Stewart v. Smith et al

Filing 11

ORDER OF SERVICE. Dispositive Motion due by 4/5/2017. Signed by Judge Jon S. Tigar on January 3, 2017. (wsn, COURT STAFF) (Filed on 1/3/2017) (Additional attachment(s) added on 1/3/2017: # 1 Certificate/Proof of Service) (wsn, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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KENNETH E. STEWART,
Plaintiff,

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LAURIE SMITH, et al.,
Defendants.

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United States District Court
Northern District of California

ORDER OF SERVICE

v.

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Case No.16-cv-03977-JST

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INTRODUCTION

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Plaintiff, an inmate at San Quentin State Prison, filed this pro se civil rights action pursuant

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to 42 U.S.C. § 1983. Plaintiff is granted leave to proceed in forma pauperis in a separate order.

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His complaint is now before the Court for review under 28 U.S.C. § 1915A.
DISCUSSION

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A.

Standard of Review

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A federal court must engage in a preliminary screening of any case in which a prisoner

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seeks redress from a governmental entity, or from an officer or an employee of a governmental

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entity. 28 U.S.C. § 1915A(a). In its review, the Court must identify any cognizable claims, and

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dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may be

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granted, or seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C.

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§ 1915A(b) (1), (2). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police

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Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).

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Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Specific facts are not

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necessary; the statement need only ‘give the defendant fair notice of what the . . . . claim is and the

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grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted).

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“[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more

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than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not

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do. . . . Factual allegations must be enough to raise a right to relief above the speculative level.”

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Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). A complaint must

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proffer “enough facts to state a claim to relief that is plausible on its face.” Id. at 570.
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a

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right secured by the Constitution or laws of the United States was violated; and (2) that the
violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S.

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United States District Court
Northern District of California

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42, 48 (1988).

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B.

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Legal Claims
According to the complaint, Plaintiff was unlawfully detained in Santa Clara County Jail

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four days past his release date of February 25, 2016. Docket No. 1 at 4. Plaintiff was released on

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February 29, 2016, without being provided with mental health medication and without being

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provided food or shelter. Id. at 4. Plaintiff alleges that these acts caused him to suffer three

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psychotic breakdowns, each of which resulted in him being arrested. Id. Plaintiff alleges that

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these actions and inactions violated his rights under the Fifth Amendment, the Eighth Amendment,
and Fourteenth Amendment of the United States Constitution; Articles 3, 5, 7, and 26 of the
Universal Declaration of Human Rights (“Declaration”); and Sections 1, 7, 15, 17, 29 and 31 of
the California Constitution. Id. at 4–5. Plaintiff also alleges that his unlawful detention
constituted unlawful imprisonment. Plaintiff names as defendants Sheriff Laurie Smith, and Santa
Clara County Valley Medical Center Mental Health Supervisor George Centhaner. Id. at 2.

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Plaintiff seeks compensatory and punitive damages. Id. at 3.
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1.
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Federal Claims

Liberally construed, Plaintiff states a cognizable Eighth Amendment claim against
Defendants for releasing him without mental health medication. Wakefield v. Thompson, 177
F.3d 1160, 1164 (9th Cir. 1999) (Eighth Amendment requires “state [to] provide an outgoing

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prisoner who is receiving and continues to require medication with a supply sufficient to ensure

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that he has that medication available during the period of time reasonably necessary to permit him

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to consult a doctor and obtain a new supply”). However, Plaintiff’s allegation that he was not

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provided food and shelter upon his release from prison does not state a cognizable constitutional

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claim. There is no constitutional right to food and shelter upon one’s release from prison. This

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claim is DISMISSED with prejudice.
Liberally construed, Plaintiff’s allegation that he was detained beyond his release date

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states cognizable Eighth Amendment and Fourteenth Amendment claims against Sheriff Laurie
Smith.1 See Brass v. Cty. of Los Angeles, 328 F.3d 1192, 1200 (9th Cir. 2003) (prisoner “may
have had a due process right to be released within a reasonable time after the reason for his
detention ended”); Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985) (“Detention of

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Northern District of California

[plaintiff] beyond the termination of his sentence was undoubtedly punishment within the
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constitutional meaning of [the term cruel and unusual punishment]”). However, this allegation
fails to state a claim against George Centhaner, whom Plaintiff identifies as the Santa Clara
County Valley Medical Center (“SCCVMC”) Mental Health Supervisor. Plaintiff has made no
allegation from which it may be inferred that Centhaner participated in Plaintiff’s over-detention.
Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (individual liability under § 1983 arises only

