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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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OTONIEL TYLER PENNINGS,
Plaintiff,

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v.

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BARRERA, et al.,
Defendants.

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Case No.: 16cv582-JLS (MDD)
REPORT AND
RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE
RE: MOTION TO DISMISS
[ECF No. 12]

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This Report and Recommendation is submitted to the United States

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District Judge Janis L. Sammartino pursuant to 28 U.S.C. § 636(b)(1) and

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Local Civil Rule 72.1(c) of the United States District Court for the Southern

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District of California.

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For the reasons set forth herein, the Court RECOMMENDS

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Defendants’ Motion to Dismiss be GRANTED IN PART AND DENIED IN

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PART.

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I.

PROCEDURAL HISTORY

Plaintiff Otoñiel Tyler Pennings (“Plaintiff”) is a state prisoner

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proceeding pro se and in forma pauperis. (ECF Nos. 1, 6). On March 7, 2016,

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Plaintiff filed a complaint pursuant to 42 U.S.C. § 1983. (ECF No. 1).
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16cv582-JLS (MDD)

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Plaintiff’s complaint sets forth various claims against four named individuals

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working at the George Bailey Detention Facility (“GBDF”) alleging that they

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violated his civil rights by: (1) retaliating against him in violation of the First

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Amendment; (2) imposing cruel and unusual conditions of confinement in

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violation of the Eighth Amendment; (3) treating him inhumanely in violation

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of the Fourteenth Amendment’s Equal Protection Clause; (4) failing to

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provide Plaintiff his due process rights in violation of the Fourteenth

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Amendment; (5) using excessive force against him; (6) assaulting and

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battering him; (7) providing inadequate medical care; (8) providing negligent

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medical care; and (9) intentionally inflicting emotional distress upon him.

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(See id.).
On October 12, 2016, Defendants Stapleton and Benjamin filed a

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motion to dismiss some of the claims against them. (ECF No. 12).

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Defendants contend that: (1) Plaintiff’s First Amendment retaliation claim

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against Defendant Benjamin should be dismissed because Defendant

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Benjamin did not “prevent[] Plaintiff from engaging in protected conduct[;]”

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(2) Plaintiff’s Eighth Amendment claim against both Defendants should be

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dismissed because Plaintiff did not allege that Defendants caused the

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unsanitary living conditions; (3) Plaintiff’s denial of religious

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accommodations claim should be dismissed because Plaintiff did not allege

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“facts indicating that the responding defendants denied him the kosher

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meals, or that they were necessary for him to practice” his religion;1 (4)

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Plaintiff’s destruction of property claim against Defendant Stapleton must be

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Defendants improperly construe Plaintiff’s Fourteenth Amendment Equal
Protection Clause claim as a denial of religious accommodations claim under
the First Amendment.
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16cv582-JLS (MDD)

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dismissed because “Plaintiff does not allege the absence of an administrative

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remedy to challenge property destruction[;]” (5) Plaintiff’s intentional

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infliction of emotional distress claim against Defendant Stapleton should be

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dismissed because he does not allege extreme and outrageous conduct; and

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(6) the state law claims should be dismissed as untimely. (ECF No. 12-1 at 3-

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7).

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On October 13, 2016, this Court ordered Plaintiff to file a Response in

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Opposition to Defendants’ Motion to Dismiss on or before November 3, 2016,

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and Defendants to file a reply on or before November 10, 2016. (ECF No. 13).

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On November 2, 2016, Plaintiff requested a 90-day continuance to file his

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opposition to Defendants’ motion to dismiss in a duplicative action.

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(Pennings v. San Diego Sheriff’s Dep’t, et al., S.D. Cal. Civil Case No.

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16cv2318-CAB-DHB, ECF No. 7). On January 10, 2017, District Judge

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Bencivengo closed Plaintiff’s duplicative action and denied Plaintiff’s motion

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for a continuance without prejudice to be re-filed in this case. (Id. at ECF No.

