1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 RONNIE L. MOODY, GARY T. Case No.: 18cv1110-WQH-AGS

DEANS, BILLY R. WILLIAMS,

11 and DONNEL E. JONES, ORDER 12 Plaintiffs, 13 v. 14

CALIFORNIA DEPARTMENT

15 OF CORRECTIONS AND

REHABILITATION, DANIEL

16

PARAMO, RODRIGUEZ, J.

17 MCGEE, J. SALAZAR, D.

RAMOS, ADAMS, J. HERRERA,

18

W. EDROZO, E. CRUZ, J.

19 DURAN, AVILA, I. BRAVO, and

DOES 1-50,

20 Defendants. 21 22 HAYES, Judge: 23 The matters before the Court are the Motion to Substitute Party filed by Plaintiff 24 Donnel E. Jones (ECF No. 72) and the Report and Recommendation issued by the 25 Magistrate Judge (ECF No. 78). 26 I. BACKGROUND 27 On May 31, 2018, Plaintiffs Moody, Deans, Williams, and Jones, incarcerated at 28 Richard J. Donovan Correctional Facility, initiated this action by filing a Complaint against 1 Defendants California Department of Corrections and Rehabilitation, Daniel Paramo, 2 Rodriguez, J. McGee, J. Salazar, D. Ramos, Adams, J. Herrera, W. Edrozo, E. Cruz, J. 3 Duran, Avila, I. Bravo, and Does 1-50. (ECF No. 1). The Complaint alleged that 4 Defendants used unreasonable force against Plaintiffs, interfered with Plaintiffs’ ability to 5 submit grievances and complaints regarding the use of force, and retaliated against 6 Plaintiffs. On September 26, 2019, Plaintiffs filed the operative Amended Complaint. 7 (ECF No. 48). 8 Plaintiff Donnel E. Jones died on December 31, 2020, from causes unrelated to this 9 action. (See ECF No. 72-2 at 2). On July 23, 2021, Plaintiff Jones, by and through his 10 successor-in-interest and son, Donnel Jones Jr., filed a Motion to Substitute Party. (ECF 11 No. 72). On August 16, 2021, Defendants Bravo, Cruz, Duran, Edrozo, McGee, Ramos, 12 and Salazar filed a partial Opposition to the motion, opposing substitution as to Plaintiff’s 13 intentional infliction of emotional distress claim and any claims for pain, suffering, or 14 disfigurement, including Plaintiff’s Eighth and First Amendment claims under 42 U.S.C. 15 § 1983. (See ECF No. 74 at 3-4). On August 18, 2021, Plaintiff filed a Reply 16 acknowledging that substitution was improper as to the intentional infliction of emotional 17 distress claim. (See ECF No. 75 at 2). 18 On December 10, 2021, the Magistrate Judge issued a Report and Recommendation. 19 (ECF No. 78). The Report and Recommendation recommends that the Court: (1) dismiss 20 Plaintiff Jones’ cause of action for intentional infliction of emotional distress; (2) dismiss 21 Plaintiff’s claims for damages for pain, suffering, or disfigurement under his § 1983 causes 22 of action; and (3) otherwise grant the Motion to Substitute Party. 23 On December 24, 2021, Plaintiff Jones filed an Objection to the Report and 24 Recommendation, challenging the recommendation to grant dismissal of the claims for 25 pain, suffering, or disfigurement damages under § 1983. (ECF No. 80). On the same date, 26 Defendants filed an Objection challenging the recommendation to otherwise grant the 27 Motion to Substitute Party and requesting dismissal of Plaintiff’s claims for pain, suffering, 28 or disfigurement damages under Plaintiff’s state-law causes of action. (ECF No. 81). 1 Defendant’s Objection also includes a request for judgment on Plaintiff’s state-law causes 2 of action due to Plaintiff’s failure to allege recoverable damages in the absence of the 3 availability of pain, suffering, or disfigurement damages. On January 4, 2022, Plaintiff 4 filed a Reply. (ECF No. 82). On January 7, 2022, Defendants filed a Reply. (ECF No. 5 83). 6 II. LEGAL STANDARD ON REPORT AND RECOMMENDATION 7 The duties of the district court in connection with a report and recommendation 8 issued by a magistrate judge are set forth in Federal Rule of Civil Procedure 72(b) and 28 9 U.S.C. § 636(b). The district judge must “make a de novo determination of those portions 10 of the report . . . to which objection is made,” and “may accept, reject, or modify, in whole 11 or in part, the findings or recommendations made by the magistrate.” 