l 2 3 . 4 □ 5 ||. . 6

UNITED STATES DISTRICT COURT .

9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 |} HUMBERTO I. MIRANDA, Case No.: 3:19-cv-01605-LAB-RBM

CDCR #AU-3793,

13 |] . "| OF U.S. MAGISTRATE JUDGE 14 GRANTING IN PART AND RAYMOND MADDEN, Warden: DENYING IN PART DEFENDANTS IS RAMIREZ, Correctional Officer; and MOTION TO DISMISS 16 || FLORES Correctional Officer PLAINTIFF'S SECOND AMENDED ° ° COMPLAINT 17 Defendants. 18 [Doc. 30] 19 20 □□ INTRODUCTION 21 Plaintiff Humberto I. Miranda (“Plaintiff”), a state prisoner proceeding pro se and in 22 || forma pauperis, brings an action arising under 42 U.S.C. § 1983 (“Section 1983”) related 23 ||to Eighth Amendment conditions of confinement claim after wet and heavy objects from 24 || the ceiling allegedly fell on him and his girlfriend in a facility visitation room. The incident 25 || occurred while Plaintiff was a prisoner at Centinela State Prison (“CEN”). 26 On August 17, 2021, Defendants Raymond Madden (“Warden Madden”), 27 || Correctional Officer (“C/O”) Flores and C/O Ramirez filed a motion to dismiss (“MTD”) 28 || Plaintiff's second amended complaint (“SAC”). (Doc. 30.) Plaintiff filed his response to

1 MTD (“Opposition”) on November 8, 2021, and Defendants filed a reply (“Reply”) on 2 || November 15, 2021. (Docs. 38, 39.) 3 The undersigned issues a Report and Recommendation as to Defendants’ MTD 4 || pursuant to 28 U.S.C. § 636(b)(1)(B) and Civil Local Rules 72.1(c) and 72.3(a). After a 5 thorough review of the pleadings, papers, prior orders of the Court, the facts, and applicable 6 ||law, the undersigned respectfully recommends that Defendants’ motion to dismiss 7 Plaintiff's second amended complaint be GRANTED IN PART and DENIED IN PART. 8 ||The undersigned further recommends that any further requests for leave to amend 9 || Plaintiff's complaint be DENIED for the reasons outlined below. □ 10 Il. PROCEDURAL HISTORY 11 || On August 26, 2019, Plaintiff filed a complaint against Nancy Adam, John Doe, 12 || Kevin Reilly, Warden Madden, C/O Flores and C/O Ramirez alleging civil rights violations 13 arising under Section 1983. (Doc. 1.) Specifically, Plaintiff claimed Eighth Amendment 14 violations alleging deliberate indifference towards his conditions of confinement and 15 ||medical needs. (/d.) 16 On November 4, 2019, the Court granted Plaintiff leave to proceed in forma 17 || pauperis, conducted its initial screening of the complaint, and dismissed it sua sponte in 18 |/its entirety for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 19 || 1915A(b). (Doc. 5.) The Court granted Plaintiff forty-five days leave to file an amended 20 complaint to address all pleading deficiencies. (Jd. at 14.) 21 On January 27, 2020, Plaintiff filed an amended complaint (“FAC”). The Court’s 22 ||screening order dismissed Plaintiff's claim for inadequate medical care against all 23 || Defendants on May 26, 2020. (Doc. 9 at 14.) On April 28, 2021, the undersigned issued 24 report and recommendation granting Defendants’ motion to dismiss Plaintiff's FAC and 25 || granting Plaintiff leave to file a SAC, which was adopted by District Judge Larry Alan 26 |/Burns. (Docs. 25, 26.) Plaintiff filed a SAC (Doc. 29) on August 2, 2021, wherein he 27 renamed Warden Madden, C/O Flores, and C/O Ramirez and realleged an Eighth 28