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upon a showing of personal participation by the defendant); see also Avalos v. Baca, 596 F.3d

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583, 587 (9th Cir. 2010) (for liability to attach to prison official in his individual capacity, plaintiff

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must show that prison official personally participated in his over-detention or that it was the result

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of a pattern or custom on his part), Mortimer v. Baca, 594 F.3d 714, 722–23 (9th Cir. 2010) (in

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order for liability to attach to a prison official in his official capacity, plaintiff must show that his

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over-detention was the result of a set of policies — or lack of policies — that amounted to a policy

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of deliberate indifference).

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2.

State-law Claims

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Liberally construed, Plaintiff has stated a cognizable state law claim of false imprisonment.

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Plaintiff incorrectly argues that his over-detention also violated his due process rights under the
Fifth Amendment. The Due Process Clause of the Fifth Amendment applies to the federal
government while the Due Process Clause of the Fourteenth Amendment prohibits state action.
See Dusenbery v. United States, 534 U.S. 161, 167 (2002).
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Shoyoye v. Cty. of Los Angeles, 137 Cal. Rptr. 3d 839, 851 (Cal. Ct. App. 2012) (“‘The elements

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of a tortious claim of false imprisonment are: (1) the nonconsensual, intentional confinement of a

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person, (2) without lawful privilege, and (3) for an appreciable period of time, however brief.’”)

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(citing Easton v. Sutter Coast Hospital, 95 Cal. Rptr. 2d 316, 323 (Cal. Ct. App. 2000)).
Plaintiff also makes a general statement that Defendants have violated his rights under

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Sections 1, 7, 15, 17, 29 and 31 of Article 12 of the California Constitution. Docket No. 1 at 4–5.
Section 1 provides as follows:

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All people are by nature free and independent and have inalienable rights. Among these are
enjoying and defending life and liberty, acquiring, possessing, and protecting property, and
pursuing and obtaining safety, happiness, and privacy.

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United States District Court
Northern District of California

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Cal. Const. art. I, § 1. Plaintiff does not specify how Defendants have violated section 1, and his
allegations that Defendants overdetained him and failed to provide him with a sufficient supply of
medication, food, or shelter upon his release from prison fail to state cognizable claims for relief
under section 1. Moreover, “although safety and happiness are inalienable rights[, . . . n]o case

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has ever held that this provision . . . is self-executing in the sense that it gives rise, in and of itself,
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to a private right of action for damages or an affirmative duty on the part of the state to take
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particular steps to guarantee the enjoyment of safety or happiness by all citizens.” Clausing v. San
Francisco Unified Sch. Dist., 271 Cal. Rptr. 72, 79 n.6 (Cal. Ct. App. 1990). Accordingly,
Plaintiff’s claims based on section 1 are DISMISSED with prejudice.

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The Court liberally construes the complaint’s reference to sections 7 and 15 as alleging a

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violation of the due process clauses set forth in both sections.3 Plaintiff’s claims based on sections

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7 and 15 are DISMISSED with prejudice because there is no private right of action under either of

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these section. In Katzberg v. Regents of Univ. of Cal., 29 Cal. 4th 300, 303 (Cal. 2002), the

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California Supreme Court found that no precedential authority exists for recognizing a private

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Plaintiff does not specify to which article of the California Constitution he is referring. The
Court presumes that he is referring to Article 1 of the California Constitution. All subsequent
references to section numbers are to sections within Article 1 of the California Constitution.
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In addition to guaranteeing due process, section 7 also provides that a person may not be
deprived of life, liberty, or property without equal protection of the laws, and that citizens may not
be granted privileges or immunities that are not granted on the same terms to all citizens. Cal.
Const. art. I, § 7. Section 15 provides that a criminal defendant has the right to a speedy public
trial, to compel attendance of witnesses, to be personally present with counsel at his trial, and
against self-incrimination; and also prohibits double jeopardy. Cal. Const. art. I, § 15.
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right of action in damages for violations of section 7. Katzberg, 29 Cal. 4th at 324–29 (also noting

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the availability of meaningful alternative remedies). A private right of action in damages for

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violations of section 15 is precluded on the same grounds. See Reinhardt v. Santa Clara Cty., No.