28 U.S.C. § 636(b). 12 The district court need not review de novo those portions of a report and recommendation 13 to which neither party objects. See Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 14 2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) 15 (“Neither the Constitution nor the [Federal Magistrates Act] requires a district judge to 16 review, de novo, findings and recommendations that the parties themselves accept as 17 correct.”). 18 III. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS 19 No party has filed an objection to the conclusion of the Report and Recommendation 20 that Plaintiff Jones’ cause of action for intentional infliction of emotional distress should 21 be dismissed. The Court has reviewed the related portions of the Report and 22 Recommendation and adopts the Report and Recommendation with respect to Plaintiff’s 23 intentional infliction of emotional distress cause of action (ECF No. 78 at page 4, lines 13- 24 14). For the reasons stated in the Report and Recommendation, Plaintiff Jones’ intentional 25 infliction of emotional distress cause of action is dismissed with prejudice. 26 27 28 1 IV. § 1983 PAIN, SUFFERING, OR DISFIGUREMENT DAMAGES 2 Plaintiff Jones objects to the recommendation that the Court grant dismissal of the 3 claims for pain, suffering, or disfigurement damages under 42 U.S.C. § 1983. Plaintiff 4 contends that the Magistrate Judge misapplied the Supreme Court’s analysis in Robertson 5 v. Wegmann, 436 U.S. 584 (1978), in holding that California state law (which bars survival 6 of claims for pain, suffering, or disfigurement damages when a plaintiff dies) does not 7 conflict with the policies expressed in § 1983. Plaintiff contends that California law should 8 not be applied because it is inconsistent with the deterrence rationale of § 1983. Defendants 9 contend that the Report and Recommendation correctly applied Robertson and that the 10 deterrence is not materially impacted by prohibiting survival of pain, suffering, or 11 disfigurement damages when a plaintiff’s death is unrelated to the action. 12 In survival actions California law does not allow a decedent's estate to recover for 13 the decedent's pre-death pain, suffering, or disfigurement. See Cal. Civ. Proc. Code § 14 377.34 (“In an action or proceeding by a decedent's personal representative or successor in 15 interest on the decedent's cause of action, the damages recoverable are limited to the loss 16 or damage that the decedent sustained or incurred before death, including any penalties or 17 punitive or exemplary damages that the decedent would have been entitled to recover had 18 the decedent lived, and do not include damages for pain, suffering, or disfigurement.”). 19 The Court of Appeals has recognized that “[b]ecause federal law is silent on the measure 20 of damages in § 1983 actions, California's disallowance of pre-death pain and suffering 21 damages governs unless it is inconsistent with the policies of § 1983.” Chaudhry v. City 22 of Los Angeles, 751 F.3d 1096, 1103 (9th Cir. 2014). “The policies underlying § 1983 23 include compensation of persons injured by deprivation of federal rights and prevention of 24 abuses of power by those acting under color of state law.” Robertson, 436 U.S. at 591. 25 26 27 1 The Court reaches the same conclusion as the Report and Recommendation on the issue of pain, suffering, or disfigurement damages under § 1983, but the Court conducts its own analysis and does not 28 1 In Robertson, the Supreme Court held that a Louisiana statute that limited survival 2 actions to a decedent’s close family members did not conflict with the deterrence goal of § 3 1983. California’s limitation on survivorship is different from the one permitted in 4 Robertson in two respects: California’s statute limits the types of damages available rather 5 than barring all