1 || Amendment conditions of confinement claim. (Doc. 29 at 15.) The instant MTD seeks 2 || dismissal of said claim. (Doc. 30.) 3 I. FACTUAL BACKGROUND 4 For purposes of the instant MTD, the foregoing facts from the SAC are accepted as 5 |/true. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002). 6 A. Allegations in SAC 7 On August 22, 2015, Plaintiff was sitting at a table with his girlfriend Veronica 8 || Adame (“Adame”) in CEN’s C-Facility visiting room when suddenly and unexpectedly “a 9 || wet and heavy object hit Adame on the top of her head.” (Doc. 29 at 10, 4 10.) “Almost 10 |/immediately, more wet and heavy objects, water, and debri[s] that smelled of mildew fell 11 |! from the ceiling and struck both Plaintiff and Adame on the top of their head, neck, back, 12 ||and shoulders.” (/d.) Plaintiff “covered Adame with his body and [u]shered her under 1B their assigned table” to seek refuge. (Jd. at 10, § 11.) While Plaintiff and Adame were 14 || under the table, Plaintiff held onto the table “with his right arm” as “wet and heavy objects 15 || landed on top of his right shoulder.” (/d.) Afterwards, Plaintiff and Adame observed an 8 16 8-foot hole in the ceiling directly above where they were sitting, (Ud. at 11,912.) “Their 17 || food, money, and personal possessions were scattered on the floor and covered in water, 18 || ceiling tile, and debri[s].” “(Id.) □ 19 Defendants C/O Flores and C/O Ramirez allegedly laughed and stated, the “sky is 20 || falling” when they met Plaintiff and Adame. (/d. at 11,9 13.) Medical personnel were 21 || called to check Adame; however, medical aid was not requested for Plaintiff. (id.) When 22 Plaintiff asked C/O Flores and C/O Ramirez if they would call for medical aid, C/O 23 || Ramirez sarcastically asked, “are you serious?” and warned Plaintiff that his visitation 24 || would be terminated if he sought medical attention. (/d.) Plaintiff was seen by a nurse 25 || after Plaintiff notified “Sgt. Din about [D]efendants’ refusal to call for medical aid.” (Id. 26 || at 12, 13.) During this medical visit, Defendants allegedly laughed and told the nurse to 27 || ignore Plaintiff. (/d.) 28 .

1 Additionally, Plaintiff contends C/O Flores and C/O Ramirez were “assigned tc 2 || CEN’s C-Facility [v]isiting [r]oom for at least 90 days” before the ceiling collapsed. (Id 3 |/at 16, | 32.) Plaintiff alleges he and Adame notified C/O Flores and C/O Ramirez about 4 || the possible risk from the ceiling thirty days prior to the August 22, 2015 incident, but both 5 ||Defendants declined to submit an emergency maintenance work-order. (Id. at 17, 7.33.) 6 || Plaintiff alleges many other inmates and visitors also notified C/O Flores and C/O Ramirez 7 || about the leak in the visiting room’s ceiling. (Id. at 17, 35.) Plaintiff alleges C/O Flores 8 || and C/O Ramirez’s refusal to address the leaky ceiling placed Plaintiff in a substantial risk 9 ||for injury because the ceiling soaked with water, eroded, and eventually collapsed on 10 || Plaintiff and Adame. (Jd. at 37.) 11 Plaintiff also alleges that Warden Madden was “well aware of a leak coming from 12 ceiling in CEN’s C-F acility visiting room” after a committee composed of inmate 13 || visitors, including Adame, reported “the leak in the visiting room . . . directly to 14 || [D]efendant Madden . . . 30 days prior to the incident of August 22, 2015.” (dd. at 15-16, 15 28.) In addition to the foregoing notice, Warden Madden attended a meeting where the 16 || committee reported the growing water stains in the ceiling tiles and requested that the area 17 |) under the leak be closed off to inmates and visitors to avoid unnecessary injury. (/d. atf 18 19 B. Prayer for Relief 20 Plaintiff seeks declaratory relief, compensatory and punitive damages, costs, and 21 (id. at 20, J] 49-51.) This includes compensatory damages in the amount of 22 |1$250,000 against each Defendant, jointly and severally; and punitive damages in the 23 amount of $250,000 against each Defendant. (/d.) 24 IV. LEGAL STANDARD 25 A. Motion to Dismiss 26 A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil 27 || Procedure tests the legal sufficiency of the claims asserted in the complaint. FED. R. Civ. 28 ||P. 12(b)(6); Navarro v. Block, 250 F.3d 729, 932 (9th Cir. 2001). The motion may be

