Deere v. Unknown CDC - Employees Prison Law Offices

Filing 59

ORDER signed by Magistrate Judge Deborah Barnes on 1/2/2019 DENYING without prejudice 53 Motion to Amend; DENYING 54 Motion to Preserve Evidence; DENYING without prejudice 58 Motion for the Appointment of Counsel; and GRANTING 57 Motion for Extension of the Deadline to File Dispositive Motions. By 1/14/2019, parties to file any dispositive motions, as described in 29 Discovery and Scheduling order. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ARTHUR RAY DEERE, Sr.,

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No. 2:16-cv-1694 DB P

Plaintiff,
v.

ORDER

JOE LIZARRAGA, ,

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Defendant.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action under

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42 U.S.C. § 1983. Plaintiff alleges the air quality at Mule Creek State Prison (“MCSP”) was so

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poor that it worsened his Chronic Obstructive Pulmonary Disease (“COPD”) and his overall

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health. Before the court are plaintiff’s motions to amend the complaint, for the preservation of

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evidence, and for the appointment of counsel and defendant’s motion to extend the deadline for

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filing dispositive motions. For the reasons set out below, the court will deny the motions to

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amend, to preserve evidence, and for the appointment of counsel and grant the motion for an

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extension of time.

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BACKGROUND

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Plaintiff is currently incarcerated at the California Institution for Men. This case is

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proceeding on the Eighth Amendment claim in plaintiff’s second amended complaint. (ECF No.

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19.) Plaintiff alleges defendant Lizarraga, the warden at MCSP, was aware that plaintiff was a
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high risk medical inmate with chronic COPD and emphysema but nonetheless exposed plaintiff to

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hazardous materials, including dust, pollens, and asbestos. Plaintiff alleges he suffered daily

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asthma attacks and constant stress that aggravated his heart condition and that his lung condition

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worsened. The court found these allegations sufficient to state a claim that defendant was

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deliberately indifferent to plaintiff’s serious medical needs in violation of the Eighth Amendment.

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(See ECF No. 21.)

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On February 28, 2018, defendant filed an answer. (ECF No. 28.) On March 1, the court

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issued a Discovery and Scheduling Order, which set deadlines of June 22, 2018 for discovery and

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September 14, 2018 for pretrial motions. (ECF No. 29.) On August 21, 2018, the court granted

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plaintiff’s motion to re-open discovery and set new deadlines of October 8, 2018 for discovery

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and December 15, 2018 for pretrial motions. In addition, the court ordered defendants to respond

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to plaintiff’s interrogatories. (ECF No. 39.)

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On August 21, plaintiff filed a motion asking the court to have a sample of pollutants he

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submitted tested. (ECF No. 40). The court denied that motion. (ECF No. 50.) Plaintiff filed the

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present motions to amend and to preserve evidence on November 19. (ECF Nos. 53, 54.)

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Defendant opposes both motions. (ECF Nos. 55, 56.) On December 14, defendant moved for an

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extension of the deadline for filing dispositive motions. (ECF No. 57.) On December 26,

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plaintiff moved for the appointment of counsel. (ECF No. 58.)

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MOTION TO AMEND

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Plaintiff moves to amend the complaint to add the California Department of Corrections

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and Rehabilitation (“CDCR”) and 99 unnamed “Doe” defendants. (ECF No. 53.) He contends

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that CDCR and many others were aware of airborne hazards at MCSP and did nothing to prevent

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prisoners’ exposure to them.

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I.

Legal Standards
The Federal Rules provide that leave to amend pleadings “shall be freely given when

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justice so requires.” Fed. R. Civ. P. 15(a). “[T]his policy is to be applied with extreme

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liberality.” Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir.1990)

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(citing DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir.1987)). However, the
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Supreme Court has stated that a court may decline to grant leave for reasons that are apparent and

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stated on the record. Foman v. Davis, 371 U.S. 178, 182 (1962). Further, the court has

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“particularly broad” discretion where plaintiff has been granted leave to amend in the past.

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Chodos v. West Publ'g Co., Inc., 292 F.3d 992, 1003 (9th Cir. 2002) (citing Griggs v. Pace Am.

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Group, Inc., 170 F.3d 877, 879 (9th Cir. 1999)).