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C 05-05143 HRL, 2006 WL 662741, at *8 (N.D. Cal. 2006) (applying analysis set forth in

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Katzberg and dismissing section 15 claim because section 15 “does not manifest an intent to

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include a damages remedy, and because there are adequate alternative forms of relief (habeas
corpus and the Bane Act)”) (also citing to Walker v. Cty. of Santa Clara, No. C 04-02211 RMW,
2005 WL 2437037 at *7 (N.D. Cal. 2005).
Plaintiff’s claim based on section 174 will also be DISMISSED with prejudice because

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there is also no precedential authority for recognizing a private right of action for damages under
this section. Giraldo v. California Dep’t of Corr. & Rehab., 85 Cal. Rptr. 3d 371, 388–91 (Cal. Ct.

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App. 2008) (applying analysis set forth in Katzberg).
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Plaintiff’s claim based on section 29 will be DISMISSED with prejudice because section
29 is inapplicable to Plaintiff’s case. Section 29 provides that “[i]n a criminal case, the people of
the State of California have the right to due process of law and to a speedy and public trial.” Cal.
Const. art. I, § 29. Plaintiff has not alleged that he failed to receive due process of law with
respect to his criminal case, or that he failed to receive a speedy or public trial.

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Finally, Plaintiff’s claim based on Section 31 will also be DISMISSED with prejudice

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because section 31 is inapplicable to Plaintiff’s case. Section 31 provides in relevant part that the

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state shall not discriminate on the basis of race, sex, color, ethnicity, or national origin in the

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operation of public employment, public education, or public contracting. Cal. Const. art. I, § 31.

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There are no allegations of discrimination in Plaintiff’s complaint and his allegations do not

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involve public employment, public education, or public contracting.

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3.

Universal Declaration of Human Rights Claims

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The United States Supreme Court has found that “the [Universal] Declaration [of Human

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Rights] does not of its own force impose obligations as a matter of international law.” Sosa v.

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Alvarez-Machain, 542 U.S. 692, 734 (2004). The Declaration is a “non-binding resolution[ ] of

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Section 17 of the California Constitution prohibits the infliction of cruel and unusual punishment
and the levying of excessive fines. Cal. Const. art. I, § 17.
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the General Assembly of the United Nations.” Siderman de Blake v. Republic of Arg., 965 F.2d

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699, 719 (9th Cir. 1992) (explaining that the resolution “creates legal obligations only insofar as it

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represents evidence of customary international law”). Therefore, the Declaration cannot by itself

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support creation of a cause of action. Sosa, 542 U.S. at 734‒38. Since this international

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instrument does not create a cause of action, Plaintiff’s claims under the Declaration fails to state a

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claim upon which relief may be granted, and are DISMISSED with prejudice. UMG Recordings,
Inc. v. Shelter Capital Partners, LLC, 718 F.3d 1006, 1014 (9th Cir. 2013) (dismissal can be based
on lack of cognizable legal theory).
CONCLUSION

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1.

Plaintiff has stated the following cognizable claims: an Eighth Amendment claim

against Defendants for releasing him without mental health medication; Eighth Amendment and
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United States District Court
Northern District of California

Fourteenth Amendment claims against Sheriff Laurie Smith for overdetention; and a state-law
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claim against Sheriff Laurie Smith for false imprisonment. The following claims are DISMISSED
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with prejudice: Plaintiff’s claim that his federal constitutional rights were violated when
Defendants failed to provide him with food and shelter upon his release from prison; Plaintiff’s

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claim that Centhaner over-detained Plaintiff; Plaintiff’s claims that his rights under the California

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Constitution were violated; and Plaintiff’s claims that his rights under the Universal Declaration of

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Human Rights were violated.

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2.

The Clerk of the Court shall issue summons and the United States Marshal shall

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serve, without prepayment of fees, a copy of the complaint (Docket No. 1), and a copy of this

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order upon Sheriff Laurie Smith at the Santa Clara County Jail, 55 Younger St., San Jose,

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CA and upon George Centhaner, Mental Health Supervisor at Santa Clara Valley Medical

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Center, 751 S Bascom Ave, San Jose, CA. The Clerk shall also mail a courtesy copy of the

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complaint and this order to the Santa Clara Office of the County Counsel at 70 West Hedding

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Street, East Wing, 9th Floor, San Jose, CA 95110.

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3.

In order to expedite the resolution of this case, the Court orders as follows:
a.

