Pennings v. Barrera et al

Filing 27

REPORT AND RECOMMENDATION re 12 MOTION to Dismiss for Failure to State a Claim Notice Of Motion And Motion To Dismiss Complaint filed by Stapleton, Benjamin. The Court recommends defendants Motion to Diss be granted in part and deni ed in part. Any party may file written objections with the court and serve a copy on all parties by 5/12/2017. Any reply to the objections shall be served and filed by 5/19/2017.Signed by Magistrate Judge Mitchell D. Dembin on 4/19/2017.(All non-registered users served via U.S. Mail Service)(dxj)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 OTONIEL TYLER PENNINGS, Plaintiff, 12 13 v. 14 BARRERA, et al., Defendants. 15 Case No.: 16cv582-JLS (MDD) REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE RE: MOTION TO DISMISS [ECF No. 12] 16 17 This Report and Recommendation is submitted to the United States 18 District Judge Janis L. Sammartino pursuant to 28 U.S.C. § 636(b)(1) and 19 Local Civil Rule 72.1(c) of the United States District Court for the Southern 20 District of California. 21 For the reasons set forth herein, the Court RECOMMENDS 22 Defendants’ Motion to Dismiss be GRANTED IN PART AND DENIED IN 23 PART. 24 25 I. PROCEDURAL HISTORY Plaintiff Otoñiel Tyler Pennings (“Plaintiff”) is a state prisoner 26 proceeding pro se and in forma pauperis. (ECF Nos. 1, 6). On March 7, 2016, 27 Plaintiff filed a complaint pursuant to 42 U.S.C. § 1983. (ECF No. 1). 1 16cv582-JLS (MDD) 1 Plaintiff’s complaint sets forth various claims against four named individuals 2 working at the George Bailey Detention Facility (“GBDF”) alleging that they 3 violated his civil rights by: (1) retaliating against him in violation of the First 4 Amendment; (2) imposing cruel and unusual conditions of confinement in 5 violation of the Eighth Amendment; (3) treating him inhumanely in violation 6 of the Fourteenth Amendment’s Equal Protection Clause; (4) failing to 7 provide Plaintiff his due process rights in violation of the Fourteenth 8 Amendment; (5) using excessive force against him; (6) assaulting and 9 battering him; (7) providing inadequate medical care; (8) providing negligent 10 medical care; and (9) intentionally inflicting emotional distress upon him. 11 (See id.). On October 12, 2016, Defendants Stapleton and Benjamin filed a 12 13 motion to dismiss some of the claims against them. (ECF No. 12). 14 Defendants contend that: (1) Plaintiff’s First Amendment retaliation claim 15 against Defendant Benjamin should be dismissed because Defendant 16 Benjamin did not “prevent[] Plaintiff from engaging in protected conduct[;]” 17 (2) Plaintiff’s Eighth Amendment claim against both Defendants should be 18 dismissed because Plaintiff did not allege that Defendants caused the 19 unsanitary living conditions; (3) Plaintiff’s denial of religious 20 accommodations claim should be dismissed because Plaintiff did not allege 21 “facts indicating that the responding defendants denied him the kosher 22 meals, or that they were necessary for him to practice” his religion;1 (4) 23 Plaintiff’s destruction of property claim against Defendant Stapleton must be 24 25 26 27 Defendants improperly construe Plaintiff’s Fourteenth Amendment Equal Protection Clause claim as a denial of religious accommodations claim under the First Amendment. 1 2 16cv582-JLS (MDD) 1 dismissed because “Plaintiff does not allege the absence of an administrative 2 remedy to challenge property destruction[;]” (5) Plaintiff’s intentional 3 infliction of emotional distress claim against Defendant Stapleton should be 4 dismissed because he does not allege extreme and outrageous conduct; and 5 (6) the state law claims should be dismissed as untimely. (ECF No. 12-1 at 3- 6 7). 7 On October 13, 2016, this Court ordered Plaintiff to file a Response in 8 Opposition to Defendants’ Motion to Dismiss on or before November 3, 2016, 9 and Defendants to file a reply on or before November 10, 2016. (ECF No. 13). 10 On November 2, 2016, Plaintiff requested a 90-day continuance to file his 11 opposition to Defendants’ motion to dismiss in a duplicative action. 12 (Pennings v. San Diego Sheriff’s Dep’t, et al., S.D. Cal. Civil Case No. 13 16cv2318-CAB-DHB, ECF No. 7). On January 10, 2017, District Judge 14 Bencivengo closed Plaintiff’s duplicative action and denied Plaintiff’s motion 15 for a continuance without prejudice to be re-filed in this case. (Id. at ECF No. 16 11). Plaintiff did not re-file the motion as directed, but the Court 17 nevertheless amended the briefing schedule and ordered Plaintiff to file a 18 Response in Opposition to Defendants’ Motion to Dismiss on or before 19 February 8, 2017, and Defendants to file a reply on or before February 15, 20 2017. (ECF No. 17). The Court granted Plaintiff one continuance and 21 ordered him to file a Response in Opposition to Defendants’ Motion to 22 Dismiss on or before March 16, 2017. (ECF Nos. 21, 22). On March 17, 2017, 23 the date of his signature, Plaintiff filed a Response in Opposition to 24 Defendants’ Motion to dismiss. (ECF No. 25). The Court will consider 25 Plaintiff’s opposition even though it was not timely filed. 26 27 Plaintiff opposes the motion to dismiss on the grounds that: (1) Defendant Benjamin retaliated against Plaintiff by ordering he be moved “to 3 16cv582-JLS (MDD) 1 a dirty, feces-covered cell, in a module used as ‘punishment[;]’’’ (2) Defendant 2 Stapleton intentionally inflicted emotional distress by calling Plaintiff 3 derogatory names and assaulting him because of his religion; and (3) his 4 state law claims are timely because he mailed his Complaint on February 26, 5 2016.2 (Id. at 5-9). 