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11). Plaintiff did not re-file the motion as directed, but the Court

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nevertheless amended the briefing schedule and ordered Plaintiff to file a

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Response in Opposition to Defendants’ Motion to Dismiss on or before

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February 8, 2017, and Defendants to file a reply on or before February 15,

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2017. (ECF No. 17). The Court granted Plaintiff one continuance and

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ordered him to file a Response in Opposition to Defendants’ Motion to

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Dismiss on or before March 16, 2017. (ECF Nos. 21, 22). On March 17, 2017,

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the date of his signature, Plaintiff filed a Response in Opposition to

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Defendants’ Motion to dismiss. (ECF No. 25). The Court will consider

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Plaintiff’s opposition even though it was not timely filed.

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Plaintiff opposes the motion to dismiss on the grounds that: (1)
Defendant Benjamin retaliated against Plaintiff by ordering he be moved “to
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a dirty, feces-covered cell, in a module used as ‘punishment[;]’’’ (2) Defendant

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Stapleton intentionally inflicted emotional distress by calling Plaintiff

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derogatory names and assaulting him because of his religion; and (3) his

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state law claims are timely because he mailed his Complaint on February 26,

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2016.2 (Id. at 5-9).

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Defendants reply that Plaintiff’s Complaint should be dismissed

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because: (1) Plaintiff failed to timely file his opposition; (2) Plaintiff provided

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no proof that his Complaint was mailed on February 26, 2016; and (3)

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Plaintiff’s Complaint “consist[s] of mere conclusions in the form of allegations

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. . . . [that] fall woefully short of establishing a claim against Defendants for

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any constitutional violation.” (ECF No. 26 at 2-5).
II.

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The facts are taken from Plaintiff’s Complaint and are not to be

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BACKGROUND FACTS

construed as findings of fact by the Court.

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Plaintiff’s claims arise from a series of events that occurred while

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Plaintiff was held at GBDF as a subpoenaed witness for an evidentiary

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hearing in the criminal case of another state prisoner. (ECF No. 1 at 3).

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Plaintiff was placed in an administrative segregation unit (“Module 5A”) and

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immediately “noticed unconstitutional living conditions . . . and began the

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‘grievance process.’” (Id.). Plaintiff filed grievances alleging cruel and

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unusual living conditions, lack of access to the law library and law books,

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failure to provide three hours of recreation time, failure to provide a kosher

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diet or religious services and reading material and that Defendants were

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posting “excessive personal and private information” on cell doors. (Id. at 4).

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Plaintiff’s opposition also includes several other claims that Defendants’
motion to dismiss do not challenge.
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16cv582-JLS (MDD)

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Plaintiff’s Complaint describes his claim in nine counts as follows:

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In count one, Plaintiff contends that Defendants Barrera, Stapleton and

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Benjamin violated his First Amendment right to freedom of speech by

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retaliating against him for filing grievances. (Id. at 4-6).

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In count two, Plaintiff contends that Defendants Barrera, Sanchez,

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Stapleton and Benjamin imposed cruel and unusual conditions of

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confinement in violation of the Eighth Amendment. (Id. at 7-8).

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In count three, Plaintiff contends Defendants Barrerra and Sanchez

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violated his equal protection rights when they treated him differently than

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other inmates and made “racially insensitive slurs” targeted at his Jewish

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faith. (Id. at 8-9).

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In count four, Plaintiff contends that Defendants Benjamin, Barrera,

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Sanchez and Stapleton violated his due process rights under the Fourteenth

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Amendment. (Id. at 9; ECF No. 1-1 at 1).

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In count five, Plaintiff contends that on November 17, 2014, Defendants

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Benjamin, Stapleton, Barrera and Sanchez used excessive force upon him.

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(ECF No. 1-1 at 1-3).

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In count six, Plaintiff contends Defendants Barrera, Sanchez and

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Stapleton assaulted and battered him during the excessive force incident

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explained in count six. (Id. at 5).

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In count seven, Plaintiff contends that he received inadequate medical

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care from an unknown person treating Plaintiff’s injuries sustained during

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the assault, battery and excessive force incident. (Id. at 5-6).

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In count eight, Plaintiff contends that some unknown person committed

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medical malpractice and was medically negligent when treating Plaintiff’s

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injuries. (Id. at 6).

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In count nine, Plaintiff contends Defendants Barrera, Sanchez,

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Stapleton and Benjamin intentionally inflicted emotional distress upon

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Plaintiff. (Id.).