1 || granted only if the complaint lacks a “cognizable legal theory” or sufficient facts to support 2 ||acognizable legal theory. Hartmann v. Cal. Dep’t of Corr. & Rehab., 707 F.3d 1114, 1122 3 || (9th Cir. 2013) (internal quotations and citations omitted). Although a complaint need not 4 contain detailed factual allegations, it must plead “enough facts to state a claim to relief 5 || that is plausible on its face.” Bell Atl. Corp v. Twombly, 550 U.S. 544, 570 (2007). “A 6 ||claim has facial plausibility when the plaintiff pleads factual content that allows the court 7 ||to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 8 || Ashcroft v. Igbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). 9 “[A] plaintiff's obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ 10 requires more than labels and conclusions, and a formulaic recitation of the elements of a 11 cause of action will not do.” Twombly, 550 U.S. at 555 (quoting Papasan vy. Allain, 478 12 ||U.S. 265, 286 (1986) (alteration in original)). A court need not accept “legal conclusions” 13 true. Iqbal, 556 U.S. at 678. 14 In deciding a 12(b)(6) motion, “all material allegations of the complaint are accepted 15 true, as well as all reasonable inferences to be drawn from them.” Navarro, 250 F.3d at 16 (citing Cahill v. Liberty Mut. Ins..Co., 80 F.3d 338 (9th Cir. 1996)). But “to be entitled 17 ||to the presumption of truth, allegations in a complaint . . . may not simply recite the 18 elements of a cause of action, but must contain sufficient allegations of underlying facts to 19 || give fair notice and to enable the opposing party to defend itself effectively.” Starr v. Baca, 20 || 652 F.3d 1202, 1216 (9th Cir. 2011). 21 In reviewing the sufficiency of a complaint, the court is limited to the complaint 22 |\itself and its attached exhibits, documents incorporated by reference, and matters properly 23 subject to judicial notice. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322— 24 (2007); see also Inre NVIDIA Corp. Sec. Litig., 768 F.3d 1046, 1051 (9th Cir. 2014). 25 Standard for Pro Se Litigants 26 Where a plaintiff appears in propria persona in a civil rights case, the court must 27 || construe the pleadings liberally and afford the plaintiff any benefit of the doubt. Karim- 28 || Panahi v. L.A. Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). The rule of liberal 5 □

1 ||construction is “particularly important in civil rights cases.” Ferdik v. Bonzelet, 963 F.2d 2 ||1258, 1261 (9th Cir. 1992). In giving a liberal interpretation to a pro se civil rights 3 ||complaint, courts may not “supply essential elements of the claim[s] that were not initially 4 ||pled.” Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 5 ||“Vague and conclusory allegations of official participation in civil rights violations are not 6 || sufficient to withstand a motion to dismiss.” Ivey, 673 F.2d at 268; see also Jones v. Cmty. 7 ||Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984) (finding conclusory allegations 8 || unsupported by facts insufficient to state a claim under Section 1983). “The plaintiff must 9 allege with at least some degree of particularity overt acts which defendants engaged in || that support the plaintiffs claim.” Jones, 733 F.2d at 649 (internal quotation omitted). 11 Notably, the court must give a pro se litigant leave to amend his complaint “unless 12 it determines the pleading could not possibly be cured by the allegation of other facts.” 13 || Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). Thus, before a pro se civil rights 14 complaint may be dismissed, the court must provide the plaintiff with a statement of the 15 ||complaint’s deficiencies. Karim-Panahi, 839 F.2d at 623-24. But where amendment of a 16 || pro se litigant’s complaint would be futile, denial of leave to amend is appropriate. See 17 || James v. Giles, 221 F.3d 1074, 1077 (9th Cir. 2000). 18 Vv. DISCUSSION 19 Defendants seek to dismiss Plaintiff s Eighth Amendment conditions of confinement 20 claim against Warden Madden, C/O Flores, and C/O Ramirez arguing that Plaintiff's SAC 21 to state a cause of action under the Eighth Amendment in that a leaking air- 22 conditioning unit is not an objectively sufficiently serious harm and because there are no 23 || facts to suggest deliberate indifference by any Defendant. (Doc. 30 at 5-8.) Defendants 24 || also seek dismissal claiming Defendants are entitled to qualified immunity because even if 25 ||a constitutional violation is found, Plaintiffs right was not clearly established. (/d. at 8- 26 ||9.) Plaintiff counters that viable claims exist because Defendants exposed Plaintiff to cruel 27 ||and unusual punishment by way of unsafe conditions of confinement and each Defendant 28 || acted with deliberate indifference to those conditions. (Doc. 29 at 20, 47.)

