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plaintiff.

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C.

State Law Claims

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Plaintiff also brings state law claims against Barcus, Doe 1, and Doe 2 pursuant to

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California Government Code § 844.6(d) for negligence, willful negligence, gross negligence, and

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wanton misconduct. Plaintiff has properly alleged that he presented his claim to the California
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Victim Compensation and Government Claims Board before initiating this case. Munoz v.

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California, 33 Cal. App. 4th 1767, 1776 (1995); Willis v. Reddin, 418 F.2d 702, 704 (9th

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Cir.1969); Mangold v. California Public Utilities Commission, 67 F.3d 1470, 1477 (9th Cir.

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1995).

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Pursuant to 28 U.S.C. § 1367(a), in any civil action in which the district court has original

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jurisdiction, the district court “shall have supplemental jurisdiction over all other claims in the

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action within such original jurisdiction that they form part of the same case or controversy under

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Article III,” except as provided in subsections (b) and (c). “[O]nce judicial power exists under

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§ 1367(a), retention of supplemental jurisdiction over state law claims under 1367(c) is

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discretionary.” Acri v. Varian Assoc., Inc., 114 F.3d 999, 1000 (9th Cir. 1997).
A public employee is liable for injury “proximately caused by his negligent or wrongful

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act or omission.” Cal. Gov’t Code § 844.6(d). Under California law “[t]he elements of a

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

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

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resulting from the breach of the duty of care.” Brown v. Ransweiler, 171 Cal. App. 4th 516, 534

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(2009).

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Willful negligence “occurs when a person with no intent to cause harm intentionally

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performs an act so unreasonable and dangerous that he [or she] knows, or should know, it is

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highly probable that harm will result.” Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965,

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1017 (1993) (quotation omitted) (brackets in original).

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A claim of gross negligence requires “extreme conduct” that demonstrates either a “want

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of even scant care” or “an extreme departure from the ordinary standard of conduct.” City of

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Santa Barbara v. Superior Court, 41 Cal. 4th 747, 754 (2007) (internal citations omitted).

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Finally, “[w]illful or wanton misconduct is intentional wrongful conduct, done either with

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a knowledge that serious injury to another will probably result, or with a wanton and reckless

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disregard of the possible results.” Charpentier v. Von Geldern, 191 Cal.App.3d 101, 113 (1987)

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(quoting O'Shea v. Claude C. Wood Co., 97 Cal. App. 3d 903, 912 (1979)).

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Plaintiff alleges that each of the defendants had a duty to train inmates and/or conduct

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safety inspections and/or enforce safety precautions, and their failure to do so resulted in severe

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injury to plaintiff. At the pleading stage, these allegations are sufficient to proceed against Barcus.

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However, they are too vague and conclusory to proceed against John Doe 1 and John Doe 2

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because it is unclear in what capacity these defendants were responsible for training, conducting

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safety inspections, and/or enforcing safety precautions. The Court cannot not impute knowledge

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or duty to any of these individuals based solely on their titles.

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IV.

Conclusion

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Based on the foregoing, plaintiff’s first amended complaint states a cognizable Eighth

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Amendment claim and state law claims against defendant Barcus. No other claims are cognizable

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as pled.

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The Court will grant plaintiff an opportunity to file a second amended complaint. Noll v.

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Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). If plaintiff does not wish to amend, he may instead

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file a notice of voluntary dismissal, and the action then will be terminated by operation of law. Fed.

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R. Civ. P. 41(a)(1)(A)(i). Alternatively, plaintiff may forego amendment and notify the Court that

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he wishes to stand on his first amended complaint. See Edwards v. Marin Park, Inc., 356 F.3d 1058,

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1064-65 (9th Cir. 2004) (plaintiff may elect to forego amendment). If the last option is chosen,

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findings and recommendations will issue, plaintiff will have an opportunity to object, and the matter

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will be decided by a District Judge.

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If plaintiff opts to amend, he must demonstrate that the alleged acts resulted in a deprivation

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of his constitutional rights. Iqbal, 556 U.S. at 677-78. Plaintiff must set forth “sufficient factual

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matter . . . to ‘state a claim that is plausible on its face.’” Id. at 678 (quoting Twombly, 550 U.S. at

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555 (2007)). Plaintiff should note that although he has been granted the opportunity to amend his

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complaint, it is not for the purposes of adding new and unrelated claims. George v. Smith, 507 F.3d

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605, 607 (7th Cir. 2007). Plaintiff should carefully review this screening order and focus his efforts

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on curing the deficiencies set forth above.

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Finally, plaintiff is advised that Local Rule 220 requires that an amended complaint be

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complete without reference to any prior pleading. As a general rule, an amended complaint
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supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once an

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amended complaint is filed, the original complaint no longer serves a function in the case. Id.

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Therefore, in an amended complaint, as in an original complaint, each claim and the involvement

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of each defendant must be sufficiently alleged. The amended complaint should be clearly titled, in

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bold font, “Second Amended Complaint,” reference the appropriate case number, and be an original

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signed under penalty of perjury. Plaintiff’s amended complaint should be brief. Fed. R. Civ. P. 8(a).

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Although accepted as true, the “[f]actual allegations must be [sufficient] to raise a right to relief

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above the speculative level . . .” Twombly, 550 U.S. at 555 (citations omitted).

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Accordingly, the Court ORDERS that:

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1. Within thirty days from the date of service of this order, plaintiff must file either a

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second amended complaint curing the deficiencies identified by the Court in this

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order, a notice of voluntary dismissal, or a notice of election to stand on the

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complaint; and

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2. If plaintiff fails to file a second amended complaint or a notice in compliance with

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this Order, then the Court will recommend the action be dismissed, with prejudice,

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for failure to obey a court order.

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IT IS SO ORDERED.
Dated:

October 4, 2019

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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