6 Defendants reply that Plaintiff’s Complaint should be dismissed 7 because: (1) Plaintiff failed to timely file his opposition; (2) Plaintiff provided 8 no proof that his Complaint was mailed on February 26, 2016; and (3) 9 Plaintiff’s Complaint “consist[s] of mere conclusions in the form of allegations 10 . . . . [that] fall woefully short of establishing a claim against Defendants for 11 any constitutional violation.” (ECF No. 26 at 2-5). II. 12 The facts are taken from Plaintiff’s Complaint and are not to be 13 14 BACKGROUND FACTS construed as findings of fact by the Court. 15 Plaintiff’s claims arise from a series of events that occurred while 16 Plaintiff was held at GBDF as a subpoenaed witness for an evidentiary 17 hearing in the criminal case of another state prisoner. (ECF No. 1 at 3). 18 Plaintiff was placed in an administrative segregation unit (“Module 5A”) and 19 immediately “noticed unconstitutional living conditions . . . and began the 20 ‘grievance process.’” (Id.). Plaintiff filed grievances alleging cruel and 21 unusual living conditions, lack of access to the law library and law books, 22 failure to provide three hours of recreation time, failure to provide a kosher 23 diet or religious services and reading material and that Defendants were 24 posting “excessive personal and private information” on cell doors. (Id. at 4). 25 26 27 Plaintiff’s opposition also includes several other claims that Defendants’ motion to dismiss do not challenge. 2 4 16cv582-JLS (MDD) 1 Plaintiff’s Complaint describes his claim in nine counts as follows: 2 In count one, Plaintiff contends that Defendants Barrera, Stapleton and 3 Benjamin violated his First Amendment right to freedom of speech by 4 retaliating against him for filing grievances. (Id. at 4-6). 5 In count two, Plaintiff contends that Defendants Barrera, Sanchez, 6 Stapleton and Benjamin imposed cruel and unusual conditions of 7 confinement in violation of the Eighth Amendment. (Id. at 7-8). 8 In count three, Plaintiff contends Defendants Barrerra and Sanchez 9 violated his equal protection rights when they treated him differently than 10 other inmates and made “racially insensitive slurs” targeted at his Jewish 11 faith. (Id. at 8-9). 12 In count four, Plaintiff contends that Defendants Benjamin, Barrera, 13 Sanchez and Stapleton violated his due process rights under the Fourteenth 14 Amendment. (Id. at 9; ECF No. 1-1 at 1). 15 In count five, Plaintiff contends that on November 17, 2014, Defendants 16 Benjamin, Stapleton, Barrera and Sanchez used excessive force upon him. 17 (ECF No. 1-1 at 1-3). 18 In count six, Plaintiff contends Defendants Barrera, Sanchez and 19 Stapleton assaulted and battered him during the excessive force incident 20 explained in count six. (Id. at 5). 21 In count seven, Plaintiff contends that he received inadequate medical 22 care from an unknown person treating Plaintiff’s injuries sustained during 23 the assault, battery and excessive force incident. (Id. at 5-6). 24 In count eight, Plaintiff contends that some unknown person committed 25 medical malpractice and was medically negligent when treating Plaintiff’s 26 injuries. (Id. at 6). 27 5 16cv582-JLS (MDD) 1 In count nine, Plaintiff contends Defendants Barrera, Sanchez, 2 Stapleton and Benjamin intentionally inflicted emotional distress upon 3 Plaintiff. (Id.). 4 5 III. STANDARD OF REVIEW “A Rule 12(b)(6) motion tests the legal sufficiency of a claim.” Navarro 6 v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “Under Federal Rule of Civil 7 Procedure 8(a)(2), a pleading must contain a short and plain statement of the 8 claim showing that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 9 U.S. 662, 677-78 (2009) (internal quotations omitted). The pleader must 10 provide the Court with “more than an unadorned, the-defendant-unlawfully- 11 harmed-me accusation.” Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. 12 Twombly, 550 U.S. 544, 555 (2007)). “Threadbare recitals of the elements of 13 a cause of action, supported by mere conclusory statements, do not suffice.” 14 Iqbal, 556 U.S. at 678. “Although for the purposes of a motion to dismiss [a 15 court] must take all of the factual allegations in the complaint as true, [a 16 court is] not bound to accept as true a legal conclusion couched as a factual 17 allegation.” Iqbal, 556 U.S. at 678 (internal quotations omitted). 18 A pro se pleading is construed liberally on a defendant’s motion to 19 dismiss for failure to state a claim. Thompson v. Davis, 295 F.3d 890, 895 20 (9th Cir. 2002) (citing Ortez v. Washington Cnty. Oregon, 88 F.3d 804, 807 21 (9th Cir. 1996)). The pro se pleader must still set out facts in his complaint 22 that bring his claims “across the line from conceivable to plausible.” 