1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 REGINALD WAYNE WHATLEY, Case No.: 1:22-cv-00270-CDB 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO

DISMISS CERTAIN CLAIMS FOLLOWING

13 v. SCREENING

14 THERESA CISNEROS, et al., (Docs. 22, 23)

15 Defendants. 14-DAY OBJECTION PERIOD

16 Clerk of the Court to assign District Judge

17

18 Plaintiff Reginald Wayne Whatley is proceeding pro se and in forma pauperis in this civil 19 rights action pursuant to U.S.C. section 1983. 20 I. INTRODUCTION 21 The Court issued its First Screening Order Requiring Response from Plaintiff on August 22 4, 2023. (Doc. 17.) Plaintiff was directed to file one of the following: (1) a first amended 23 complaint limited to 25 pages; (2) written notice that he wished to stand on his complaint; or (3) a 24 notice of voluntary dismissal. (Id. at 9.) 25 Following the Court’s grant of two requested extensions of time (see Docs. 19, 21), on 26 November 15, 2023, Plaintiff timely filed his first amended complaint. (Doc. 22.) 27 II. SCREENING REQUIREMENT 1 governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 2 The Court must dismiss a complaint or portion thereof if the complaint is frivolous or malicious, 3 fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant 4 who is immune from such relief. 28 U.S.C. § 1915A(b). The Court should dismiss a complaint if 5 it lacks a cognizable legal theory or fails to allege sufficient facts to support a cognizable legal 6 theory. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 7 III. PLEADING REQUIREMENTS 8 A. Federal Rule of Civil Procedure 8(a) 9 “Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited 10 exceptions.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513 (2002). A complaint must contain 11 “a short and plain statement of the claims showing that the pleader is entitled to relief.” Fed. R. 12 Civ. P. 8(a)(2). “Such a statement must simply give the defendant fair notice of what the 13 plaintiff’s claim is and the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512 (internal 14 quotation marks & citation omitted). 15 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a 16 cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 17 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must 18 set forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’” 19 Id. (quoting Twombly, 550 U.S. at 570). Factual allegations are accepted as true, but legal 20 conclusions are not. Id. (citing Twombly, 550 U.S. at 555). 21 The Court construes pleadings of pro se prisoners liberally and affords them the benefit of 22 any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citation omitted). However, “the 23 liberal pleading standard . . . applies only to a plaintiff’s factual allegations,” not his legal 24 theories. Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989). Furthermore, “a liberal interpretation 25 of a civil rights complaint may not supply essential elements of the claim that were not initially 26 pled,” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (internal 27 quotation marks & citation omitted), and courts “are not required to indulge unwarranted 1 marks & citation omitted). The “sheer possibility that a defendant has acted unlawfully” is not 2 sufficient to state a cognizable claim, and “facts that are merely consistent with a defendant’s 3 liability” fall short. Iqbal, 556 U.S. at 678 (internal quotation marks & citation omitted). 4 B. Linkage and Causation 5 Section 1983 provides a cause of action for the violation of constitutional or other federal 6 rights by persons acting under color of state law. See 42 U.S.C. § 1983. To state a claim under 7 section 1983, a plaintiff must show a causal connection or link between the actions of the 8 defendants and the deprivation alleged to have been suffered by the plaintiff. See Rizzo v. Goode, 9 423 U.S. 362, 373-75 (1976). The Ninth Circuit has held that “[a] person ‘subjects’ another to the 10 deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative 11 act, participates in another’s affirmative acts, or omits to perform an act which he is legal required 12 to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 13 743 (9th Cir. 1978) (citation omitted). 14 C. Supervisory Liability 15 Liability may not be imposed on supervisory personnel for the actions or omissions of 16 their subordinates under the theory of respondeat superior. Iqbal, 556 U.S. at 676-77; see e.g., 17 Simmons v. Navajo Cty., Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010) (plaintiff required to 18 adduce evidence the named supervisory defendants “themselves acted or failed to act 19 unconstitutionally, not merely that subordinate did”), overruled on other grounds by Castro v. 20 C’nty of Los Angeles, 833 F.3d 1060, 1070 (9th Cir. 2016); Jones v. Williams, 297 F.3d 930, 934 21 (9th Cir. 2002) (“In order for a person acting under color of state law to be liable under section 22 1983 there must be a showing of personal participation in the alleged rights deprivation: there is 23 no respondeat superior liability under section 1983”). 