Pennings v. Barrera et al

Filing 29

ORDER (1) Overruling and Sustaining Objections; (2) Adopting in Part 27 Report and Recommendation; and (3) Granting in Part and Denying in Part 12 Motion to Dismiss. It is ordered that the Court dismisses without prejudice Plaintiff's Co mplaint. Plaintiff shall file an amended complaint, if any, on or before thirty (30) days of the date on which this Order is electronically docketed. If Plaintiff fails to file an amended complaint on that date, the Court shall proceed with those claims of Plaintiffs complaint that remain unaffected by this Order. Signed by Judge Janis L. Sammartino on 6/26/2017. (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, Case No.: 16-CV-582 JLS (MDD) Plaintiff, 12 13 v. 14 ORDER (1) OVERRULING AND SUSTAINING OBJECTIONS; (2) ADOPTING IN PART REPORT AND RECOMMENDATION; AND (3) GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS BARRERA, et al., Defendants. 15 16 17 (ECF No. 27) 18 19 20 Presently before the Court are: (1) Defendants Tonya Benjamin and Garrett 21 Stapleton’s Motion to Dismiss, (“MTD,” ECF No. 12); (2) Magistrate Judge Mitchell D. 22 Dembin’s Report and Recommendation (“R&R”) advising that the Court should grant-in- 23 part and deny-in-part Defendants’ MTD, (ECF No. 27); and Defendants’ Objections to the 24 R&R, (“R&R Objs.,” ECF No. 28). Plaintiff did not file any Objections to Judge Dembin’s 25 R&R or a reply in opposition to Defendants’ Objections. After considering the parties’ 26 arguments and the law, the Court rules as follows. 27 /// 28 /// 1 16-CV-582 JLS (MDD) 1 2 BACKGROUND 3 Judge Dembin’s R&R contains a thorough and accurate recitation of the factual and 4 procedural histories underlying the instant Motion to Dismiss. (See R&R 1–61.) This Order 5 incorporates by reference the background as set forth therein. 6 LEGAL STANDARD 7 Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district 8 court’s duties regarding a magistrate judge’s report and recommendation. The district court 9 “shall make a de novo determination of those portions of the report . . . to which objection 10 is made,” and “may accept, reject, or modify, in whole or in part, the findings or 11 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(c); see also United 12 States v. Raddatz, 447 U.S. 667, 673–76 (1980). In the absence of a timely objection, 13 however, “the Court need only satisfy itself that there is no clear error on the face of the 14 record in order to accept the recommendation.” Fed. R. Civ. P. 72 advisory committee’s 15 note (citing Campbell v. U.S. Dist. Court, 510 F.2d 196, 206 (9th Cir. 1974)). 16 17 ANALYSIS I. Summary of the R&R Conclusion 18 On March 7, 2016, Plaintiff filed a Complaint against various defendants for alleged 19 violations of his constitutional rights. (Compl., ECF No. 1.) Plaintiff’s claims stem from 20 events that occurred while he was held at George Bailey Detention Facility (“GBDF”) as 21 a subpoenaed witness for an evidentiary hearing in the criminal case of another state 22 prisoner. (Id. at 3.) Plaintiff alleges that the moving Defendants violated several of his 23 constitutional rights, including those under the First, Eighth, and Fourteenth Amendments 24 /// 25 26 27 28 1 Pin citations to docketed material refer to the CM/ECF numbers electronically stamped at the top of each page. 2 16-CV-582 JLS (MDD) 1 to the United States Constitution, (see generally id.), only some of which Defendants 2 moved to dismiss, (see generally MTD). 3 First, Judge Dembin concluded that Plaintiff adequately alleged that Defendant 4 Benjamin retaliated against him in violation of the First Amendment where she allegedly 5 moved him to another, less sanitary cell (Module 5C) for the sole purpose of hindering 6 Plaintiff from continuing to file grievances on behalf of himself and other inmates. (R&R 7 8–13.) Second, Judge Dembin concluded that Plaintiff adequately alleged that Defendant 8 Benjamin violated his Eighth Amendment rights where she ordered him placed in Module 9 5C which, among other things, was covered in feces and had a “constant smell of feces 10 coming out of the ventilation system[,] . . . [and] continued banging noises.” (Id. at 13–15.) 