Ogelsby v. Department of Corrections et al

Filing 25

ORDER signed by Chief District Judge Kimberly J. Mueller on 9/7/2020 ADOPTING 20 Findings and Recommendations in full, DISMISSSING 16 Second Amended Complaint without prejudice. CASE CLOSED. (Coll, A)

Case 2:18-cv-00113-KJM-KJN Document 25 Filed 09/08/20 Page 1 of 2
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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JESSE FRANK OGLESBY,

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Plaintiff,

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No. 2:18-cv-0113 KJM KJN P

v.

ORDER

DEPARTMENT OF CORRECTIONS, et
al.,
Defendants.

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Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief

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under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided

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by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On September 23, 2019, the magistrate judge filed findings and recommendations, which

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were served on plaintiff and which contained notice to plaintiff that any objections to the findings

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and recommendations were to be filed within fourteen days. Plaintiff has filed objections to the

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findings and recommendations.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this

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court has conducted a de novo review of this case. Having reviewed the file, the court finds the

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findings and recommendations to be supported by the record and by the proper analysis.

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Case 2:18-cv-00113-KJM-KJN Document 25 Filed 09/08/20 Page 2 of 2
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In the process of reaching its conclusion, the court has carefully considered relevant

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authority with respect to slip and fall accidents in prisons. The magistrate judge quotes Pauley v.

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California, which found courts “have reached this conclusion [regarding prisoners failing to state

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a constitutional claim for slip and fall accidents], even where the hazard has existed, and been

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known to prison officials, for years, and where the prisoner was required to use the dangerous

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location, such as a bathroom.” Pauley v. California, 2018 WL 5920780, at *4–5 (E.D. Cal. Nov.

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13, 2018). As the court in Pauley noted, the Ninth Circuit has held “‘[s]lippery floors without

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protective measures could create a sufficient danger to warrant relief’ where the plaintiff has

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some known exacerbating condition.” Id., at *4 (quoting Frost v. Agnos, 152 F.3d 1124, 1129

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(9th Cir. 1998) (denying summary judgment with respect to the claim of an inmate who had a

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broken leg, that prison officials did not take necessary measures to protect him when he was

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injured multiple times after slipping in shower)). “While the Ninth Circuit has not provided

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further guidance on such additional requirement, a district court has concluded that ‘the risk of

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harm turns into a substantial risk of serious harm somewhere between a bare claim of a slippery

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floor and a claim of a hazard plus some known exacerbating condition.’” Id., at *5 (quoting

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Washington v. Sandoval, 2012 WL 987291, at *8 (N.D. Cal. Aug. 6, 2012)).

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As the finding and recommendations review, plaintiff has not pled facts similar to those

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underlying Pauley, Frost or Washington. The lack of “further guidance on such additional

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requirement”—a claim involving an “exacerbating condition”—is a question an appellate court

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may at some point clarify. But it does not allow plaintiff’s complaint to survive here.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed September 23, 2019, are adopted in full;

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2. Plaintiff’s second amended complaint is dismissed without prejudice; and

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3. The Clerk of the Court shall close this case.

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DATED: September 7, 2020.

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