24 Supervisors may be held liable only if they “participated in or directed the violations, or 25 knew of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th 26 Cir. 1989). “The requisite causal connection may be established when an official sets in motion a 27 ‘series of acts by others which the actor knows or reasonably should know would cause others to 1 v. Baca, 652 F.3d 1202, 1205-06 (9th Cir. 2011) (supervisory liability may be based on inaction 2 in the training and supervision of subordinates). 3 Supervisory liability may also exist without any personal participation if the official 4 implemented “a policy so deficient that the policy itself is a repudiation of the constitutional 5 rights and is the moving force of the constitutional violation.” Redman v. Cty. of San Diego, 942 6 F.2d 1435, 1446 (9th Cir. 1991) (citations & quotations marks omitted), abrogated on other 7 grounds by Farmer v. Brennan, 511 U.S. 825 (1970). 8 To prove liability for an action or policy, the plaintiff “must ... demonstrate that his 9 deprivation resulted from an official policy or custom established by a ... policymaker possessed 10 with final authority to establish that policy.” Waggy v. Spokane County Washington, 594 F.3d 11 707, 713 (9th Cir.2010). When a defendant holds a supervisory position, the causal link between 12 such defendant and the claimed constitutional violation must be specifically alleged. See Fayle v. 13 Stapley, 607 F.2d 858, 862 (9th Cir. 1979). Vague and conclusory allegations concerning the 14 involvement of supervisory personnel in civil rights violations are not sufficient. See Ivey v. 15 Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 16 IV. DISCUSSION 17 A. Plaintiff’s First Amended Complaint 18 Plaintiff names Warden Theresa Cisneros and Facility Captain A. Baer, employed at the 19 California Substance Abuse Treatment Facility (SATF) in Chowchilla, as well as Kathleen 20 Allison, the Director of the California Department of Corrections and Rehabilitation (CDCR), as 21 Defendants in this action. (Doc. 22 at 1, 5.) Plaintiff seeks monetary damages, attorney’s fees,1 22 and costs of suit. (Id. at 16.) 23 B. The Factual Allegations2 24 Plaintiff states he is a “life prisoner” and has been in CDCR custody since 2010 and 25 housed at SATF since 2019. (Doc. 22 at 6.) Plaintiff asserts SATF was constructed in 1998 and 26 1 Plaintiff, who is proceeding pro se, is not entitled to attorney’s fees. Kay v. Ehrler, 499 U.S. 432, 435 (1991). 27 2 Plaintiff’s first amended complaint includes a heading titled “Preliminary Statement.” (See Doc. 22 at 2-4.) The 1 CDCR “used one subcontractor to install all building roofs … using five part roofing method of a 2 steel deck, permeated vapour [sic] barrier to prevent water leakage ….” (Id. at 6-7.) The roofing 3 system “failed entirely at SATF, E Facility, Building E-3, wherein Plaintiff was housed.” (Id. at 4 7.) 5 Plaintiff asserts his cell suffered repeated water damage from the roof leak and it damaged 6 his personal property. (Doc. 22 at 7.) Polluted water from “animal feces, rodents, rats and bird 7 droppings” streamed down the ceilings and walls, affecting bedding, clothing, food storage, and 8 the floor. (Id.) Building E-3 “suffered consistent water damage” and “hazardous waste” was 9 present in several areas. (Id.) Plaintiff contends inmate porters were often assigned to mop up the 10 water in common areas of the building. (Id.) He maintains he was “involuntarily assigned to cell 11 E3-235-Low” on the second tier “in C range where all inmates on that range were required to exit 12 the tier from a single steel staircase upon order of staff ….” (Id.) Plaintiff asserts he repeatedly 13 sought ground floor accommodations due to the dangerous conditions, his limited mobility, 14 health, and age, but was denied lower bunk status. (Id. at 8.) 15 Next, Plaintiff contends that on June 4, 2019, in an action before the Kings County 16 Superior Court, a state court judge found the “extensive water leaks, mold and mice feces” in the 17 facility were unconstitutional and CDCR’s repairs were insufficient to prevent harm to the 18 inmates. (Doc. 22 at 8.) Plaintiff states that about six months after the state court’s decision, his 19 water cascading down the walls of his cell caused his television to short and endangering him due 20 to the threat of fire. (Id. at 9.) Plaintiff reported the incident; an officer indicated he would “log 21 the loss” and admitted prison staff were “aware that C Side cells leak when it rains.” (Id.) Plaintiff 22 states his television was replaced “[w]ithout argument.” (Id.) 23 On March 21, 2021, at about 6:30 a.m., Plaintiff alleges he fell from the metal stairs 24 “while using prudent, reasonable and diligent care during or immediately after a rain storm.” 