23 Twombly, 550 U.S. at 570. A court “may not supply essential elements of the 24 claim that were not initially pled.” Ivey v. Bd. of Regents, 673 F.2d 266, 268 25 (9th Cir. 1982). A pro se litigant is entitled to notice of the deficiencies in the 26 complaint and an opportunity to amend, unless the complaint’s deficiencies 27 6 16cv582-JLS (MDD) 1 cannot be cured by amendment. See Noll v. Carlson, 809 F.2d 1446, 1448 2 (9th Cir. 1987). IV. 3 DISCUSSION The Court will only address challenged claims brought against 4 5 Defendants Benjamin and Stapleton. Those claims are: (1) count one, First 6 Amendment retaliation against Defendant Benjamin; (2) count two, Eighth 7 Amendment cruel and unusual punishment against both Defendants; (3) 8 count three, Fourteenth Amendment violation of the Equal Protection Clause 9 against Defendant Benjamin; (4) count four, Fourteenth Amendment 10 violation of due process against Defendant Stapleton; (5) count nine, 11 intentional infliction of emotional distress against Defendant Stapleton; and 12 (6) the timeliness of Plaintiff’s state law claims. (See ECF Nos. 1, 12-1). 13 A. 14 First Amendment Retaliation Claim In count one, Plaintiff alleges that Defendant Benjamin retaliated 15 against Plaintiff in violation of the First Amendment for filing grievances. 16 (ECF No. 1 at 4). Plaintiff alleges that Defendant Benjamin was in charge of 17 the grievances filed in Plaintiff’s housing unit and was required to respond, 18 process, investigate and resolve grievances, or forward them to someone who 19 could address and resolve the grievances. (Id. at 4). 20 After Plaintiff began filing grievances, Defendant Benjamin “came to 21 Plaintiff’s cell screaming to stop filing grievances and if not, she would have 22 him moved to module 5C” where mentally ill inmates are housed and 23 explained that no grievance would fix the inadequate living conditions. (Id. 24 at 5). Plaintiff continued to file grievances and began helping other inmates 25 file grievances. (Id.). In retaliation, Defendant Benjamin instructed others 26 to move Plaintiff to Module 5C. (Id.). Module 5C “had a constant smell of 27 7 16cv582-JLS (MDD) 1 feces coming out of the ventilation system and continued banging noises.” 2 (Id.). Plaintiff filed a retaliation grievance against Defendant Benjamin for 3 4 moving him to Module 5C, alleging he was moved “for the sole purpose of 5 separating Plaintiff from other inmates he had been assisting with their 6 grievances and to deter Plaintiff and other inmates from continuing to 7 redress their grievances” and alleging that Defendant Benjamin refused to 8 log inmate grievances. (Id.). Defendants assert that count one must be dismissed because Plaintiff 9 10 did not allege that Defendant Benjamin’s conduct was retaliatory, her alleged 11 conduct did not prevent Plaintiff from filing grievances and there is no due 12 process right for prisoners to file grievances.3 (ECF No. 12-1 at 3-4). The First Amendment protects against “deliberate retaliation” by prison 13 14 officials against an inmate’s exercise of his right to petition for redress of 15 grievances. Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 16 1989). Such conduct is actionable even if it would not otherwise rise to the 17 level of a constitutional violation because retaliation by prison officials may 18 chill an inmate’s exercise of legitimate First Amendment rights. Thomas v. 19 Carpenter, 881 F.2d 828, 830 (9th Cir. 1989). A prisoner suing prison officials 20 for retaliation must allege that he was retaliated against for exercising his 21 constitutional rights and that the retaliatory action did not advance 22 legitimate penological goals. Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 23 24 25 26 27 Plaintiff also alleges Defendant Stapleton acted in retaliation, however Defendants did not respond to Plaintiff’s allegation that Defendant Stapleton destroyed Plaintiff’s property in retaliation for filing grievances. (See ECF No. 12-1). 3 8 16cv582-JLS (MDD) 1 1995); Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994); Rizzo v. 2 Dawson, 778 F.2d 527, 532 (9th Cir. 1985). 3 In Rhodes v. Robinson, the Ninth Circuit set forth five basic elements of 4 a viable claim of First Amendment retaliation: “(1) [a]n assertion that a state 5 actor took some adverse action against an inmate (2) because of (3) that 6 prisoner’s protected conduct, and that such action (4) chilled the inmate’s 7 exercise of his First Amendment rights, and (5) the action did not reasonably 8 advance a legitimate correctional goal.” Brodheim v. Cry, 584 F.3d 1262, 9 1269 (9th Cir. 2009) (citing Rhodes v. Robinson, 408 F.3d 559, 567-68 n.11 10 (9th Cir. 2005)). 11 1. Adverse Action Against an Inmate 12 The first element of the Rhodes pleading standard requires Plaintiff to 13 make an assertion that a state actor took some adverse action against him. 14 Rhodes, 408 F.3d at 567-68. Plaintiff contends that Defendant Benjamin 15 threatened to move Plaintiff to Module 5C if he continued to file grievances 16 and later ordered Plaintiff be moved as a specific consequence of his 17 continued filing of grievances. (ECF No. 1 at 5). The cell Plaintiff was placed 18 in was dirty and covered in feces. (ECF No. 25 at 5). Plaintiff also alleges 19 that Defendant Benjamin retaliated by “refus[ing] to correctly process all . . . 20 grievances.” (ECF No. 1 at 5); (see also ECF No. 25 at 6). 