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III. STANDARD OF REVIEW
“A Rule 12(b)(6) motion tests the legal sufficiency of a claim.” Navarro

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v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “Under Federal Rule of Civil

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Procedure 8(a)(2), a pleading must contain a short and plain statement of the

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claim showing that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556

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U.S. 662, 677-78 (2009) (internal quotations omitted). The pleader must

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provide the Court with “more than an unadorned, the-defendant-unlawfully-

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harmed-me accusation.” Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v.

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Twombly, 550 U.S. 544, 555 (2007)). “Threadbare recitals of the elements of

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

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Iqbal, 556 U.S. at 678. “Although for the purposes of a motion to dismiss [a

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court] must take all of the factual allegations in the complaint as true, [a

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court is] not bound to accept as true a legal conclusion couched as a factual

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allegation.” Iqbal, 556 U.S. at 678 (internal quotations omitted).

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A pro se pleading is construed liberally on a defendant’s motion to

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dismiss for failure to state a claim. Thompson v. Davis, 295 F.3d 890, 895

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(9th Cir. 2002) (citing Ortez v. Washington Cnty. Oregon, 88 F.3d 804, 807

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(9th Cir. 1996)). The pro se pleader must still set out facts in his complaint

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that bring his claims “across the line from conceivable to plausible.”

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Twombly, 550 U.S. at 570. A court “may not supply essential elements of the

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claim that were not initially pled.” Ivey v. Bd. of Regents, 673 F.2d 266, 268

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(9th Cir. 1982). A pro se litigant is entitled to notice of the deficiencies in the

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complaint and an opportunity to amend, unless the complaint’s deficiencies

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cannot be cured by amendment. See Noll v. Carlson, 809 F.2d 1446, 1448

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(9th Cir. 1987).
IV.

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DISCUSSION

The Court will only address challenged claims brought against

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Defendants Benjamin and Stapleton. Those claims are: (1) count one, First

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Amendment retaliation against Defendant Benjamin; (2) count two, Eighth

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Amendment cruel and unusual punishment against both Defendants; (3)

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count three, Fourteenth Amendment violation of the Equal Protection Clause

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against Defendant Benjamin; (4) count four, Fourteenth Amendment

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violation of due process against Defendant Stapleton; (5) count nine,

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intentional infliction of emotional distress against Defendant Stapleton; and

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(6) the timeliness of Plaintiff’s state law claims. (See ECF Nos. 1, 12-1).

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A.

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First Amendment Retaliation Claim
In count one, Plaintiff alleges that Defendant Benjamin retaliated

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against Plaintiff in violation of the First Amendment for filing grievances.

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(ECF No. 1 at 4). Plaintiff alleges that Defendant Benjamin was in charge of

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the grievances filed in Plaintiff’s housing unit and was required to respond,

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process, investigate and resolve grievances, or forward them to someone who

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could address and resolve the grievances. (Id. at 4).

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After Plaintiff began filing grievances, Defendant Benjamin “came to

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Plaintiff’s cell screaming to stop filing grievances and if not, she would have

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him moved to module 5C” where mentally ill inmates are housed and

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explained that no grievance would fix the inadequate living conditions. (Id.

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at 5). Plaintiff continued to file grievances and began helping other inmates

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file grievances. (Id.). In retaliation, Defendant Benjamin instructed others

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to move Plaintiff to Module 5C. (Id.). Module 5C “had a constant smell of

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16cv582-JLS (MDD)

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feces coming out of the ventilation system and continued banging noises.”

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(Id.).
Plaintiff filed a retaliation grievance against Defendant Benjamin for

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moving him to Module 5C, alleging he was moved “for the sole purpose of

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separating Plaintiff from other inmates he had been assisting with their

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grievances and to deter Plaintiff and other inmates from continuing to

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redress their grievances” and alleging that Defendant Benjamin refused to

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log inmate grievances. (Id.).
Defendants assert that count one must be dismissed because Plaintiff

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did not allege that Defendant Benjamin’s conduct was retaliatory, her alleged

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conduct did not prevent Plaintiff from filing grievances and there is no due

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process right for prisoners to file grievances.3 (ECF No. 12-1 at 3-4).
The First Amendment protects against “deliberate retaliation” by prison

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officials against an inmate’s exercise of his right to petition for redress of

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grievances. Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir.