1 A. Eighth Amendment Conditions of Confinement Claim 2 “Tt is undisputed that the treatment a prisoner receives in prison and the conditions 3 ||under which [the prisoner] is confined are subject to scrutiny under the Eighth 4 || Amendment.” Helling v. McKinney, 509 U.S. 25, 31 (1993); see also Farmer v. Brennan, 5 |/511 U.S. 825, 832 (1994). The Eighth Amendment requires that prison officials take 6 reasonable measures to guarantee the safety and well-being of prisoners. Farmer, 511 U.S. 7 || at 832-833; Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000). “To determine whether 8 || the conditions of [a plaintiffs] confinement constitut[e] cruel and unusual punishment, [a 9 || court] must assess whether [plaintiff] was deprived of the “minimal civilized measure of 10 ||life’s necessities.” Frost v. Agnos, 152 F.3d 1124, 1128 (1991) (quoting Wilson v. Seiter, 11 U.S. 294, 304 (1991)). The Eighth Amendment analysis consists of both an objective 12 ||and subjective test. Under the objective test, a plaintiff must allege facts sufficient to 13 || plausibly show that he faced conditions posing a “substantial risk of serious harm” to his 14 ||health or safety; and under the subjective test, a plaintiff must allege facts demonstrating 15 the individual prison official was “deliberately indifferent” to those risks. Farmer, 16 U.S. at 837; Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010). 17 i. Objective Test: Exacerbating Condition Requirement 18 California district courts have held that conditions such as slippery floors, without 19 more, “do not state . .. an arguable claim for cruel and unusual punishment.” Jackson v. 20 || State of Ariz., 885 F.2d 639, 641 (9th Cir. 1989), superseded by statute on other grounds 21 ||as stated in Lopez, 203 F.3d at 1130-31. Even in cases involving hazardous conditions 22 ||coupled with a prison staff's knowledge or failure to repair such condition, to impose 23 liability under the Eighth Amendment, courts generally require an exacerbating condition. 24 || See, 2.2, Wallace v. Sherman, 1:20-cv-00213 (EPG)(PC), 2020 WL 4193968 (E.D. Cal. 25 || July 21, 2020) (dismissing complaint that alleged a leaky roof that prison staff knew of, 26 || which caused plaintiff to slip and fall resulting in a head injury, was not an Eighth 27 || Amendment violation). For example, in Osolinski v. Kane, 92 F.3d 934 (9th Cir. 1996), 28 || where an oven door fell off and burned plaintiff because prison officials failed to make 5

