Dorsey v. Paramo et al

Filing 40

ORDER Adopting Report and Recommendation [Doc. No. 38 ] and Granting Defendants' Motion to Dismiss [Doc. No. 32 ]. Signed by Judge Cathy Ann Bencivengo on 8/29/2018. (All non-registered users served via U.S. Mail Service)(Civil Rights Complaint mailed to Plaintiff)(anh)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MARK E. DORSEY,

Case No.: 17cv1123-CAB-KSC
Plaintiff,

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ORDER ADOPTING REPORT AND
RECOMMENDATION [Doc. No. 38]
AND GRANTING DEFENDANTS’
MOTION TO DISMISS [Doc. No. 32]

v.
DANIEL PARAMO, et al.,
Defendant.

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Plaintiff Mark E. Dorsey, a state prisoner proceeding pro se, filed this civil rights

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action pursuant to Title 42, United States Code, Section 1983, alleging prison officials at

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R.J. Donovan Correctional Facility (RJDCF) violated his rights under the United States

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Constitution. [Doc. No. 3.] On February 27, 2018, Defendants filed a motion to dismiss

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Counts 2 and 3 of the Complaint for failure to state a claim. [Doc. No. 32.]1 On March

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16, 2018, Plaintiff filed an opposition to the motion. [Doc. No. 33.] On July 9, 2018,

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On March 28, 2018, Plaintiff filed a motion for judgment on the pleadings as to Count 1, claiming that
Defendants failed to answer Count 1, as the motion to dismiss is only directed to Counts 2 and 3. [Doc.
No. 35.] However, the filing of a motion to dismiss under Fed.R.Civ.P. Rule 12(b) extends a
defendant’s time to file a responsive pleading, even if the Rule 12(b) motion challenges only some of the
claims of the complaint. See Compton v. City of Harrodsburg, Ky., 287 F.R.D. 401, 402 (E.D. Ky.
2012). Therefore, the motion for judgment on the pleadings [Doc. No. 35] is DENIED.
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Magistrate Judge Karen S. Crawford issued a Report and Recommendation (“Report”)

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recommending that the motion to dismiss be granted with leave to amend. [Doc. No. 38.]

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On July 20, 2018, Plaintiff filed objections to the Report. [Doc. No. 39.] For the reasons

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set forth below, the Report is ADOPTED and the motion to dismiss is GRANTED with

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leave to amend.

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REVIEW OF REPORT AND RECOMMENDATION
The duties of the district court in connection with a report and recommendation of

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a magistrate judge are set forth in Federal Rules of Civil Procedure 72(b) and 28 U.S.C. §

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636(b). The district judge must “make a de novo determination of those portions of the

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report . . . to which objection is made,” and “may accept, reject, or modify, in whole or in

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part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. §

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636(b). The district court need not review de novo those portions of a report and

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recommendation to which neither party objects. See Wang v. Masaitis, 416 F.3d 992,

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1000 n. 13 (9th Cir. 2005); U.S. v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir. 2003)

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(en banc).

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DISCUSSION

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A. Count 2 (Double Celling/Right to Privacy).

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As noted by Magistrate Judge Crawford, a prisoner does not have a constitutional

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right to be housed in a single cell. See Rhodes v. Chapman, 452 U.S. 337, 347-48 (1981)

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(holding that double-celling does not violate Eighth Amendment when it does not involve

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conditions amounting to unnecessary and wanton pain); Ford v. Ramirez-Palmer, 301

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F.3d 1043, 1051 (9th Cir. 2002) (“Double-celling as such is not constitutionally

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impermissible.”). Rather, the Eighth Amendment's proscription of excessive punishment

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bars conditions of confinement that are incompatible with evolving standards of decency.

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See Estelle v. Gamble, 429 U.S. 97, 102-03 (1976). The Constitution does not mandate

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that prison conditions be comfortable, “but neither does it permit inhumane ones.”

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Farmer v. Brennan, 511 U.S. 825, 832 (1994). “Prison officials have a duty to ensure that

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prisoners are provided adequate shelter, food, clothing, sanitation, medical care, and
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personal safety.” Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000). “The

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circumstances, nature, and duration of a deprivation of necessities must be considered in

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determining whether a constitutional violation has occurred.” Hearns v. Terhune, 413

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F.3d 1036, 1042 (9th Cir. 2005) (citing Johnson, 217 F.3d at 731 (alteration omitted)).2

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As also noted by Magistrate Judge Crawford, two requirements must be met to

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establish an Eighth Amendment violation based on jail conditions: (1) the deprivation

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alleged must objectively have been “sufficiently serious” in that an official's act or

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omission resulted in the denial of “the minimal civilized measure of life's necessities,”

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and (2) the prison official must have had a “sufficiently culpable state of mind,” namely,

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“deliberate indifference” to the inmate's health or safety. Farmer, 511 U.S. at 834

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(citation omitted); see also Wilson v. Seiter, 501 U.S. 294, 298-99 (1991). “Deliberate

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indifference” is established only when an official “knows that inmates face a substantial

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risk of serious harm and disregards that risk by failing to take reasonable measures to

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abate it.” Farmer, 511 U.S. at 847.