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1989). Such conduct is actionable even if it would not otherwise rise to the

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level of a constitutional violation because retaliation by prison officials may

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chill an inmate’s exercise of legitimate First Amendment rights. Thomas v.

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Carpenter, 881 F.2d 828, 830 (9th Cir. 1989). A prisoner suing prison officials

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for retaliation must allege that he was retaliated against for exercising his

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constitutional rights and that the retaliatory action did not advance

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legitimate penological goals. Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir.

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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).
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1995); Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994); Rizzo v.

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Dawson, 778 F.2d 527, 532 (9th Cir. 1985).

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In Rhodes v. Robinson, the Ninth Circuit set forth five basic elements of

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a viable claim of First Amendment retaliation: “(1) [a]n assertion that a state

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actor took some adverse action against an inmate (2) because of (3) that

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prisoner’s protected conduct, and that such action (4) chilled the inmate’s

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exercise of his First Amendment rights, and (5) the action did not reasonably

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advance a legitimate correctional goal.” Brodheim v. Cry, 584 F.3d 1262,

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1269 (9th Cir. 2009) (citing Rhodes v. Robinson, 408 F.3d 559, 567-68 n.11

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(9th Cir. 2005)).

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1.

Adverse Action Against an Inmate

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The first element of the Rhodes pleading standard requires Plaintiff to

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make an assertion that a state actor took some adverse action against him.

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Rhodes, 408 F.3d at 567-68. Plaintiff contends that Defendant Benjamin

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threatened to move Plaintiff to Module 5C if he continued to file grievances

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and later ordered Plaintiff be moved as a specific consequence of his

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continued filing of grievances. (ECF No. 1 at 5). The cell Plaintiff was placed

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in was dirty and covered in feces. (ECF No. 25 at 5). Plaintiff also alleges

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that Defendant Benjamin retaliated by “refus[ing] to correctly process all . . .

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grievances.” (ECF No. 1 at 5); (see also ECF No. 25 at 6).

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The threat that Defendant Benjamin made and the later move to

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Module 5C, which Plaintiff characterized as a less desirable living situation,

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provide sufficient facts to allege the required adverse action. See Watison v.

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Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) (“[T]he mere threat of harm can

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be adverse action . . . .”); Brodheim v. Cry, 584 F.3d 1262, 1270 (9th Cir. 2009)

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(allowing a retaliation claim to proceed when a grievance decider made an

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implicit threat of retaliation regarding use of the grievance process); Puckett
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v. Sweis, No. 2:15-cv-0602-AC P, 2016 WL 632795, at *4 (E.D. Cal. Feb. 16,

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2016) (“[A]t the pleading stage, ‘allegations of harm [are] sufficient to ground

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a First Amendment retaliation claim without discussing whether that harm

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had a chilling effect.”); Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004)

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(retaliatory placement in administrative segregation for filing grievances is

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an adverse action); Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995)

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(retaliatory prison transfer and double-cell status in retaliation constitutes

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adverse action). Defendant Benjamin’s alleged failure to properly process

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grievances also satisfies the first element of the Rhodes pleading standard.

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Harbridge v. Schwarzenegger, No. CV 07-4486-GW(SH), 2009 U.S. Dist.

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LEXIS 129379, at *36 (C.D. Cal. Aug. 13, 2009) (finding that the plaintiff

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satisfied element one of the Rhodes standard where he alleged that his

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prisoner grievances were not properly processed and his complaints were not

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adequately investigated). Accordingly, the first element of the Rhodes

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pleading standard is met. See Rhodes, 408 F.3d at 568 (arbitrary confiscation

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and destruction of property and initiation of prison transfer are adverse

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actions).

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2.

Because of

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The second element of the Rhodes pleading standard requires Plaintiff

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to make an assertion that a state actor took some adverse action against an

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inmate because he exercised his First Amendment right. Rhodes, 408 F.3d at

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567-68. Plaintiff alleges he was moved to Module 5C at the behest of

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Defendant Benjamin and that his grievances were not properly processed

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“because not only did Plaintiff continue to file grievances, but started

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assisting other inmates to file their grievances.” (ECF No. 1 at 5; see ECF

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No. 25 at 6). Plaintiff also contends Defendant Benjamin had him moved “for

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the sole purpose of separating Plaintiff from other inmates he had been
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assisting with their grievances and to deter Plaintiff and other inmates from

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continuing to redress their grievances.” (ECF No. 1 at 5). Therefore, Plaintiff

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satisfies the second element of the Rhodes pleading standard.