11 Third, Judge Dembin concluded that Plaintiff adequately alleged that Defendant Benjamin 12 violated his Fourteenth Amendment rights under the Equal Protection Clause where she 13 intentionally made it difficult for him to contact his family and attorney because of his 14 Jewish religion, and where she allowed and encouraged others to disrespect him for the 15 same. (Id. at 15–18.) Fourth, Judge Dembin concluded that Plaintiff failed to adequately 16 allege that Defendant Stapleton violated his due process rights under the Fourteenth 17 Amendment by confiscating his personal property. (Id. at 18–19.) Fifth, Judge Dembin 18 concluded that Plaintiff adequately alleged that Defendant Stapleton intentionally inflicted 19 emotional distress upon him by taunting and psychologically abusing him for three hours 20 prior to physically assaulting 21 opening/closing/clicking the front and side doors. (Id. at 19–21.) Finally, Judge Dembin 22 concluded that Plaintiff’s Complaint and state causes of action were timely filed. (Id. at 23 21–22.) 24 II. him, including flashing overhead lights and Summary of Defendants’ Objections 25 Defendants object to Judge Dembin’s R&R on three grounds. First, Defendants 26 argue that Judge Dembin’s conclusion on Plaintiff’s retaliation claim is erroneous because 27 Plaintiff failed to adequately allege that Benjamin’s actions did not advance a legitimate 28 correctional goal. (R&R Objs. 2–3.) Second, Defendants argue that Judge Dembin 3 16-CV-582 JLS (MDD) 1 erroneously concluded that Plaintiff adequately alleged an equal protection violation 2 against the moving Defendants because other, nonmoving Defendants were the ones who 3 allegedly acted in violation of his rights. (Id. at 3–4.) Third, Defendants argue that Judge 4 Dembin’s conclusion on Plaintiff’s intentional infliction of emotional distress (“IIED”) 5 claim is erroneous because Plaintiff’s Complaint fails to distinguish who was actually 6 involved in the alleged outrageous conduct. (Id. at 4–5.) 7 III. 8 9 Court’s Analysis The Court will review, de novo, each part of Judge Dembin’s R&R to which Defendants object. 10 First, Plaintiff objects to Judge Dembin’s conclusion that Plaintiff adequately 11 alleged a violation of his First Amendment rights under a theory of retaliation. (Id. at 2–3.) 12 “In the prison context, a claim for First Amendment retaliation under § 1983 must establish 13 five elements: ‘(1) an assertion that a state actor took some adverse action against an inmate 14 (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the 15 inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably 16 advance a legitimate correctional goal.’” Howard v. Foster, 208 F. Supp. 3d 1152, 1159 17 (D. Nev. 2016) (quoting Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005)). 18 Defendants solely object to Judge Dembin’s assessment under the fifth element, 19 arguing that Plaintiff fails to allege that whatever action Benjamin took did not advance a 20 legitimate correctional goal. (R&R Objs. 2–3.) Specifically, Defendants take issue with the 21 following reasoning from Judge Dembin’s R&R: 22 23 24 25 26 27 28 Plaintiff’s Complaint alleges that Defendant Benjamin told Plaintiff “no grievance will fix the problems with [the] inadequate living conditions.” (ECF No. 1 at 5). This suggests that Defendant Benjamin retaliated against Plaintiff because his grievance efforts would be futile, not to support legitimate penological interests. The Court construes Plaintiff’s allegations to allege that Defendant Benjamin’s conduct was “arbitrary and capricious” rather than actions that advance legitimate goals of the correctional institution that were narrowly tailored to achieve such goals. (Id. at 2 (emphasis added) (quoting R&R 12–13).) Defendants argue that Judge Dembin’s 4 16-CV-582 JLS (MDD) 1 reasoning is erroneous because he only relied on half of the sentence, where the other half 2 reads “since it [was] virtually impossible to run 1 hour of day room to all cells, every day.” 3 (Id. (quoting Compl. ¶ 25).) Thus, Defendants argue that this statement negates the fifth 4 element because it demonstrates there was no attempt to infringe Plaintiff’s rights; rather, 5 Benjamin’s response was “based on the merits of the grievance and the practical realities 6 of providing additional day-room time while balancing legitimate penological interests of 7 maintaining order and providing for the safety of all staff and inmates during day-room 8 hours.” (Id. at 3.) 