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Here, Plaintiff fails to allege deprivation of his basic needs or that prison officials

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ignored an obvious risk to plaintiff’s health or safety. In addition, Plaintiff’s allegation

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that he was forced to share a cell with other inmates who had mental health disorders

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without compatibility screening does not state an Eighth Amendment claim. Allen v.

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Figueroa, 56 F.3d 70, at *7 (9th Cir. 1995)(unpublished disposition)(no Eighth

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Amendment or Due Process right to be housed with inmate of one’s choice); Allen v.

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In his objections, Plaintiff cites to Dohner v. McCarthy, 635 F.Supp. 508 (C.D. Cal. 1985) for the
proposition that “the Federal Court recognized there are prisoners who have psychological needs
requiring single cells.” [Doc. No. 39 at 4.] However, Dohner does not hold that all prisoners who have
psychological needs require single cells. In fact, Dohner held that, in that case, double-celling did not
violate the Eighth Amendment. 635 F. Supp. at 426-27. Plaintiff also cites to Delgado v. Cady, 576
F.Supp. 1446 (E.D. Wis. 1983) as somehow requiring that prisons evaluate prisoners with psychological
or psychiatric problems prior to double-celling them. [Doc. No. 39 at 4.] However, due to unique
circumstances in that case involving suicidal prisoners, the Delgado court ordered those defendants to
devise a new evaluation system. Here, Plaintiff’s allegations are generally that it is unconstitutional to
double-cell prisoners due to “thousands of incident reports.” But this is insufficient to state an Eighth
Amendment claim, as Plaintiff fails to allege how he has been deprived of his basic needs.
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Purkett, 5 F.3d 1151, 1153 (8th Cir. 1993)(no Due Process right to be housed with

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compatible inmate); Bjorlin v. Hubbard, No. CIV S-09-1793, 2010 WL 457685, *1

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(E.D. Cal. Feb. 4, 2010)(same).

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Finally, it appears that Plaintiff may be attempting to state a claim for violation of

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his right to privacy under the Fourth Amendment when he alleges “the daily violation of

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his bodily privacy rights.” [Doc. No. 3 at 10.] However, as noted by Magistrate Judge

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Crawford, “’[a] right to privacy in traditional Fourth Amendment terms is fundamentally

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incompatible with the close and continual surveillance of inmates and their cells required

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to insure institutional security and internal order.’” [Doc. No. 38 at 8, citing Hudson v.

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Palmer, 468 U.S. 517, 526 (1984).] While “incarcerated prisoners retain a limited right

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to bodily privacy,” Michenfelder v. Sumner, 860 F.2d 328, 338 (9th Cir. 1988), a prisoner

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plaintiff “bears the burden of pleading and proving the absence of legitimate correctional

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goals for the conduct of which he complains.” Bruce v. Y1st, 351 F.3d 1283, 1289 (9th

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Cir. 2003). Here, plaintiff has not alleged any facts to indicate that any loss of bodily

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privacy that results from double celling is unreasonable or unjustified under the

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circumstances.

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Accordingly, the Report is ADOPTED as to Count 2 and the motion to dismiss Count
2 is GRANTED with leave to amend.
B. Count 3 (Equal Protection).
As noted by Magistrate Judge Crawford, to state an equal protection claim, plaintiff

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must either allege that defendants acted with an intent or purpose to discriminate against

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the plaintiff based upon membership in a protected class,” Barren v. Harrington, 152

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F.3d 1193, 1194 (9th Cir. 1998), or that he has been “intentionally treated differently

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from others similarly situated and that there is no rational basis for the difference in

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treatment,” Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Plaintiff has

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done neither. Rather he alleges that the policies and procedures in Exhibit G (housing

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policy memorandum) allow prison officials to “pick and choose” which prisoners are

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entitled to be housed in “single cells.” [Doc. No. 3 at 12.] However, on its face, the
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policy memorandum is not discriminatory, as it sets forth a long list of legitimate factors

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to be considered to determine whether single cell status is appropriate for a particular

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inmate. [Doc. No. 3 at 56-58.] Therefore, Plaintiff fails to state an equal protection

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claim. Accordingly, the Report is ADOPTED and the motion to dismiss Count 3 is

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GRANTED with leave to amend.

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CONCLUSION

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For the reasons set forth above, the Court HEREBY ORDERS:

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(1) The Report [Doc. No. 38] is ADOPTED;

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(2) Defendants’ motion to dismiss Counts 2 and 3 of the Complaint [Doc. No. 32]

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is GRANTED WITH LEAVE TO AMEND;
(3) If Plaintiff wishes to amend Counts 2 and 3, then he SHALL FILE a First

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Amended Complaint (“FAC”) by October 12, 2018. Plaintiff is reminded that

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the FAC must be identified as his First Amended Complaint, include Civil Case

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No. 17cv1123-CAB-KSC in its caption, name the all parties he wishes to sue,

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and allege all the claims he wishes to pursue (including Count 1) in one single,

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clear, and concise pleading;

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(4) The Clerk of the Court is DIRECTED to provide Plaintiff with a copy of its

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form Civil Rights Complaint pursuant to 42 U.S.C. § 1983 for Plaintiff’s use

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should he choose to file a FAC.

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(5) If Plaintiff does not file a FAC by October 12, 2018, then Defendants SHALL

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ANSWER the Complaint, as modified by this order, by October 26, 2018.

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Dated: August 29, 2018

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