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3.

Prisoner’s Protected Conduct

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The third element of the Rhodes pleading standard requires Plaintiff to

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show he exercised protected conduct. Rhodes, 408 F.3d at 567-68. Plaintiff

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alleges that Defendant Benjamin’s actions “violated Plaintiff’s First

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Amendment Rights by preventing an avenue to seek actual relief for his

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grievances.” (ECF No. 1 at 6). This satisfies the third element of the Rhodes

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pleading standard. See Rhodes, 408 F.3d at 567 (“of fundamental import to

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prisoners are their First Amendment ‘right[s] to file prison grievances’”).

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4.

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The fourth Rhodes pleading standard element requires Plaintiff to show

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that the harm chilled the exercise of his First Amendment right. Rhodes, 408

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F.3d 567-68. A plaintiff is not required to allege “a total chilling of his First

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Amendment rights to file grievances and to pursue civil rights litigation in

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order to perfect a retaliation claim. Speech can be chilled even when not

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completely silenced.” Id. at 568 (emphasis in original). The Court must ask

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“whether an official’s acts would chill or silence a person of ordinary firmness

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from future First Amendment activities.” Mendocino Envtl. Ctr. v.

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Mendocino County, 192 F.3d 1283, 1300 (9th Cir. 1999) (internal citations

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and quotations omitted).

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Chilled First Amendment Rights

Defendants contend that “the complaint does not allege facts that

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demonstrate Benjamin’s alleged conduct prevented Plaintiff from using the

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grievance process, thereby having a chilling effect on his First Amendment

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rights. To the contrary, Plaintiff admits he continued to file grievances and

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assisted other inmates in filing grievances as well.” (ECF No. 12-1 at 4).
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16cv582-JLS (MDD)

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Defendants are incorrect. The face of Plaintiff’s Complaint alleges that

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his First Amendment rights were chilled. (ECF No. 1 at 5). Plaintiff

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specifically alleges that Defendants retaliated against him for the sole

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purpose of “deter[ring] Plaintiff and other inmates from continuing to redress

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their grievances.” (Id.). Plaintiff’s admission that he continued to file

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inmate grievances even after Defendants retaliated against him does not

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negate a chilling effect. See Rhodes, 408 F.3d at 568-69 (rejecting argument

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that inmate failed to state retaliation claim where, after alleged adverse

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action, plaintiff nonetheless had been able to file inmate grievances and a

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lawsuit); see also Martinez v. Muniz, No. 14-cv-03753-HSG (PR), 2016 WL

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3208398, at *13 (N.D. Cal. June 10, 2016) (finding that a plaintiff’s continued

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filing of inmate appeals does not negate the existence of a chilling effect).

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Transferring an inmate to a less desirable living situation and improperly

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handling grievances would “chill or silence a person of ordinary firmness.”

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Mendocino Evtl. Ctr., 192 F.3d at 1300. Therefore, Plaintiff satisfies the

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fourth element of the Rhodes pleading standard despite the fact Plaintiff

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continued to file inmate appeals because the chilling effect need not be so

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great as to totally silence the inmate.

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5.

Action Did Not Reasonably Advance a Legitimate
Correctional Goal

The fifth and final element of the Rhodes pleading standard requires

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Plaintiff to make an assertion that Defendant Benjamin’s actions did not

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advance a legitimate correctional goal. Id. at 567-68. Plaintiff’s Complaint

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alleges that Defendant Benjamin told Plaintiff “no grievance will fix the

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problems with [the] inadequate living conditions.” (ECF No. 1 at 5). This

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suggests that Defendant Benjamin retaliated against Plaintiff because his

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grievance efforts would be futile, not to support legitimate penological
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16cv582-JLS (MDD)

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interests. The Court construes Plaintiff’s allegations to allege that Defendant

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Benjamin’s conduct was “arbitrary and capricious” rather than actions that

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advance legitimate goals of the correctional institution that were narrowly

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tailored to achieve such goals. See Rizzo, 778 F.2d at 532 (finding that the

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plaintiff alleged that the defendants’ actions were retaliatory and arbitrary

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and capricious, showing that they did not serve any legitimate correctional

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goal). Accordingly, Plaintiff satisfies the fifth element of the Rhodes pleading

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standard.
6.