1 |/repairs, the Court noted plaintiffs failure to allege facts demonstrating that he could not 2 protect himself from the danger. (/d. at 938.) The Court found no Eighth Amendment 3 || violation as the obj ective test failed and it ultimately reversed and remanded to dismiss the 4 || case on qualified immunity grounds. (/d. at 939.) 5 An example of an exacerbating condition includes circumstances where a prisoner 6 ordered to continue operating equipment, despite the prison’s knowledge of its defects 7 ||or danger. Morgan v. Morgensen, 465 F.3d. 1041, 1045 (9th Cir. 2006) (finding prison’s 8 ||order to work dangerously defective printing press would constitute an exacerbating 9 || condition); Hoptowit v. Spellman, 753 F.2d779 (9th Cir. 1985) (finding inadequate lighting 10 |/exacerbated safety hazards in prison’s occupational areas). Another example of an 11 ||exacerbating condition includes circumstances where a dangerous condition exists, 12 ||coupled with past instances of injury involving a handicapped plaintiff. Frost v. Agnos, 13 F.3d 1124 (9th Cir. 1998). In Frost, where a pretrial detainee who wore a leg cast fell 14 ||multiple times in a slippery bathroom because officials denied him a handicapped- 15 | accessible shower, the Court held that the plaintiff could state a Section 1983 claim. Id. at 16 |}1129. The Court reasoned that because plaintiff had fallen and injured himself multiple 17 ||times while on crutches, this set of facts was distinguishable from Jackson where slippery 18 || floors by themselves did not constitute cruel and unusual punishment. Frost, 152 F.3d at 19 1124; Jackson, 885 F.2d at 639. 20 Here, Plaintiff alleges the ceiling leak posed a danger to himself, Adame, and other 21 || visitors as the ceiling soaked with water, eroded, and eventually collapsed on Plaintiff and 22 || Adame. (Doc. 29 at 17, q 37.) Plaintiff also alleges “inmates are assigned to specific tables 23 || where they are to visit with their guest” and Plaintiff claims he “did not have a choice as 24 where to sit [during] his visit [on August 22, 2015] with [Adame].” (Jd. at 17-18, □□ 25 ||38-39.) The allegation of being assigned to sit beneath a leaky and/or faulty ceiling rises 26 the level of an exacerbating condition similar to Morgan where the Court found an order 27 continue operating dangerously defective equipment could constitute an exacerbating 28 ||condition. Morgan, 465 F.3d. at 1045. Defendants attempt to distinguish Morgan by

1 || arguing that Plaintiff's visit was discretionary, and thus, does not meet the “danger plus” 2 || standard.! (Doc. 39 at 1-2) Specifically, Defendants claim Plaintiff was “not forced to 3 || proceed with the visit” and he “voluntarily sat in his assigned seating.” (Doc. 30 at 8.) 4 || While Plaintiff's SAC generally alleges he had prior knowledge of the leaky ceiling, the 5 ||SAC also claims that the ceiling collapsed “suddenly and unexpectedly” such that any 6 || voluntary action and/or assumption.of the risk argument fails. (Doc. 29 at 10, 17 10, 7 ||33.) In any event, Defendants do not deny their prior knowledge and failure to repair the 8 || leaky ceiling, nor do they deny that Plaintiff was specifically assigned to sit in the area 9 || immediately beneath the leaky ceiling during his visitation on August 22, 2015. Because 10 || Plaintiffs SAC alleges an exacerbating condition to demonstrate a substantial risk of harm, 11 || Plaintiff meets the objective test under the Eighth Amendment. Morgan, 465 F.3d. at 1045; 12 || Osolinksi, 92 F.3d at 939. 13 ii. Subjective Test: Deliberate Indifference Requirement 14 To demonstrate. deliberate indifference, a plaintiff must allege facts sufficient to 15 || plausibly show that the defendant both knew of and disregarded a substantial risk of serious 16 || harm to his health and safety. Farmer, 511 U.S. at 837. Thus, a plaintiff must allege “the 7 . 18 . 19 . ' In their Reply, Defendants also attempt to discredit Morgan because the opinion was 20 || amended upon rehearing and the issue of whether the “danger plus” standard was met could 21 ||not be resolved on summary judgment. (Doc. 39 at 1-2 (citing Morgan, 465 F.3d. 1041).) 5 It is correct that the “danger plus” issue could not be resolved in Morgan because 2 contradictory evidence that inmates were permitted to refuse employer orders precluded 23 ||summary judgment as it presented a genuine issue of material fact. Morgan, 465 F.3d. at 4 1046. However, at the same time, the Morgan Court acknowledged that the evidence 24 || showed the prison supervisor violated the prisoner’s “constitutional right not to be 25 ||compelled to perform work that endangered his safety and caused undue pain.” Id. Therefore, the fact that the opinion was amended upon rehearing does not change the 26 || instant analysis. In any event, here, Defendants filed a MTD under Rule 12(b)(6) and not 27 ||a motion for summary judgment, therefore, the undersigned will accept as true “all material 28 allegations of the complaint . . . as well as all reasonable inferences to be drawn from them.” FED. R. CIv. P. 12(b)(6); Navarro, 250 F.3d at 932 (citing Cahill, 80 F.3d at 338).