recovery, and it imposes these limitations on all survival actions, not just 6 those brought by non-family members. The Court of Appeals has determined that the 7 California survivorship statute does conflict with the goal of deterring abuse when the 8 conduct at issue caused the decedent’s death. See Chaudhry, 751 F.3d at 1104 (reasoning 9 that “a prohibition against pre-death pain and suffering awards for a decedent's estate has 10 the perverse effect of making it more economically advantageous for a defendant to kill 11 rather than injure his victim.”). However, “the distinction between those violations of 12 federal law that cause death and those that do not is crucial.” Id. In the absence of any 13 controlling authority, district courts are split on the issue presented in this case—whether 14 California’s survivorship statute conflicts with the goal of deterring abuse when the 15 plaintiff’s death is unrelated to the alleged § 1983 violation. Compare Venerable v. City 16 of Sacramento, 185 F. Supp. 2d 1128, 1133 (E.D. Cal. 2002) (holding that there is not a 17 conflict) with Williams v. City of Oakland, 915 F. Supp. 1074, 1079 (N.D. Cal. 1996) 18 (holding that there is a conflict). 19 The Court concludes that the behavior of prison officials contemplating illegal 20 activity would not be meaningfully influenced by the possibility that a prisoner’s unrelated 21 and unforeseeable death would bar one form of recovery in a future lawsuit. Cf. Robertson, 22 436 U.S. at 592 (“[G]iven that most Louisiana actions survive the plaintiff's death, the fact 23 that a particular action might abate surely would not adversely affect § 1983's role in 24 preventing official illegality, at least in situations in which there is no claim that the 25 illegality caused the plaintiff's death. A state official contemplating illegal activity must 26 always be prepared to face the prospect of a § 1983 action being filed against him. In light 27 of this prospect, even an official aware of the intricacies of Louisiana survivorship law 28 would hardly be influenced in his behavior by its provisions.”); id. at 592 n.10 (“In order 1 to find even a marginal influence on behavior as a result of Louisiana's survivorship 2 provisions, one would have to make the rather farfetched assumptions that a state official 3 had both the desire and the ability deliberately to select as victims only those persons who 4 would die before conclusion of the § 1983 suit (for reasons entirely unconnected with the 5 official illegality) and who would not be survived by any close relatives.”). The Court 6 concludes that there is no conflict between California’s survivorship statute and the policies 7 underlying § 1983 in this case.2 Plaintiff Jones’ claims for pain, suffering, or disfigurement 8 damages under his § 1983 causes of action are dismissed with prejudice. 9 V. OTHER CLAIMS 10 Defendants object to the recommendation that Plaintiff Jones’ Motion to Substitute 11 Party be otherwise granted. Defendants contend that Plaintiff’s claims for pain, suffering, 12 or disfigurement damages under Plaintiff’s state-law causes of action should be dismissed. 13 Defendants also contend that they are entitled to judgment on Plaintiff’s state-law causes 14 of action due to Plaintiff’s failure to allege recoverable damages in the absence of the 15 availability of pain, suffering, or disfigurement damages. Plaintiff Jones contend that the 16 Court should not consider these arguments because they were not raised before the 17 Magistrate Judge. Plaintiff contends that his state-law causes of action survive absent the 18 availability of pain, suffering, or disfigurement damages. 