9 The Court partially agrees, but it makes no difference to the outcome. The second 10 clause of the sentence lends force to Defendants’ argument that Benjamin simply 11 commented on the practical realities of filing certain grievances related to inadequate living 12 conditions. So, read in full, the statement seems to support the argument that Benjamin 13 commented on legitimate penological interests. But that is not all Plaintiff alleges. Plaintiff 14 also alleges that Benjamin “came to Plaintiff’s cell screaming to stop filing grievances and 15 if not, she would have him moved to Module 5C, which housed all the ‘J-Cats.’” (Compl. 16 ¶ 23.) Plaintiff further explains that “J-Cats” are “inmates with serious mental health issues 17 who are known to throw feces and continuously bang on their cell doors and toilets at all 18 hours of the day.” (Id. ¶ 24.) Defendants do not explain how Benjamin’s threat that she 19 would move him to an arguably less accommodating cell unless he stopped filing 20 grievances was in furtherance of a legitimate penological interest. Like Judge Dembin, the 21 Court concludes that these allegations sufficiently describe Benjamin’s conduct as 22 “arbitrary and capricious” rather than narrowly tailored to advance legitimate goals of the 23 correctional institution. (R&R 13 (citing Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 24 1985) (finding that the plaintiff alleged that the defendants’ actions were retaliatory and 25 arbitrary and capricious, showing that they did not serve any legitimate correctional goal)).) 26 Accordingly, the Court OVERRULES Defendants’ first Objection. 27 Second, Defendants object to Judge Dembin’s conclusion that Plaintiff adequately 28 alleged that Defendant Benjamin violated the Equal Protection Clause of the Fourteenth 5 16-CV-582 JLS (MDD) 1 Amendment by intentionally making life in prison difficult for him on account of his 2 Jewish faith. (R&R Objs. 3–4.) Specifically, Defendants argue that Plaintiff’s allegations 3 are generic and only discuss actions allegedly taken by Defendants Barrera and Sanchez 4 (nonmoving Defendants), not by Benjamin. (Id.) The Court agrees. Defendants are correct 5 that Plaintiff specifically alleges that Barrera and Sanchez, as well as other Doe defendants, 6 engaged Plaintiff with derogatory and discriminatory language and made life in prison 7 measurably more difficult because of his Jewish faith, (see, e.g., Compl. ¶¶ 51–60). Judge 8 Dembin noted in his R&R that Plaintiff claims that Benjamin, as a supervisor, “allowed 9 and encouraged rampant disrespect and retribution” against Plaintiff because he was a 10 “Hispanic Jew.” (R&R 15–16 (quoting ECF No. 25, at 7).) Relying on this statement, and 11 others in that filing, Judge Dembin concluded that Plaintiff adequately alleged that 12 Benjamin had the discriminatory intent necessary to sustain a claim for a violation of the 13 Equal Protection Clause. (R&R 17–18.) However, these claims against Benjamin appear 14 only in Plaintiff’s opposition brief to Defendant’s Motion to Dismiss, (see ECF No. 25), 15 and do not appear in Plaintiff’s operative Complaint. Thus, Judge Dembin erred in relying 16 on these statements in assessing Defendants’ Motion to Dismiss. See Schneider v. Cal. 17 Dep’t of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998) (“In determining the propriety of 18 a Rule 12(b)(6) dismissal, a court may not look beyond the complaint to a plaintiff’s 19 moving papers, such as a memorandum in opposition to a defendant’s motion to dismiss.”) 20 (emphasis in original)). And, after a review of Plaintiff’s Complaint, the Court agrees with 21 Defendants that there are no discrete allegations against Benjamin that would otherwise 22 sustain Judge Dembin’s conclusion as to Plaintiff’s equal protection claim. Plaintiff will, 23 of course, have an opportunity to amend his Complaint to include these—and other— 24 allegations against Benjamin if he so chooses. Accordingly, the Court SUSTAINS 25 Defendants’ second Objection and GRANTS this portion of Defendants’ Motion to 26 Dismiss. 27 /// 28 /// 6 16-CV-582 JLS (MDD) 1 Third, Defendants object to Judge Dembin’s conclusion that Plaintiff adequately 2 alleges an IIED claim against Stapleton.2 Specifically, Defendants argue that the conduct 3 alleged “fall[s] woefully short of the high standard of conduct necessary to establish an 4 IIED claim” and that it is difficult to discern who Plaintiff is accusing because he lumps all 5 of the Defendants together. (R&R Objs. 4–5.) 