1 || official [was] both .. . aware of facts from which the inference could be drawn that a 2 || substantial risk of serious harm exist[ed], and [that] he . . . also dr[e]w that inference.” Jd. 3 Here, Plaintiff alleges that Defendants were aware of the ceiling leak because a 4 || visitors’ committee notified Warden Madden of the issue on multiple occasions, including 5 |/a meeting that took place thirty days before the ceiling collapsed on Plaintiff and Adame. 6 ||(Doc. 29 at 16, § 28.) Despite the concerns, Warden Madden allegedly failed to take 7 ||immediate and precautionary measures to prevent injury by not ordering the ceiling’s 8 ||repair. (Id., 31.) Plaintiff also alleges C/O Flores and C/O Ramirez were assigned to 9 || CEN’s C-Facility visiting room for at least ninety days prior to the incident and visitors 10 || and other inmates put them on notice of the leak, but C/O Flores and C/O Ramirez waived 11 ||the concerns as non-sense and refused to submit a maintenance request. (Id. at 17, 7§ 33, 12 ||37.) Additionally, Plaintiff alleges both Officers laughed after Plaintiff and Adame 13 ||reported the incident. Ud. at 11, 4 13.) C/O Flores and C/O Ramirez’s alleged conduct is 14 || similar to the defendants’ conduct in Robinson v. Prunty, 249 F.3d 862, 867 (9th Cir. 2001), 15 || where the Court found prison officials’ alleged awareness and indifference to a serious risk 16 |/of violent outbreaks, coupled with alleged joking and failure to intervene, demonstrated 17 || deliberate indifference. (Doc. 9 at 13.) Based on the SAC’s allegations, it plausibly alleges 18 Defendants knowingly disregarded the ceiling leak and the risks it posed to inmates 19 || seated beneath it. (Id. at 12-13.) Therefore, Plaintiff alleges sufficient facts to support a 20 || cognizable Eighth Amendment claim for deliberate indifference. See supra pp. □□□□□ 21 Based upon the foregoing, the undersigned respectfully recommends Defendants’ 22 ||request to dismiss Plaintiff's Eighth Amendment claim be DENIED. 23 B. Qualified Immunity 24 The undersigned now turns to Defendants’ qualified immunity argument, wherein 25 || they allege similar cases did not give Defendants a “fair warning” that their conduct was 26 unlawful. (Doc. 30 at 8-11.) Plaintiffcontends that Morgan and Osolinksi clearly establish 27 Plaintiffs right to be free from unsafe. conditions of confinement which involved 28 || dangerous work equipment, rather than dangerous visiting conditions. (Doc. 38 at □□□□□□□ 10