19 Defendants raised their request that the Court dismiss Plaintiff Jones’ claims for 20 pain, suffering, or disfigurement damages under Plaintiff’s state-law causes of action 21 before the Magistrate Judge. See ECF No. 74 at 3 (“Furthermore, the Court should find 22 that Jones, Jr. is barred from seeking recovery for emotional damages for any of Decedent’s 23 remaining claims . . . . To the extent that any of the alleged injuries were for pain, suffering, 24 or disfigurement, Jones Jr., as Decedent’s survivor, is precluded from recovery. This 25 26 27 2 The other goal of § 1983—compensation of victims—also does not conflict with the California statute. See Robertson, 436 U.S. at 592 (stating that “[t]he goal of compensating those injured by a deprivation of 28 1 preclusion extends to the Eighth and First Amendment claims brought [under] 42 U.S.C. § 2 1983.” (citations omitted)). However, the Report and Recommendation does not explicitly 3 consider the issue of pain, suffering, or disfigurement damages under Plaintiff’s state-law 4 causes of action. The prohibition on the survival of pain, suffering, or disfigurement 5 damages imposed by California state law applies to Plaintiff’s state-law causes of action. 6 See Cal. Civ. Proc. Code § 377.34; see also Craig v. County of Orange, No. SACV 17- 7 00491-CJC(KESx), 2017 WL 11618170, at *4 (C.D. Cal. Sept. 6, 2017) (battery and Bane 8 Act causes of action); Williams v. Kohl’s Dept. Stores, Inc., No. EDCV 19-397 JGB 9 (SHKx), 2019 WL 9077476, at *5 (C.D. Cal. Sept. 13, 2019) (negligence cause of action). 10 Plaintiff Jones’ claims for pain, suffering, or disfigurement damages under his state-law 11 causes of action are dismissed with prejudice. 12 Defendants acknowledge that their request that the Court dismiss Plaintiff’s state- 13 law causes of action entirely was not raised before the Magistrate Judge. See ECF No. 80 14 at 5 (“Although Defendants did not raise this argument in their opposition to Jones’ 15 substitution motion, a district court has discretion to consider or decline new arguments 16 raised for the first time in an objection to a report and recommendation.”). No reason for 17 Defendants’ failure to raise this argument before the Magistrate Judge has been proffered. 18 An opportunity for the parties to thoroughly brief the issue would aid the Court in 19 determining whether dismissal is appropriate. In exercising its discretion, the Court 20 declines to consider Defendants’ request to dismiss Plaintiff’s state-law claims. See Brown 21 v. Roe, 279 F.3d 742, 745 (9th Cir. 2002) (acknowledging that district courts in this circuit 22 have the discretion to decline to consider new arguments raised for the first time in an 23 objection to a report and recommendation). 24 VI. CONCLUSION 25 IT IS HEREBY ORDERED that the Report and Recommendation (ECF No. 78) is 26 adopted in part and not adopted in part. The Report and Recommendation is adopted as to 27 Plaintiff Donnel E. Jones’ claim for intentional infliction of emotional distress, (id. at page 28 4, lines 13-14), and is otherwise not adopted. 1 IT IS FURTHER ORDERED that Plaintiff Donnel E. Jones’ Objection to the Report 2 ||and Recommendation (ECF No. 80) is overruled. 3 IT IS FURTHER ORDERED that Defendants Bravo, Cruz, Duran, Edrozo, McGee, 4 ||Ramos, and Salazar’s Objections to the Report and Recommendation (ECF No. 81) are 5 || overruled in part and sustained in part. Defendants’ Objections are sustained as to their 6 || request that the Court dismiss Plaintiff Jones’ claims for pain, suffering, or disfigurement 7 || damages under Plaintiff's state-law causes of action, and are otherwise overruled. 8 IT IS FURTHER ORDERED that Plaintiff Donnel E. Jones’ Motion to Substitute 9 || Party (ECF No. 72) is granted in part and denied in part. Plaintiff Jones’ intentional 10 |/infliction of emotional distress cause of action is dismissed. Plaintiff Jones’ claims for 11 suffering, or disfigurement damages under all of Plaintiff's causes of action are 12 dismissed. Plaintiff Jones’ Motion to Substitute Party is otherwise granted. 13 || Dated: February 3, 2022 Nitta Ze. A a 14 Hon, William Q. Hayes 15 United States District Court 16 17 18 19 20 21 22 23 24 25 26 27 28