21 The threat that Defendant Benjamin made and the later move to 22 Module 5C, which Plaintiff characterized as a less desirable living situation, 23 provide sufficient facts to allege the required adverse action. See Watison v. 24 Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) (“[T]he mere threat of harm can 25 be adverse action . . . .”); Brodheim v. Cry, 584 F.3d 1262, 1270 (9th Cir. 2009) 26 (allowing a retaliation claim to proceed when a grievance decider made an 27 implicit threat of retaliation regarding use of the grievance process); Puckett 9 16cv582-JLS (MDD) 1 v. Sweis, No. 2:15-cv-0602-AC P, 2016 WL 632795, at *4 (E.D. Cal. Feb. 16, 2 2016) (“[A]t the pleading stage, ‘allegations of harm [are] sufficient to ground 3 a First Amendment retaliation claim without discussing whether that harm 4 had a chilling effect.”); Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004) 5 (retaliatory placement in administrative segregation for filing grievances is 6 an adverse action); Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995) 7 (retaliatory prison transfer and double-cell status in retaliation constitutes 8 adverse action). Defendant Benjamin’s alleged failure to properly process 9 grievances also satisfies the first element of the Rhodes pleading standard. 10 Harbridge v. Schwarzenegger, No. CV 07-4486-GW(SH), 2009 U.S. Dist. 11 LEXIS 129379, at *36 (C.D. Cal. Aug. 13, 2009) (finding that the plaintiff 12 satisfied element one of the Rhodes standard where he alleged that his 13 prisoner grievances were not properly processed and his complaints were not 14 adequately investigated). Accordingly, the first element of the Rhodes 15 pleading standard is met. See Rhodes, 408 F.3d at 568 (arbitrary confiscation 16 and destruction of property and initiation of prison transfer are adverse 17 actions). 18 2. Because of 19 The second element of the Rhodes pleading standard requires Plaintiff 20 to make an assertion that a state actor took some adverse action against an 21 inmate because he exercised his First Amendment right. Rhodes, 408 F.3d at 22 567-68. Plaintiff alleges he was moved to Module 5C at the behest of 23 Defendant Benjamin and that his grievances were not properly processed 24 “because not only did Plaintiff continue to file grievances, but started 25 assisting other inmates to file their grievances.” (ECF No. 1 at 5; see ECF 26 No. 25 at 6). Plaintiff also contends Defendant Benjamin had him moved “for 27 the sole purpose of separating Plaintiff from other inmates he had been 10 16cv582-JLS (MDD) 1 assisting with their grievances and to deter Plaintiff and other inmates from 2 continuing to redress their grievances.” (ECF No. 1 at 5). Therefore, Plaintiff 3 satisfies the second element of the Rhodes pleading standard. 4 3. Prisoner’s Protected Conduct 5 The third element of the Rhodes pleading standard requires Plaintiff to 6 show he exercised protected conduct. Rhodes, 408 F.3d at 567-68. Plaintiff 7 alleges that Defendant Benjamin’s actions “violated Plaintiff’s First 8 Amendment Rights by preventing an avenue to seek actual relief for his 9 grievances.” (ECF No. 1 at 6). This satisfies the third element of the Rhodes 10 pleading standard. See Rhodes, 408 F.3d at 567 (“of fundamental import to 11 prisoners are their First Amendment ‘right[s] to file prison grievances’”). 12 4. 13 The fourth Rhodes pleading standard element requires Plaintiff to show 14 that the harm chilled the exercise of his First Amendment right. Rhodes, 408 15 F.3d 567-68. A plaintiff is not required to allege “a total chilling of his First 16 Amendment rights to file grievances and to pursue civil rights litigation in 17 order to perfect a retaliation claim. Speech can be chilled even when not 18 completely silenced.” Id. at 568 (emphasis in original). The Court must ask 19 “whether an official’s acts would chill or silence a person of ordinary firmness 20 from future First Amendment activities.” Mendocino Envtl. Ctr. v. 21 Mendocino County, 192 F.3d 1283, 1300 (9th Cir. 1999) (internal citations 22 and quotations omitted). 23 Chilled First Amendment Rights Defendants contend that “the complaint does not allege facts that 24 demonstrate Benjamin’s alleged conduct prevented Plaintiff from using the 25 grievance process, thereby having a chilling effect on his First Amendment 26 rights. To the contrary, Plaintiff admits he continued to file grievances and 27 assisted other inmates in filing grievances as well.” (ECF No. 12-1 at 4). 11 16cv582-JLS (MDD) 1 Defendants are incorrect. The face of Plaintiff’s Complaint alleges that 2 his First Amendment rights were chilled. (ECF No. 1 at 5). Plaintiff 3 specifically alleges that Defendants retaliated against him for the sole 4 purpose of “deter[ring] Plaintiff and other inmates from continuing to redress 5 their grievances.” (Id.). Plaintiff’s admission that he continued to file 6 inmate grievances even after Defendants retaliated against him does not 7 negate a chilling effect. See Rhodes, 408 F.3d at 568-69 (rejecting argument 8 that inmate failed to state retaliation claim where, after alleged adverse 9 action, plaintiff nonetheless had been able to file inmate grievances and a 10 lawsuit); see also Martinez v. Muniz, No. 14-cv-03753-HSG (PR), 2016 WL 11 3208398, at *13 (N.D. Cal. June 10, 2016) (finding that a plaintiff’s continued 12 filing of inmate appeals does not negate the existence of a chilling effect). 13 Transferring an inmate to a less desirable living situation and improperly 14 handling grievances would “chill or silence a person of ordinary firmness.” 15 Mendocino Evtl. Ctr., 192 F.3d at 1300. Therefore, Plaintiff satisfies the 16 fourth element of the Rhodes pleading standard despite the fact Plaintiff 17 continued to file inmate appeals because the chilling effect need not be so 18 great as to totally silence the inmate. 