1 (citing Morgan, 465 F.3d. at 1045; Osolinksi, 92 F.3d at 939). 2 Qualified immunity shields government officials from liability for civil damages 3 || unless their conduct violates clearly established statutory or constitutional rights of which 4 reasonable person would have known. Anderson v. Creighton, 483 U.S. 635, □□□□□□ 5 ||(1987). The U.S. Supreme Court set forth a two-part analysis for determining government 6 || officials’ qualified immunity defense. First, the court must consider whether the facts 7 ||“[t]Jaken in the light most favorable to the party asserting the injury . . . show [that] the 8 || [defendant’s] conduct violated a constitutional right[.]” Saucier v. Katz, 533 U.S. 194, 201 9 ||(2001); see also Scott v. Harris, 550 U.S. 372, 377 (2007). Secondly, the court must 10 determine whether that right was clearly established at the time of the challenged conduct. 11 || Katz, 533 U.S. at 201. . 12 i. Violation of a Constitutional Right 13 Plaintiff alleges Defendants were deliberately indifferent to his conditions of 14 |\confinement after wet and heavy objects from the ceiling fell on him and Adame during 15 visitation. As explained above, supra pp. 7-10, construing Plaintiff's pleadings liberally 16 affording Plaintiff any benefit of the doubt, Plaintiff's SAC plausibly alleges that 17 || CEN’s C-Facility visiting room ceiling posed an objectively substantial risk of serious 18 ||danger to inmates seated beneath it, and Defendants knowingly disregarded that risk. 19 || Karim-Panahi, 839 F.2d at 623. Therefore, the first question is answered in the affirmative. 20 ii. Clearly Establ ished 21 However, the undersigned agrees with Defendants that Plaintiff's right to be free 22 || from being ordered to sit underneath a leaky ceiling was not clearly established at the time 23 ||of the alleged events in 2015 for purposes of asserting an Eighth Amendment claim. 24 || Although courts have recognized that a dangerous condition with an exacerbating condition contributing to the injury is sufficient to violate the Eighth Amendment, there is no robust 26 “consensus of cases of persuasive authority” providing Defendants a “fair warning” that 27 ||their conduct was unconstitutional: Saucier, 533 U.S. at 202; see also Osolinski, 92 F.3d 28 || at 934 (finding no Eighth Amendment claim where plaintiff failed to allege exacerbating 11

1 || conditions that rendered him unable to provide for his own safety from a defective oven 2 door); Morgan, 465 F.3d. at 1041 (finding an Eighth Amendment claim where officials 3 || ordered plaintiff to operate a dangerously defective printing press); Frost, 152 F.3d at 1124 4 || (finding Eighth Amendment claim where plaintiff, who wore a leg cast, fell multiple times 5 slippery bathroom after officials denied plaintiff a handicapped bathroom). Moreover; 6 || the above-referenced cases are clearly distinguishable from the instant case as they involve || defective devices and slippery floors. 8 Although the Court need not identify a case dealing with the particular facts to find _9 || Defendants’ conduct unreasonable, binding precedent at the time of the 2015 incident did 10 || not clearly establish Plaintiffs right to be free from being ordered to sit underneath a leaky 11 ||ceiling. Anderson, 483 U.S. at 640. Therefore, a reasonable person in Defendants’ 12 positions would not understand that ordering Plaintiff to sit underneath a known ceiling 13 || leak would violate Plaintiff's Eighth Amendment right. . 14 Absent binding precedent, the undersigned looks towards other district courts and 15 ||federal circuits involving leaks to determine whether Plaintiff's right was clearly 16 |l/established. Lum v. Jensen, 876 F.2d 1385, 1387 (9th Cir. 1989); see Gilman v. Woodford, 17 ||No. CIV $-05-0337 FCD GGH P, 2006 WL 1049739, at * 1 (E.D. Cal. Apr. 20, 2006) 18 || aff'd, 269 F. App’x 756 (9th Cir. 2008) (inmate injured in dormitory because of a leaking 19 || pipe failed to state an Eighth Amendment violation); Washington v. Sandoval, No. C 10- 20 ||0250 LHK (PR), 2012 WL 3236306, at *1 (N.D. Cal. Aug. 6, 2012) (granting qualified 21 ||}immunity after finding pre-existing law was not clearly established as to when a slippery 22 || floor becomes a sufficiently substantial risk); McLaughlin v. Farries, 122 F. App’x 692 23 Cir. 2004) (per curiam) (concluding that a prisoner’s slip and fall on accumulated 24 || water from a leaky air conditioning unit, which the defendants knew about and failed to 25 |jclean up, was an appropriate action for negligence, but not deliberate indifference). 26 || Although the above-referenced slip and fall cases are also distinguishable from the instant 27 || case, the leaky ceiling posed a similar risk. However, in evaluating Defendants’ claim of 28 || qualified immunity, the undersigned notes that while the leaky ceiling posed a risk of : 19