25 (Doc. 22 at 9.) Grabbing the safety rails as he exited the second tier, Plaintiff’s right hand slipped 26 on the wet and slippery railing, causing him to lose his footing at the top of the stairs. (Id.) 27 Plaintiff states he “soared into the air landing on his back” and slid down 12 to 16 steps. (Id.) He 1 responding.” (Id.) Plaintiff was placed on a stretcher and received medical care. (Id. at 9-10.) 2 Plaintiff states his injuries were extensive. (Id. at 10.) He is designated ADA and mobility 3 impaired, is prohibited from lifting more than 19 pounds, has endured three years of continuing 4 physical therapy, repeated neurological specialist referrals, examinations, diagnostics, and 5 treatment. (Id.) 6 Plaintiff contends the named Defendants had a statutory and constitutional duty of care 7 and were “repeatedly and openly made aware of the deprivations and unconstitutional conditions, 8 readily admitted the inhabitable and unconstitutional conditions yet failed to correct them.” (Doc. 9 22 at 10.) He maintains the deprivations were serious and that Defendants were deliberately 10 indifferent by disregarding an excessive risk to his health and safety. (Id.) Plaintiff contends the 11 “two year protracted period between the Court’s Order of June 4, 2019, and the fall on March 15, 12 2021,” demonstrates a “callous disregard.” (Id.) He argues the Defendants “breached and 13 abandoned their constitutional duty of care,” directly causing his injuries. (Id.) 14 Plaintiff alleges he is “now infirm and unable to continue in [his chosen] field as a 15 Demolition expert and Recycleable Metal Dealer wherein he earned in excess of one hundred 16 thousand dollars a year.” (Doc. 22 at 11.) He states he “can no longer pick up even the lightest of 17 materials” after March 15, 2021. (Id.) 18 C. Plaintiff’s Claims 19 Plaintiff presents three claims against the named Defendants: (1) Eighth Amendment 20 conditions of confinement; (2) a state law negligence claim; and (3) a premises liability claim. 21 (Doc. 22 at 11-15.) Plaintiff asserts he has exhausted his administrative remedies and “has fully 22 exhausted with the State of California and the department all Tort Claims requirements within six 23 months of the accident.” (Id. at 15.) 24 Claim One: Eighth Amendment Conditions of Confinement 25 Plaintiff contends Defendants Cisneros, Baer, and Allison knowingly inflicted “physical, 26 emotional, and mental abuse upon Plaintiff due to the continuation, after issuance of the Kings 27 County Court Order of June 4, 2019, of the unconstitutional conditions and inhabitability of the 1 contamination, deploreable [sic] conditions causing extreme cold, hold, and flooded conditions in 2 housing units.” (Doc. 22 at 11.) He maintains Defendants “knew that such conditions would be 3 harmful” to his health and safety, but “failed to timely and effectively mitigate the danger and 4 risks.” (Id.) Defendants acted with reckless disregard, causing his injuries, and entitling him to 5 damages. (Id. at 11-12.) 6 The Eighth Amendment protects prisoners from inhumane methods of punishment and 7 from inhumane conditions of confinement. Farmer v. Brennan, 511 U.S. 825 (1994); Morgan v. 8 Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). Thus, no matter where they are housed, prison 9 officials have a duty to ensure that prisoners are provided adequate shelter, food, clothing, 10 sanitation, medical care, and personal safety. Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000) 11 (quotation marks & citations omitted). To establish a violation of this duty, a prisoner must first 12 demonstrate an objectively serious deprivation, one that amounts to the denial of “the minimal 13 civilized measures of life’s necessities.” Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir. 1996) 14 (quoting Rhodes v. Chapman, 452 U.S. 337, 346 (1981)). Second, a prisoner must demonstrate 15 that prison officials acted with “deliberate indifference.” Wilson v. Seiter, 501 U.S. 294, 303 16 (1991); Johnson, 217 F.3d at 733. A prison official is liable for denying an inmate humane 17 conditions of confinement only if “the official knows of and disregards an excessive risk to 18 inmate health and safety; the official must both be aware of facts from which the inference could 19 be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” 20 Farmer, 511 U.S. at 837. 21 “Slippery floors without protective measures could create a sufficient danger to warrant 22 relief” when an inmate alleges facts that exacerbate the danger resulting from such conditions. 23 Frost v. Agnos, 152 F.3d 1124, 1129 (9th Cir. 1998); Osolinski v. Kane, 92 F.3d 934, 938 (9th 24 Cir. 1996). 25 Liberally construing the first amended complaint, Plaintiff states plausible Eighth 26 Amendment conditions of confinement claims against Defendants Cisneros, Baer, and Allison. 