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The Ninth Circuit has interpreted the decision in Foman as identifying “four factors

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relevant to whether a motion for leave to amend the pleadings should be denied: undue delay, bad

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faith or dilatory motive, futility of amendment, and prejudice to the opposing party.” United

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States v. Webb, 655 F.2d 977, 980 (9th Cir. 1981). The factors do not carry equal weight.

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“[D]elay alone no matter how lengthy is an insufficient ground for denial of leave to amend.” Id.

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“Prejudice to the opposing party is the most important factor.” Jackson v. Bank of Hawai‘i, 902

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F.2d 1385, 1387 (9th Cir. 1990). “Absent prejudice, or a strong showing of any of the remaining

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Foman factors, there exists a presumption under Rule 15(a) in favor of granting leave to amend.”

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Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).

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Futility of an amendment can, standing alone, justify denial of a request to file an

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amended pleading. See Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995). A proposed

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amendment is futile if it presents no set of facts that would, even if proven, constitute a valid

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claim. See Miller v. Rykoff–Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988). The standard for

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assessing whether a proposed amendment is futile is therefore the same as the standard imposed

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under Federal Rule of Civil Procedure 12(b)(6). Id. In that analysis, the court reviews the

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complaint for “facial plausibility.” “A claim has facial plausibility when the plaintiff pleads

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factual content that allows the court to draw the reasonable inference that the defendant is liable

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for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of

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the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.

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Finally, any motion to amend the complaint must attach a copy of the amended complaint.

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E.D. Cal. R. 137(c). That amended complaint must explain the new claims against the new

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defendants by (a) identifying a person, (b) briefly describing what that person did or did not do,

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and (c) explaining why that person’s conduct violated plaintiff’s constitutional rights.
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II.

Analysis
Plaintiff contends CDCR and others were aware that airborne asbestos was a risk to

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prisoners at MCSP and failed to take appropriate precautions. (ECF No. 53.) Attached to

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plaintiff’s motion are documents he received from the Amador County Air District. Those

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documents show that from approximately 2014 through 2016 construction was conducted at

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MCSP. As part of that construction, a plan to mitigate asbestos dust was implemented. Plaintiff

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fails to explain why that mitigation plan was inadequate or how it shows that anyone failed to

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take reasonable precautions to prevent prisoners’ exposure to asbestos dust. Simply based on

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these documents, the court does not detect a cognizable claim under § 1983.

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In any event, plaintiff’s motion fails on other grounds. First, to the extent plaintiff is

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attempting to add CDCR as a defendant, he may not do so. The Eleventh Amendment bars suit

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against CDCR under § 1983. See Pennhurst State Sch. & Hospital v. Halderman, 465 U.S. 89,

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100 (1984). Second, plaintiff fails to provide a copy of a third amended complaint as required by

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the Local Rules. Third, plaintiff does not appear to identify potential defendants who would be

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subject to a § 1983 action. Plaintiff is reminded that the Civil Rights Act under which this action

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was filed provides for suit only against a “person” acting “under color of” state law. 42 U.S.C. §

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1983. See also Chudacoff v. Univ. Med. Ctr. of S. Nev., 649 F.3d 1143, 1149-50 (9th Cir. 2011)

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(setting forth elements of a § 1983 claim and describing instances in which a private actor's

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conduct constitutes state action); Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806,

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812 (9th Cir. 2010) (“The state-action element in § 1983 excludes from its reach merely private

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conduct, no matter how discriminatory or wrongful.” (citation and internal quotation marks

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omitted)); Williams v. Anderson, No. CIV S-11-0431 JAM CMK P, 2011 WL 2610528, at *1

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(E.D. Cal. Apr. 22, 2011) (an inmate is not a “state actor” for purposes of § 1983 unless he has

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conspired with state officials to deprive a plaintiff of his constitutional rights) (citing Price v.