6 The Court disagrees with both arguments. A claim for intentional infliction of 7 emotional distress requires a plaintiff to prove “(1) extreme and outrageous conduct by the 8 defendant with the intention of causing, or reckless disregard of the probability of causing, 9 emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and 10 (3) actual and proximate causation of the emotional distress by the defendant’s outrageous 11 conduct.” Doe v. Gangland Prods., 730 F.3d 946, 960 (9th Cir. 2013) (quoting Davidson 12 v. City of Westminster, 32 Cal. 3d 197, 209 (1982)). Defendants chiefly argue that “being 13 called names during a three-hour period on one day does not constitute conduct that is ‘so 14 extreme as to exceed all bounds of that usually tolerated in a civilized community.’” (R&R 15 Objs. 5 (citing Davidson, 32 Cal. 3d at 209).) This is a disingenuous argument because it 16 ignores the totality of Plaintiff’s allegations. As Judge Dembin recounts: 17 Plaintiff contends Defendant Stapleton intentionally inflicted emotional distress upon Plaintiff by “taunting and psychologically/verbal[ly] abus[ing] Plaintiff [for three hours] prior to physically assaulting him.” (ECF No. 1-1 at 6). Plaintiff alleges that he was given dayroom access at 12:30 a.m. and asked to make a phone call, but the phone had been turned off. (Id. at 2). From 1:00 a.m. to 4:00 a.m., Defendant Stapleton “verbally harassed Plaintiff by calling him disrespectful names (i.e. ‘bitch,’ ‘kike,’ ‘punk,’ ‘sewer rat,’ etc.) and . . . attempted to ‘psych out’ the Plaintiff by flashing the overhead lights and opening/closing/clicking the front and side doors.” (Id. at 3). Plaintiff claims that “[a]fter 3 hours of suffering this abuse, Plaintiff was mentally exhausted, distraught, and distressed.” (Id.). 18 19 20 21 22 23 24 25 26 2 27 28 Defendants urge the Court to also dismiss this cause of action as applied to Benjamin. (R&R Objs. 5.) But Defendants did not move to dismiss this claim against Benjamin in their MTD; rather, they only moved to dismiss it as to Stapleton. (See generally MTD.) Accordingly, the Court declines to assess the adequacy of this claim as to Benjamin because Defendants failed to raise it earlier. 7 16-CV-582 JLS (MDD) 1 (R&R 19–20.) This is more than name calling, and the Court agrees with Judge Dembin 2 that these allegations are adequate to state a claim for IIED. (Id. at 21.) Furthermore, the 3 Court disagrees with Defendants that Plaintiff’s allegations fail to identify the Defendants 4 involved. To the contrary, Plaintiff specifically states that Stapleton and Benjamin, among 5 others, intentionally inflicted emotion distress upon Plaintiff as recounted in paragraphs 6 73–106 of his Complaint. (Compl. ¶ 116.) Indeed, paragraph 84 specifically states that for 7 roughly three hours Stapleton, among others, “verbally harassed” Plaintiff and attempted 8 to “psych” him out by flashing overhead lights and repeatedly opening and closing doors. 9 This is enough to plausibly allege that Stapleton directly participated in this outrageous 10 behavior. Accordingly, the Court OVERRULES Defendants’ third Objection. 11 Furthermore, after review of the moving papers and Judge Dembin’s R&R the Court 12 finds “that there is no clear error on the face of the record” and thus the Court may “accept 13 the recommendation.” Fed. R. Civ. P. 72 advisory committee’s note (citing Campbell, 510 14 F.2d at 206). Accordingly, the Court ADOPTS the relevant portions of Judge Dembin’s 15 R&R and GRANTS-IN-PART and DENIES-IN-PART Defendants’ Motion to Dismiss 16 consistent with this Order. 17 CONCLUSION 18 For the reasons stated above, the Court (1) OVERRULES Defendants’ first and 19 third Objections; (2) SUSTAINS Defendants’ second Objection; (3) ADOPTS the relevant 20 portions of Judge Dembin’s R&R; and (4) GRANTS-IN-PART and DENIES-IN-PART 21 Defendants’ Motion to Dismiss consistent with this Order (ECF No. 12). Accordingly, the 22 Court DISMISSES WITHOUT PREJUDICE Plaintiff’s Complaint. Plaintiff SHALL 23 FILE an amended complaint, if any, on or before thirty (30) days of the date on which this 24 Order is electronically docketed. If Plaintiff fails to file an amended complaint on that date, 25 /// 26 /// 27 /// 28 /// 8 16-CV-582 JLS (MDD) 1 the Court SHALL proceed with those claims of Plaintiff’s complaint that remain 2 unaffected by this Order. 3 4 IT IS SO ORDERED. Dated: June 26, 2017 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 16-CV-582 JLS (MDD)

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