27 He asserts those prison officials knowingly denied him the “minimal civilized measures of life’s 1 excessive risk presented; he contends all were aware of ongoing and long standing dangerous 2 conditions presented and state court findings that the conditions were dangerous and 3 unconstitutional, placing inmates at serious risk of harm. Farmer, 511 U.S. at 837; Johnson, 217 4 F.3d at 731; Frost, 152 F.3d at 1129; Keenan, 83 F.3d at 1089; Taylor, 880 F.2d at 1045. 5 Claim Two: State Law Negligence 6 Plaintiff contends Defendants failed “to alleviate the unconstitutional and inhabitable 7 conditions described” and that “their negligence in doing so” was the proximate cause of his 8 injuries. (Doc. 22 at 13.) He maintains they breached “their duty to protect the health and safety 9 of the Plaintiff,” causing his injuries.” (Id.) Plaintiff asserts the risk was “foreseeable, a certainty 10 due to the nature of the unconstitutional conditions with the Plaintiff totally under the exclusive, 11 care, custody and control” of the Defendants. (Id.) He states they “must carry the moral blame” 12 for his injuries and “had a duty to prevent said injuries and unconstitutional conditions and the 13 burden to do so.” (Id.) Plaintiff maintains he was subjected to physical, emotional, and mental 14 [abuse] … with no legal basis or purpose.” (Id.) Defendants’ acts were carried out knowingly, 15 willfully, maliciously and “with reckless disregard with deliberate indifference” to Plaintiff’s 16 rights. (Id.) Plaintiff states he suffered and continues to suffer from physical injuries and is 17 entitled to damages. (Id.) 18 Under California law, a public employee is liable for injury to a prisoner “proximately 19 caused by his negligent or wrongful act or omission.” Cal. Gov't Code § 844.6(d). The elements 20 of negligence under California law are: “‘(1) defendant’s obligation to conform to a certain 21 standard of conduct for the protection of others against unreasonable risks (duty); (2) failure to 22 conform to that standard (breach of duty); (3) a reasonably close connection between the 23 defendant's conduct and resulting injuries (proximate cause); and (4) actual loss (damages).’” 24 Corales v. Bennett, 567 F.3d 554, 572 (9th Cir. 2009) (quoting McGarry v. Sax, 158 Cal.App.4th 25 983 (2008)). 26 Liberally construing the first amended complaint, Plaintiff plausibly alleges state law 27 negligence claims against Defendants Cisneros, Baer, and Allison by asserting they had a duty of 1 damages. 2 Claim Three: Premises Liability 3 Plaintiff contends Defendants knew of the substantial risk of serious harm he faced and 4 “disregarded with deliberate indifference the risk by failing to act reasonably to avoid it.” (Doc. 5 22 at 14.) He asserts Defendants were negligent in “maintaining premises and were the proximate 6 cause” of his injuries, breaching their duty to protect his health and safety. (Id.) He maintains the 7 risk was “foreseeable, a certainty due to the nature of the unconstitutional conditions with the 8 Plaintiff totally under the exclusive, care, custody and control” of the Defendants. (Id. at 14-15.) 9 He states they “must carry the moral blame” for his injuries and “had a duty to prevent said 10 injuries and unconstitutional conditions and the burden to do so.” (Id. at 15.) Plaintiff maintains 11 he was subjected to physical, emotional, and mental [abuse] … with no legal basis or legitimate 12 penological purpose.” (Id.) Defendants’ acts were carried out knowingly, willfully, maliciously 13 and “with reckless disregard with deliberate indifference” to Plaintiff’s rights. (Id.) Plaintiff states 14 he suffered and continues to suffer from physical injuries and is entitled to damages. (Id.) 15 Under California law, “[p]remises liability is a form of negligence.” Brooks v. Eugene 16 Burger Mgmt. Corp., 215 Cal. App.3d 1611, 1619 (1989); see Wilson v. J.P. Allen Co., 57 17 F.Supp.3d 1249, 1253 (C.D. Cal. 2014) (“The same concepts of duty applicable to general 18 negligence claims apply to premises liability claims”). “The owner of premises is under a duty to 19 exercise ordinary care in the management of such premises in order to avoid exposing persons to 20 an unreasonable risk of harm. A failure to fulfill this duty is negligence.” Brooks, 215 Cal. 21 App.3d at 1619 (quoting BAJI 8.00 (1983 rev.)). Under California law “[t]he elements of a 22 negligence cause of action are: (1) a legal duty to use due care; (2) a breach of that duty; (3) the 23 breach was the proximate or legal cause of the resulting injury; and (4) actual loss or damage 24 resulting from the breach of the duty of care.” Wilson, 57 F.Supp.3d at 1253. 