19 20 21 5. Action Did Not Reasonably Advance a Legitimate Correctional Goal The fifth and final element of the Rhodes pleading standard requires 22 Plaintiff to make an assertion that Defendant Benjamin’s actions did not 23 advance a legitimate correctional goal. Id. at 567-68. Plaintiff’s Complaint 24 alleges that Defendant Benjamin told Plaintiff “no grievance will fix the 25 problems with [the] inadequate living conditions.” (ECF No. 1 at 5). This 26 suggests that Defendant Benjamin retaliated against Plaintiff because his 27 grievance efforts would be futile, not to support legitimate penological 12 16cv582-JLS (MDD) 1 interests. The Court construes Plaintiff’s allegations to allege that Defendant 2 Benjamin’s conduct was “arbitrary and capricious” rather than actions that 3 advance legitimate goals of the correctional institution that were narrowly 4 tailored to achieve such goals. See Rizzo, 778 F.2d at 532 (finding that the 5 plaintiff alleged that the defendants’ actions were retaliatory and arbitrary 6 and capricious, showing that they did not serve any legitimate correctional 7 goal). Accordingly, Plaintiff satisfies the fifth element of the Rhodes pleading 8 standard. 6. 9 Conclusion 10 Plaintiff’s Complaint satisfies the Rhodes pleading standard. The 11 Court, therefore, RECOMMENDS that Defendants’ Motion to Dismiss count 12 one of Plaintiff’s Complaint (First Amendment Retaliation) as to Defendant 13 Benjamin be DENIED. 14 B. Eighth Amendment Unsanitary Living Conditions On October 14, 2014, Plaintiff was transferred to GBDF and ultimately 15 16 placed in Module 5C at Defendant Benjamin’s order.4 (ECF No. 1 at 7). 17 Module 5C houses inmates with serious mental health issues “who are known 18 19 20 21 22 23 24 25 26 27 Plaintiff also alleges that he was transferred to the San Diego Central Jail on October 13, 2014, where San Diego Sheriff’s Deputies warned him that his life would “be made as ‘miserable as possible’” and placed him in “an extremely dirty and unsanitary cell that had trash and feces spread all over the cell. (ECF No. 1 at 7). Plaintiff complained to the Sheriff’s Deputies for four hours before he was moved to a clean cell. (Id.). The Court notes that Plaintiff’s alleged unsanitary living conditions at the San Diego Central Jail are not at issue in this case. (See id.). Plaintiff’s Complaint does not name any Defendants employed at the San Diego Central Jail and does not allege that the named Defendants were responsible for the living conditions at the San Diego Central Jail. (See id. at 2-3). Accordingly, the Court will only analyze the alleged unsanitary living conditions at GBDF. 4 13 16cv582-JLS (MDD) 1 to throw feces and continuously bang on their cell doors and toilets at all 2 hours of the day.” (Id. at 5). Plaintiff alleges that Module 5C’s living 3 conditions were unconstitutional because of the “constant smell of feces 4 coming out of the ventilation system[,] . . . continued banging noises” and 5 because the cell was covered in feces. (Id. at 5, 7; ECF No. 25 at 5). Plaintiff 6 asserts that Defendants Benjamin and Stapleton were aware of the 7 unsanitary living conditions and that Defendant Stapleton was blatantly 8 indifferent to Plaintiff’s complaints of unsanitary living conditions. (ECF No. 9 1 at 7). Defendants argue that Plaintiff’s facts do not show that either 10 Defendant Stapleton or Defendant Benjamin caused “any of these alleged 11 experiences or conditions.” (ECF No. 12-1 at 6). 12 The Eighth Amendment provides that prison conditions must not 13 amount to cruel and unusual punishment. U.S. CONST. amend. VIII. “The 14 Constitution does not mandate comfortable prisons, but neither does it 15 permit inhumane ones.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) 16 (internal quotations and citations omitted). Prison officials must provide 17 inmates with the basic necessities of life, such as food, clothing, shelter, 18 sanitation, medical care and personal safety. Id. at 832. A successful 19 conditions of confinement claim must show that (1) the deprivation of the 20 basic necessities of life is, objectively, sufficiently serious; and (2) the prison 21 official acted with deliberate indifference. Id. at 834. Deliberate indifference 22 exists where an “official knows of and disregards an excessive risk to inmate 23 health or safety; the official must both be aware of the facts from which the 24 inference could be drawn that a substantial risk of harm exists, and he must 25 also draw the inference.” Id. at 837. 26 27 “Filthy conditions can infringe on an inmate’s basic human need for sanitary living conditions.” Carr v. Tousley, No. CV-06-0125SJLQ, 2009 WL 14 16cv582-JLS (MDD) 1 1514661, at *22 (D. Idaho, May 27, 2009); see Anderson v. County of Kern, 45 2 F.3d 1310, 1314, as amended, 75 F.3d 448 (9th Cir. 1995) (“[A] lack of 3 sanitation that is severe or prolonged can constitute an infliction of pain 4 within the meaning of the Eighth Amendment.”). Courts have recognized 5 that proof of conditions similar to those alleged by Plaintiff may be sufficient 6 to establish an Eighth Amendment claim. Cagle v. Gravlin, No. 9:09-CV- 7 0648, 2010 WL 2088267, at *6 (N.D.N.Y. Apr. 29, 2010) (Lowe, M.J.) (finding 8 the plaintiff’s allegations that he was subjected to feces on the wall and gate 9 sufficient to plausibly suggest that he was subjected to unconstitutional 10 conditions of confinement), Report and Recommendation Adopted, 2010 WL 11 2087437 (N.D.N.Y. May 25, 2010) (Scrullin, S.D.J.); Hamilton v. Conway, No. 12 03-CV-527S, 2008 WL 234216, at *8-9 (W.D.N.Y. Jan. 28, 2008) (recognizing 13 that allegations of excessive noise and inmates throwing feces in SHU may 14 support an Eighth Amendment claim). Thus, at this stage in the 15 proceedings, the Court RECOMMENDS Defendants’ Motion to Dismiss 16 count two of Plaintiff’s Complaint against Defendants Benjamin and 17 Stapleton (Eighth Amendment Cruel and Unusual Punishment) be DENIED. 