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Hawaii, 939 F.2d 702, 707-08 (9th Cir. 1991) and Tower v. Glover, 467 U.S. 914, 920 (1984)),

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findings and recos. adopted, 2011 WL 2610397 (E.D. Cal. July 1, 2011). Plaintiff identifies no

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state actors as potential defendants. He simply surmises that state agencies and contractors may

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be involved.
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Finally, there is no provision in the Federal Rules of Civil Procedure for including

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unnamed defendants, also called “Doe” defendants, in a complaint. The use of Does in pleading

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practice is generally disfavored – but it is not prohibited. See Gillespie v. Civiletti, 629 F.2d 637,

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642 (9th Cir. 1980); Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999); Lopes v.

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Viera, 543 F. Supp. 2d 1149, 1152 (E.D. Cal. 2008). However, plaintiff must allege facts

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showing when, where, and how each Doe defendant violated his constitutional rights. See Addis

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v. Ariz. Dept. of Corrs., No. CV14-1115-PHX-DGC, 2015 WL 875233, at *3 (D. Ariz. Mar. 2,

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2015). Under § 1983, plaintiff must demonstrate that each defendant personally participated in

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

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words, there must be an actual connection or link between the actions of the defendants and the

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deprivation alleged to have been suffered by plaintiff. See Monell, 436 U.S. at 691, 695.

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Plaintiff fails to identify any specific action, or inaction, by any specific unnamed

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defendant. If he wishes to amend his complaint to allege claims against unnamed individuals, he

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must identify each individual (for example, by calling them Doe 1 and Doe 2) and explain what

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each one did. Further, plaintiff must make every effort to determine the identity of each

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defendant prior to seeking an amendment of the complaint.

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For these reasons, plaintiff’s motion to amend his complaint will be denied without

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prejudice to its renewal at a later date if plaintiff can resolve the problems with his current motion

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set out above.

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MOTION TO PRESERVE EVIDENCE
In this filing, plaintiff states that in 2014 he saw several piles of a white substance near

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MCSP that he now believes was asbestos. (ECF NO. 54.) Plaintiff asks the court to order MCSP

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to preserve these piles so that they can be tested to provide evidence in this case. Plaintiff is

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advised that where, as here, the court has identified potential claims at issue, the parties have a

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duty to preserve evidence that they “know or reasonably should know is relevant to the action.”

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In re Napster, Inc. Copyright Litig., 462 F.Supp.2d 1060, 1067 (N.D. Cal. 2006) (internal

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citations omitted); see also Alford v. Gyaami, No. 2:13-cv-2143 DAD P, 2014 WL 4988186, at

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*3 (E.D. Cal. Oct. 6, 2014) (same). No court order is required to trigger this duty. At this time,
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plaintiff has not made a showing that a specific preservation order is warranted. Accordingly, the

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court will deny plaintiff's motion as unnecessary.

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MOTION FOR THE APPOINTMENT OF COUNSEL

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Plaintiff seeks the appointment of counsel because he has been ill and does not have

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knowledge of the law. (ECF No. 58.)

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The United States Supreme Court has ruled that district courts lack authority to require

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counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490

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U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the

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voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d

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1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).

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The test for exceptional circumstances requires the court to evaluate the plaintiff’s likelihood of

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success on the merits and the ability of the plaintiff to articulate his claims pro se in light of the

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complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th

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Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances common to

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most prisoners, such as lack of legal education and limited law library access, do not establish

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exceptional circumstances that would warrant a request for voluntary assistance of counsel. In

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the present case, the court does not find the required exceptional circumstances.

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MOTION FOR EXTENSION OF DISPOSITIVE MOTION DEADLINE
Based on plaintiff’s motion to amend the complaint, defendant seeks an extension of the

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deadline for filing dispositive motions. (ECF No. 57.) The court finds defendant has shown good

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cause for an extension of that deadline.

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For the foregoing reasons, IT IS HEREBY ORDERED as follows:

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1. Plaintiff’s motion to amend (ECF No. 53) is denied without prejudice;

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2. Plaintiff’s motion to preserve evidence (ECF No. 54) is denied;

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3. Plaintiff’s motion for the appointment of counsel (ECF No. 58) is denied without

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prejudice; and

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4. Defendant’s motion for an extension of the deadline to file dispositive motions (ECF

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No. 57) is granted. By January 14, 2019, the parties shall file any dispositive motions,

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as described in the court’s order filed March 1, 2018.

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Dated: January 2, 2019

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DLB:9
DB/prisoner-civil rights/deer1694.mta

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