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Conclusion

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Plaintiff’s Complaint satisfies the Rhodes pleading standard. The

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Court, therefore, RECOMMENDS that Defendants’ Motion to Dismiss count

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one of Plaintiff’s Complaint (First Amendment Retaliation) as to Defendant

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Benjamin be DENIED.

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B.

Eighth Amendment Unsanitary Living Conditions
On October 14, 2014, Plaintiff was transferred to GBDF and ultimately

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placed in Module 5C at Defendant Benjamin’s order.4 (ECF No. 1 at 7).

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Module 5C houses inmates with serious mental health issues “who are known

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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.
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to throw feces and continuously bang on their cell doors and toilets at all

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hours of the day.” (Id. at 5). Plaintiff alleges that Module 5C’s living

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conditions were unconstitutional because of the “constant smell of feces

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coming out of the ventilation system[,] . . . continued banging noises” and

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because the cell was covered in feces. (Id. at 5, 7; ECF No. 25 at 5). Plaintiff

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asserts that Defendants Benjamin and Stapleton were aware of the

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unsanitary living conditions and that Defendant Stapleton was blatantly

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indifferent to Plaintiff’s complaints of unsanitary living conditions. (ECF No.

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1 at 7). Defendants argue that Plaintiff’s facts do not show that either

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Defendant Stapleton or Defendant Benjamin caused “any of these alleged

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experiences or conditions.” (ECF No. 12-1 at 6).

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The Eighth Amendment provides that prison conditions must not

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amount to cruel and unusual punishment. U.S. CONST. amend. VIII. “The

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Constitution does not mandate comfortable prisons, but neither does it

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permit inhumane ones.” Farmer v. Brennan, 511 U.S. 825, 832 (1994)

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(internal quotations and citations omitted). Prison officials must provide

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inmates with the basic necessities of life, such as food, clothing, shelter,

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sanitation, medical care and personal safety. Id. at 832. A successful

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conditions of confinement claim must show that (1) the deprivation of the

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basic necessities of life is, objectively, sufficiently serious; and (2) the prison

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official acted with deliberate indifference. Id. at 834. Deliberate indifference

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exists where an “official knows of and disregards an excessive risk to inmate

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health or safety; the official must both be aware of the facts from which the

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inference could be drawn that a substantial risk of harm exists, and he must

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also draw the inference.” Id. at 837.

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“Filthy conditions can infringe on an inmate’s basic human need for
sanitary living conditions.” Carr v. Tousley, No. CV-06-0125SJLQ, 2009 WL
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16cv582-JLS (MDD)

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1514661, at *22 (D. Idaho, May 27, 2009); see Anderson v. County of Kern, 45

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F.3d 1310, 1314, as amended, 75 F.3d 448 (9th Cir. 1995) (“[A] lack of

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sanitation that is severe or prolonged can constitute an infliction of pain

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within the meaning of the Eighth Amendment.”). Courts have recognized

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that proof of conditions similar to those alleged by Plaintiff may be sufficient

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to establish an Eighth Amendment claim. Cagle v. Gravlin, No. 9:09-CV-

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0648, 2010 WL 2088267, at *6 (N.D.N.Y. Apr. 29, 2010) (Lowe, M.J.) (finding

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the plaintiff’s allegations that he was subjected to feces on the wall and gate

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sufficient to plausibly suggest that he was subjected to unconstitutional

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conditions of confinement), Report and Recommendation Adopted, 2010 WL

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2087437 (N.D.N.Y. May 25, 2010) (Scrullin, S.D.J.); Hamilton v. Conway, No.

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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

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count two of Plaintiff’s Complaint against Defendants Benjamin and

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Stapleton (Eighth Amendment Cruel and Unusual Punishment) be DENIED.

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C.

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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

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November 17, 2014. (ECF No. 1 at 8). Plaintiff also claims that Defendant

24

Benjamin, as a supervisor, “allowed and encouraged rampant disrespect and

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26
27
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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)

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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

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Defendant Benjamin “allowed and encouraged rampart disrespect and

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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.”

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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

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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

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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
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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

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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.

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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
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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
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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

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