18 C. 19 Fourteenth Amendment Equal Protection Clause Violation Plaintiff alleges that Defendants used “disrespectful language in 20 reference to Plaintiff’s Jewish religion,” intentionally made it difficult for 21 Plaintiff to contact his attorneys and family members by giving him access to 22 the dayroom at midnight and by turning off the telephone in the dayroom on 23 November 17, 2014. (ECF No. 1 at 8). Plaintiff also claims that Defendant 24 Benjamin, as a supervisor, “allowed and encouraged rampant disrespect and 25 26 27 15 16cv582-JLS (MDD) 1 retribution” against Plaintiff due to him being a “Hispanic Jew.”5 (ECF No. 2 25 at 7). 3 Defendants’ argument focuses on Plaintiff’s First Amendment right to 4 religious accommodations. (ECF No. 12-1 at 5-6). Defendants’ argument is 5 misplaced. Plaintiff’s Complaint alleges violations of the Equal Protection 6 Clause. (ECF No. 1 at 8). While Plaintiff does explain that he was denied 7 religious accommodations, including a kosher diet, religious services and 8 copies of a Torah and Tanakh, he does so to explain the type of grievances he 9 filed that resulted in Defendants’ retaliation against him in count one of the 10 Complaint and not as a separate cause of action. (ECF No. 1 at 4). The Equal Protection Clause of the Fourteenth Amendment requires 11 12 the State to treat all similarly situated people equally. See City of Cleburne 13 v. City of Cleburne Living Ctr., 473 U.S. 432, 439 (1985). “Moreover, the 14 Equal Protection Clause entitles each prisoner to ‘a reasonable opportunity of 15 pursuing his faith comparable to the opportunity afforded fellow prisoners 16 who adhere to conventional religious precepts.’” Shakur v. Schriro, 514 F.3d 17 878, 891 (9th Cir. 2008) (quoting Cruz v. Beto, 405 U.S. 319, 322 (1972)). 18 This does not mean that all prisoners must receive identical treatment and 19 resources. See Cruz, 405 U.S. at 322 n.2; Ward v. Walsh, 1 F.3d 873, 880 (9th 20 Cir. 1993); Allen v. Toombs, 827 F.2d 563, 568-69 (9th Cir. 1987). “To prevail on an Equal Protection claim brought under § 1983, 21 22 Plaintiff[] must allege facts plausibly showing that the defendants acted with 23 24 25 26 27 In his Opposition to Defendants’ Motion to Dismiss, Plaintiff for the first time asserts that Defendant Stapleton verbally abused him for his chosen religion. (ECF No. 25 at 8). The Court will not analyze whether Defendant Stapleton violated Plaintiff’s Equal Protection rights because he is not listed in the Complaint’s Equal Protection claim. (See ECF No. 1 at 8-9). 5 16 16cv582-JLS (MDD) 1 an intent or purpose to discriminate against [him] based upon membership in 2 a protected class.” Hartmann v. Cal. Dep’t of Corr. & Rehab., 707 F.3d 1114, 3 1123 (9th Cir. 2013) (internal citations and quotations omitted). 4 Discriminatory intent or purpose “implies that the decision maker . . . 5 selected or reaffirmed a particular course of action at least in part ‘because 6 of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.” 7 Pers. Adm’r of Mass. V. Feeney, 442 U.S. 256, 279 (1979). The Equal 8 Protection Clause prohibits the government from engaging in discrimination 9 that burdens a fundamental right, such as religious freedom. See City of 10 11 Cleburne, 473 U.S. at 440. Plaintiff sufficiently alleges membership in a protected class because he 12 is Jewish. (ECF No. 1 at 4, 8). Within the Equal Protection count on pages 13 eight and nine of his Complaint, Plaintiff explains that Defendants made 14 “racially insensitive slurs” and that Defendant Benjamin ordered others to 15 move Plaintiff to Module 5C. (Id. at 9). Further, Plaintiff explains that 16 Defendant Benjamin “allowed and encouraged rampart disrespect and 17 retribution against Plaintiff as a practicing Jew.” (ECF No. 25 at 7). 18 Drawing all reasonable inferences in favor of Plaintiff, the Complaint also 19 sufficiently alleges that Defendant Benjamin acted with the requisite 20 discriminatory intent or purpose. See Vann v. Hernandez, No. 1:07-cv-01238- 21 LJO-SMS PC, 2008 WL 4500230, at *2 (E.D. Cal. Oct. 6, 2008) (Jewish 22 plaintiff showed discriminatory intent or purpose where defendants “made 23 remarks critical of plaintiff’s religion”); Bachman v. Melo, No. 1:05-CV- 24 01438OWWLJOP, 2006 WL 1455443, at *2 (E.D. Cal. May 25, 2006) (Jewish 25 homosexual plaintiff showed discriminatory intent or purpose where 26 defendants called him a “Christ killing Jewish fag”); Epileptic Found. v. City 27 & County of Maui, 300 F. Supp. 2d 1003, 1013 (D. Haw. 2003) (discriminatory 17 16cv582-JLS (MDD) 1 intent evident where park official used racial slur). Accordingly, at this stage 2 in the proceedings, the Court RECOMMENDS that Defendants’ Motion to 3 Dismiss count three of Plaintiff’s Complaint against Defendant Benjamin 4 (Equal Protection Clause violation) be DENIED. 