25 To state a premises liability claim, the plaintiff must allege “that the defendant owned or 26 controlled the property, that the defendant was negligent in the use or maintenance of the 27 property, that the plaintiff was harmed, and that the defendant’s negligence was a substantial 1 (N.D. Cal. 2014). “A person who owns or controls property is negligent if he or she fails to use 2 reasonable care to discover any unsafe conditions and to repair, replace, or give adequate warning 3 of anything that could be reasonably expected to harm others.” Id. at 1144-45. 4 The California Government Code provides that, other than certain exceptions, a public 5 entity is not liable for injury to a prisoner due to a dangerous condition of public property. Cal. 6 Gov. Code § 844.6(a)(2) and (c). By enacting this statute, the Legislature intended that prisons be 7 immune from claims by prisoners due to a dangerous condition of public property. Badiggo v. 8 Cty. of Ventura, 207 Cal. App.3d 357, 361 (1989). However, section 844.6 does not exonerate a 9 public employee from liability for an injury caused by his negligent act or omission. Cal. Gov. 10 Code § 844.6(d). 11 Even liberally construing the first amended complaint, Plaintiff fails to state cognizable 12 premises liability claims against the named Defendants. While Plaintiff plausibly alleges 13 Defendants were negligent, he fails to assert any named Defendant owned or controlled the 14 property. Carter, 63 F. Supp.3d at 1144. And it would appear granting Plaintiff leave to amend in 15 that regard would be futile.3 Clearly, the named Defendants do not own the property, and the 16 Court is skeptical it could be said they controlled the property in a liability context given the 17 Legislature’s intent to immunize prison officials from claims by prisoners due to a dangerous 18 condition of public property (see supra). Because Plaintiff has plausibly alleged negligence 19 claims against the Defendants, and because prisons are immune from claims by prisoners due to a 20 dangerous condition of public property, the Court will recommend the premises liability claims 21 be dismissed. 22 V. PLAINTIFF’S REQUEST FOR ISSUANCE OF SUMMONS 23 On October 10, 2024, Plaintiff filed a document titled “Plaintiff ask this Court to ‘Court 24 Stamp’ his Summons.” (Doc. 23.) He requests the Court issue a summons to Defendant Cisneros 25 “so he can have the Sheriff’s Office serve the warden.” (Id.) Plaintiff additionally asks whether 26 his first amended complaint is “still on the court’s calendar.” (Id.) He states he has “not heard 27

3 1 anything from this Court regarding his complaint.” (Id.) 2 Plaintiff’s request for issuance of a summons will be denied. As stated in the Court’s First 3 Informational Order in Prisoner/Civil Detainee Civil Rights Case, issued March 7, 2022, “the 4 Court will direct the United States Marshal to initiate service of the complaint on defendants” 5 once the Court has found the complaint “states a cognizable claim against the named defendants.” 6 (Doc. 4 at 3.) 7 Here, because the Court has now screened Plaintiff’s first amended complaint and will 8 recommend this action proceed only on his cognizable claims (claims one and two), if the district 9 judge assigned to this action adopts this Court’s recommendation, the Court will thereafter issue 10 an order concerning service of the first amended complaint by the United States Marshal. At this 11 stage, Plaintiff’s request is premature. 12 Finally, Plaintiff is advised that the undersigned presides over approximately 90 active 13 prisoner civil rights cases in various stages of litigation, and more than 300 other civil cases. 14 While the Court regrets the delay in the litigation of this action, delays are unavoidable given the 15 tremendous judicial resource emergency experienced throughout this District. 16 VI. CONCLUSION, ORDER, AND RECOMMENDATIONS 17 The Court ORDERS as follows: 18 1. The Clerk of the Court is DIRECTED to randomly assign a district judge to this 19 action; and 20 2. That Plaintiff’s motion for a summons (Doc. 23) be DENIED. 21 Further, based upon the foregoing, the Court RECOMMENDS as follows: 22 1. That this action PROCEED only on Plaintiff’s Eighth Amendment conditions of 23 confinement claims (claim one) and state law negligence claims (claim two); and 24 2. That Plaintiff’s state law premises liability claims (claim three) be DISMISSED. 25 These Findings and Recommendations will be submitted to the district judge assigned to 26 this case, pursuant to 28 U.S.C. § 636(b)(l). Within 14 days of the date of service of these 27 Findings and Recommendations, a party may file written objections with the Court. The 1 | Recommendations.” Failure to file objections within the specified time may result in waiver of 2 | rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 3 | Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 4 | IT IS SO ORDERED. ° Dated: _ October 11, 2024 | hr 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12