1 || danger to Plaintiff, pre-existing law was not sufficiently clear to alert Defendants that their 2 || conduct was unconstitutional. Therefore, Defendants are entitled to qualified immunity. 3 Accordingly, the undersigned respectfully recommends Defendants’ motion to 4 ||dismiss Plaintiff's second amended complaint on qualified immunity grounds be 5 ||GRANTED. . 6 C. Leave to Amend 7 Generally, courts freely grant leave to amend a complaint that has been dismissed. 8 || FED. R. Civ. P. 15(a); Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 9 || 1401 (9th Cir. 1986). “Leave [to amend] shall be freely given when justice so requires.” 10 || FED. R. Crv. P. 15(a). It “should be granted ‘if it appears at all possible that the plaintiff 11 correct defect.” Schreiber, 806 F.2d at 1401 (quoting Breier v. N.Cal. Bowling 12 || Proprietors’ Ass’n, 316 F.2d 787, 789-90 (9th Cir. 1963)). Moreover, “[i]n the absence of 13 || any apparent or declared reason—such as undue delay, bad faith or dilatory motive on the 14 of the movant, repeated failure to cure deficiencies by amendments .. . , undue 15 prejudice to the opposing party by virtue of allowance of the amendment, futility of 16 || amendment, etc.—the leave sought should, as the rules require, be ‘freely given.’” Fi ‘oman 17 ||v. Davis, 371 U.S. 178, 182 (1962). However, “the Ninth Circuit has recognized that 18 || plaintiffs do not enjoy unlimited opportunities to amend their complaints.” Stone v. Conrad 19 || Preby’s, 2013 WL 139939, at *2 (S.D. Cal. Jan. 10, 2013) (citing McHenry v. Renne, 84 20 || F.3d 1172, 1174 (9th Cir. 1996)); see also Lopez, 203 F.3d at 1130. 21 Here, Plaintiff has not requested leave to amend the SAC. As to Plaintiff's deliberate 22 ||indifference claim under the Eighth Amendment, allowing Plaintiff to amend the SAC 23 || would be futile. Although Plaintiff alleges sufficient facts to support a cognizable Eighth 24 || Amendment claim for unsafe conditions of confinement, Defendants are shielded from 25 || liability for civil damages under qualified immunity. Supra pp. 7-10. Therefore, any 26 ||additional facts Plaintiff may assert in an amended complaint would be unavailing. 27 || Accordingly, it is respectfully recommended that any further requests for leave to amend 28 Plaintif? s complaint be DENIED. 44

1 VI. CONCLUSION For the reasons discussed, the undersigned respectfully submits this Report and 3 ||Recommendation to District Judge Larry Alan Burns pursuant to 28 U.S.C. § 636(b)(1)(B) 4 ||and Local Civil Rule 72.1(c)(1)(e). For the reasons set forth above, IT IS HEREBY 5 || RECOMMENDED that the Court issue an order approving and adopting this Report and 6 Recommendation, and directing that Judgment be entered GRANTING IN PART and 7 DENYING IN_PART Defendants’ motion to dismiss Plaintiff's second amended 8 ||complaint. The undersigned further recommends that any further requests for leave to 9 ||amend Plaintiff's complaint be DENIED. 10 It is ORDERED that that no later than January 20, 2022, any parties to this action 11 ||may file written objections to this Report and Recommendation with the Court and serve a 12 ||copy on all parties. The document should be captioned “Objections to Report and 13 || Recommendation.” . . 14 It is further ORDERED that any reply to the objections shall be filed with the Court 15 served on all parties no later than February 3, 2022. The parties are advised that 16 || failure to file objections within the specified time may waive the right to raise those 17 || objections on appeal of the Court’s Order. See Turner v. Duncan, 158 F.3d 449, 455 (9th 18 || Cir. 1998); Martinez v. Yist, 951 F.2d 1153, 1156 (9th Cir. 1991). 19 IT IS SO ORDERED. 20 ||DATE: January 5, 2022 21 GUL rnb) 7 ON. RUTH BE EZ MONTENEGRO

UNITED STATES MAGISTRATE JUDGE

23 . 24 || . 25 26 27 28 ||. 14