5 D. Fourteenth Amendment Due Process Violation Plaintiff alleges that Defendant Stapleton violated Plaintiff’s due 6 7 process rights by confiscating his personal property, including legal 8 documents, original grievances, stamped envelopes, personally made 9 drawings, books, canteen items and Plaintiff’s address book. (ECF No. 1-1 at 10 1). Defendants argue that there is no due process right to destruction of 11 personal property where there is an alternate remedy available.6 (ECF No. 12 12-1 at 6). 13 Prisoners have a protected interest in their personal property under the 14 Due Process Clause. Wolff v. McDonnell, 418 U.S. 539, 556 (1974); Hansen v. 15 May, 502 F.2d 728, 730 (9th Cir. 1974). An authorized, intentional 16 deprivation of property is actionable under the Due Process Clause. See 17 Hudson v. Palmer, 468 U.S. 517, 532 n.13 (1984) (citing Logan v. Zimmerman 18 Brush Co., 455 U.S. 422, 435-36 (1982)). Neither negligent nor unauthorized 19 intentional deprivations of property give rise to a violation of the Due Process 20 Clause if the state provides an adequate post-deprivation remedy. Hudson, 21 468 U.S. at 533 n.14. “In other words, only an authorized intentional 22 deprivation of property is actionable under the Due Process Clause. 23 Authorized deprivations of property are permissible if carried out pursuant to 24 a regulation that is reasonably related to a legitimate penological interest.” 25 26 27 Defendants do not challenge Plaintiff’s claim that Defendant Benjamin had Plaintiff transferred to Module 5C without due process. (See ECF No. 12-1). 6 18 16cv582-JLS (MDD) 1 Haraszewski v. Knipp, No. 2:13-cv-2494 DB P, 2016 WL 6766750, at *3 (E.D. 2 Cal. Nov. 14, 2016). Plaintiff vaguely alleges that Defendant Stapleton illegally “confiscated 3 4 Plaintiff’s personal property” in retaliation for filing a Petition for Writ of 5 Habeas Corpus. (ECF No. 1-1 at 1). “Plaintiff’s allegations of wrongful, 6 retaliatory confiscation of his personal property does not support a claim. 7 Unauthorized, bad-faith behavior does not support a federal due process 8 claim” if a meaningful postdeprivation remedy is available for the loss. Chick 9 v. Lacey, No. 1:11-cv-01447-GBC (PC), 2012 WL 3912796, at *5 (E.D. Cal. 10 Sept. 7, 2012) (citing Hudson, 468 U.S. at 533); Hudson, 468 U.S. at 533. The 11 Ninth Circuit has held that “California Law provides an adequate post- 12 deprivation remedy for any property deprivations.” Barnett v. Centoni, 31 13 F.3d 813, 816-17 (9th Cir. 1994); see also Cal. Gov’t Code §§ 810-895. “It is 14 immaterial whether or not Plaintiff succeeds in redressing his loss through 15 the available state remedies; it is the existence of these alternate remedies 16 that bars him from pursuing a § 1983 procedural due process claim.” 17 Hutchison v. Marshall, No. CV 09-04540-ABC (VBK), 2011 WL 862118, at *9 18 (C.D. Cal. Feb. 3, 2011) (citing Willoughby v. Luster, 717 F. Supp. 1439, 1443 19 (D. Nev. 1989)). Accordingly, the Court RECOMMENDS Defendants’ Motion to Dismiss 20 21 Plaintiff’s violation of due process against Defendant Stapleton be 22 GRANTED and Plaintiff be given leave to amend. Lopez v. Smith, 203 F.3d 23 1122, 1130 (9th Cir. 2000) (en banc); Noll, 809 F.2d at 1448-49. 24 E. 25 Intentional Infliction of Emotional Distress In count nine, Plaintiff contends Defendant Stapleton intentionally 26 inflicted emotional distress upon Plaintiff by “taunting and 27 psychologically/verbal[ly] abus[ing] Plaintiff [for three hours] prior to 19 16cv582-JLS (MDD) 1 physically assaulting him.”7 (ECF No. 1-1 at 6). Plaintiff alleges that he was 2 given dayroom access at 12:30 a.m. and asked to make a phone call, but the 3 phone had been turned off. (Id. at 2). From 1:00 a.m. to 4:00 a.m., Defendant 4 Stapleton “verbally harassed Plaintiff by calling him disrespectful names (i.e. 5 ‘bitch,’ ‘kike,’ ‘punk,’ ‘sewer rat,’ etc.) and . . . attempted to ‘psych out’ the 6 Plaintiff by flashing the overhead lights and opening/closing/clicking the front 7 and side doors.” (Id. at 3). Plaintiff claims that “[a]fter 3 hours of suffering 8 this abuse, Plaintiff was mentally exhausted, distraught, and distressed.”8 9 (Id.). Defendants contend Plaintiff’s claim against Defendant Stapleton’s 10 11 conduct should be dismissed because there generally is no recovery for “mere 12 profanity, obscenity, or abuse, without circumstances of aggravation, or for 13 insults, indignities or threats which are considered to amount to nothing 14 more than mere annoyances.” (ECF No. 12-1 at 5) (internal quotations and 15 citations omitted). 16 A claim for intentional infliction of emotional distress requires a 17 plaintiff to prove “(1) extreme and outrageous conduct by the defendant with 18 19 20 21 22 23 24 25 26 27 Intentional infliction of emotional distress is a state law claim. The court has jurisdiction over Plaintiff’s civil rights causes of action pursuant to 28 U.S.C. § 1331 and supplemental claims, including intentional infliction of emotional distress, pursuant to 28 U.S.C. § 1367. 8 Plaintiff also contends that Defendant Stapleton is liable for intentional infliction of emotional distress for his alleged destruction of Plaintiff’s property and that Defendant Benjamin is liable for transferring Plaintiff to Module 5C. (ECF Nos. 1-1 at 6; 25 at 7-8). Defendants do not challenge these allegations. (See ECF No. 12-1 at 5). Accordingly, the Court will not determine whether these claims are sufficiently plead so as to survive a motion to dismiss. 