No later than 91 days from the date this order is filed, Defendants must file

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and serve a motion for summary judgment or other dispositive motion. A motion for summary

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judgment also must be accompanied by a Rand notice so that plaintiff will have fair, timely and
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adequate notice of what is required of him in order to oppose the motion. Woods v. Carey, 684

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F.3d 934, 939 (9th Cir. 2012) (notice requirement set out in Rand v. Rowland, 154 F.3d 952 (9th

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Cir. 1998), must be served concurrently with motion for summary judgment).5
If Defendants are of the opinion that this case cannot be resolved by summary judgment,

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Defendants must so inform the Court prior to the date the motion is due.
b.

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Plaintiff’s opposition to the summary judgment or other dispositive motion

must be filed with the Court and served upon Defendants no later than 28 days from the date the
motion is filed. Plaintiff must bear in mind the notice and warning regarding summary judgment
provided later in this order as he prepares his opposition to any motion for summary judgment.
c.

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Defendants shall file a reply brief no later than 14 days after the date the

opposition is filed. The motion shall be deemed submitted as of the date the reply brief is due. No
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United States District Court
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hearing will be held on the motion.
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Plaintiff is advised that a motion for summary judgment under Rule 56 of the

Federal Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you must
do in order to oppose a motion for summary judgment. Generally, summary judgment must be
granted when there is no genuine issue of material fact — that is, if there is no real dispute about
any fact that would affect the result of your case, the party who asked for summary judgment is

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entitled to judgment as a matter of law, which will end your case. When a party you are suing

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makes a motion for summary judgment that is properly supported by declarations (or other sworn

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testimony), you cannot simply rely on what your complaint says. Instead, you must set out

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specific facts in declarations, depositions, answers to interrogatories, or authenticated documents,

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as provided in [current Rule 56(c)], that contradict the facts shown in Defendants’ declarations and

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documents and show that there is a genuine issue of material fact for trial. If you do not submit

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your own evidence in opposition, summary judgment, if appropriate, may be entered against you.

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If Defendants assert that Plaintiff failed to exhaust his available administrative remedies as
required by 42 U.S.C. § 1997e(a), Defendants must raise such argument in a motion for summary
judgment, pursuant to the Ninth Circuit’s opinion in Albino v. Baca, 747 F.3d 1162 (9th Cir.
2014) (en banc) (overruling Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003), which held
that failure to exhaust available administrative remedies under the Prison Litigation Reform Act,
should be raised by a defendant as an unenumerated Rule 12(b) motion). Such a motion should
also incorporate a modified Wyatt notice in light of Albino. See Wyatt v. Terhune, 315 F.3d
1108, 1120, n.14 (9th Cir. 2003); Stratton v. Buck, 697 F.3d 1004, 1008 (9th Cir. 2012).
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If summary judgment is granted, your case will be dismissed and there will be no trial. Rand v.

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Rowland, 154 F.3d 952, 962–63 (9th Cir. 1998) (en banc) (App. A).6
5.

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All communications by Plaintiff with the Court must be served on Defendants’

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counsel by mailing a true copy of the document to Defendants’ counsel. The Court may disregard

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any document which a party files but fails to send a copy of to his opponent. Until Defendants’

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counsel has been designated, Plaintiff may mail a true copy of the document directly to
Defendants, but once Defendants are represented by counsel, all documents must be mailed to
counsel rather than directly to Defendants.
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Discovery may be taken in accordance with the Federal Rules of Civil Procedure.

No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local Rule 16 is required
before the parties may conduct discovery.

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7.
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Court informed of any change of address and must comply with the Court’s orders in a timely
fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant
to Federal Rule of Civil Procedure 41(b). Plaintiff must file a notice of change of address in every
pending case every time he is moved to a new facility.

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8.

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Plaintiff is cautioned that he must include the case name and case number for this

case on any document he submits to the Court for consideration in this case.

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Any motion for an extension of time must be filed no later than the deadline sought

to be extended and must be accompanied by a showing of good cause.

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Plaintiff is responsible for prosecuting this case. Plaintiff must promptly keep the

IT IS SO ORDERED.
Dated: January 3, 2017
______________________________________
JON S. TIGAR
United States District Judge

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The Rand notice does not excuse Defendants’ obligation to serve said notice again concurrently
with a motion for summary judgment. Woods, 684 F.3d at 939.
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