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)

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Case 2:18-cv-00113-KJM-KJN Document 25 Filed 09/08/20 Page 1 of 2 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JESSE FRANK OGLESBY, 12 Plaintiff, 13 14 15 No. 2:18-cv-0113 KJM KJN P v. ORDER DEPARTMENT OF CORRECTIONS, et al., Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief 18 19 under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided 20 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 21 22 were served on plaintiff and which contained notice to plaintiff that any objections to the findings 23 and recommendations were to be filed within fourteen days. Plaintiff has filed objections to the 24 findings and recommendations. 25 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 26 court has conducted a de novo review of this case. Having reviewed the file, the court finds the 27 findings and recommendations to be supported by the record and by the proper analysis. 28 ///// 1 Case 2:18-cv-00113-KJM-KJN Document 25 Filed 09/08/20 Page 2 of 2 1 In the process of reaching its conclusion, the court has carefully considered relevant 2 authority with respect to slip and fall accidents in prisons. The magistrate judge quotes Pauley v. 3 California, which found courts “have reached this conclusion [regarding prisoners failing to state 4 a constitutional claim for slip and fall accidents], even where the hazard has existed, and been 5 known to prison officials, for years, and where the prisoner was required to use the dangerous 6 location, such as a bathroom.” Pauley v. California, 2018 WL 5920780, at *4–5 (E.D. Cal. Nov. 7 13, 2018). As the court in Pauley noted, the Ninth Circuit has held “‘[s]lippery floors without 8 protective measures could create a sufficient danger to warrant relief’ where the plaintiff has 9 some known exacerbating condition.” Id., at *4 (quoting Frost v. Agnos, 152 F.3d 1124, 1129 10 (9th Cir. 1998) (denying summary judgment with respect to the claim of an inmate who had a 11 broken leg, that prison officials did not take necessary measures to protect him when he was 12 injured multiple times after slipping in shower)). “While the Ninth Circuit has not provided 13 further guidance on such additional requirement, a district court has concluded that ‘the risk of 14 harm turns into a substantial risk of serious harm somewhere between a bare claim of a slippery 15 floor and a claim of a hazard plus some known exacerbating condition.’” Id., at *5 (quoting 16 Washington v. Sandoval, 2012 WL 987291, at *8 (N.D. Cal. Aug. 6, 2012)). 17 As the finding and recommendations review, plaintiff has not pled facts similar to those 18 underlying Pauley, Frost or Washington. The lack of “further guidance on such additional 19 requirement”—a claim involving an “exacerbating condition”—is a question an appellate court 20 may at some point clarify. But it does not allow plaintiff’s complaint to survive here. 21 Accordingly, IT IS HEREBY ORDERED that: 22 1. The findings and recommendations filed September 23, 2019, are adopted in full; 23 2. Plaintiff’s second amended complaint is dismissed without prejudice; and 24 3. The Clerk of the Court shall close this case. 25 DATED: September 7, 2020. 26 27 28 2

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