7 20 16cv582-JLS (MDD) 1 the intention of causing, or reckless disregard of the probability of causing, 2 emotional distress; (2) the plaintiff's suffering severe or extreme emotional 3 distress; and (3) actual and proximate causation of the emotional distress by 4 the defendant's outrageous conduct.” Doe v. Gangland Prods., 730 F.3d 946, 5 960 (9th Cir. 2013) (quoting Davidson v. City of Westminster, 32 Cal. 3d 197, 6 209 (1982)). Plaintiff properly pled a claim for intentional infliction of emotional 7 8 distress against Defendant Stapleton. Plaintiff alleged that (1) Defendant 9 Stapleton intentionally attempted to “psych out” Plaintiff by flashing lights, 10 opening and closing doors and verbally abusing or taunting him for a period 11 of three hours in the early morning; (2) Plaintiff suffered mental exhaustion 12 and distress; and (3) Defendant Stapleton’s conduct was the actual cause of 13 Plaintiff’s emotional distress. (ECF Nos. 1 at 3; 1-1 at 6). Thus, Plaintiff 14 sufficiently stated a claim for intentional infliction of emotional distress 15 against Defendant Stapleton to survive a motion to dismiss. 16 Accordingly, the Court RECOMMENDS that Defendants’ Motion to 17 Dismiss Plaintiff’s intentional infliction of emotional distress claim (count 18 nine) against Defendant Stapleton for taunting and harassing Plaintiff for 19 three hours be DENIED. 20 F. 21 Timeliness Defendants allege that Plaintiff’s state claims must be dismissed as 22 untimely pursuant to California Government Code §945.6(a)(1). (ECF No. 23 12-1 at 7). Defendants claim that Plaintiff failed to timely file the instant 24 action within six months after the August 27, 2015, rejection of Plaintiff’s 25 state tort claims against Defendants Benjamin and Stapleton. (Id. at 7; ECF 26 No. 12-2 at 3). Plaintiff contends that he mailed his Complaint on February 27 21 16cv582-JLS (MDD) 1 26, 2016, making his state claims timely under the mailbox rule. (ECF No. 2 25 at 9). 3 Before a state law claim can be brought in state or federal court, the 4 California Tort Claims Act requires that a claim against a public entity or its 5 employees be presented to the California Victim Compensation and 6 Government Claims Board no more than six months after the cause of action 7 accrues. Cal. Gov’t Code §§ 905, 945.4, 950.2; Hernandez v. McClanahan, 996 8 F. Supp. 975, 977 (N.D. Cal. 1998) (failure to present timely California tort 9 claims bars plaintiff from bringing them in federal suit). If the claim is 10 rejected, the claimant has six months to file a lawsuit. Cal. Gov’t Code § 11 945.6. Under the mailbox rule, pro se prisoner documents are considered 12 filed as of the date the prisoner delivers the document to prison authorities. 13 Houston v. Lack, 487 U.S. 266, 275-76 (1988); Douglas v. Noelle, 567 F.3d 14 1103, 1107 (9th Cir. 2009) (holding that the Houston mailbox rule applies to § 15 1983 suits filed by pro se prisoners). 16 On August 27, 2015, the County of San Diego mailed Plaintiff a “Notice 17 of Rejection of Claim.” (ECF No. 12-2 at 3). The Complaint was signed by 18 Plaintiff, a pro se prisoner, and the envelope was dated and signed by “Davis” 19 on February 26, 2016. (ECF No. 1-1 at 9, 11). Under the mailbox rule, 20 Plaintiff’s Complaint was timely filed on February 26, 2016, which is five 21 months and thirty days from the dated “Notice of Rejection of Claim.” (See 22 ECF Nos. 1-1; 12-2). Thus, Plaintiff’s Complaint is timely and the Court 23 RECOMMENDS that Defendants’ Motion to Dismiss Plaintiff’s state causes 24 of action as untimely be DENIED. 25 26 V. CONCLUSION For the foregoing reasons, IT IS HEREBY RECOMMENDED that: 27 22 16cv582-JLS (MDD) 1 2 3 4 5 1) Defendants’ Motion be DENIED as to Plaintiff’s First Amendment retaliation claim against Defendant Benjamin (count one); 2) Defendants’ Motion be DENIED as to Plaintiff’s Eighth Amendment claim against Defendants Benjamin and Stapleton (count two); 3) Defendants’ Motion be DENIED as to Plaintiff’s Fourteenth 6 Amendment Equal Protection Claim against Defendant Benjamin (count 7 three); 8 9 10 11 4) Defendants’ Motion be GRANTED as to Plaintiff’s Fourteenth Amendment Due Process claim against Defendant Stapleton and Plaintiff be given LEAVE TO AMEND (count four); 5) Defendants’ Motion be DENIED as to Plaintiff’s intentional 12 infliction of emotional distress claim against Defendant Stapleton for 13 taunting and harassing Plaintiff for three hours (count nine); and 14 6) Defendants’ Motion be DENIED as to Plaintiff’s state law claims. 15 This Report and Recommendation will be submitted to the United 16 States District Judge assigned to this case, pursuant to the provisions of 28 17 U.S.C. § 636(b)(1). Any party may file written objections with the court and 18 serve a copy on all parties by May 12, 2017. The document shall be 19 captioned “Objections to Report and Recommendation.” Any reply to the 20 objections shall be served and filed by May 19, 2017. 21 The parties are advised that failure to file objections within the 22 specified time may waive the right to raise those objections on appeal of the 23 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 24 25 IT IS SO ORDERED. Dated: April 19, 2017 26 27 23 16cv582-JLS (MDD) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 24 16cv582-JLS (MDD)

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