(PC)Harmon v. Rio Cosumnes Correctional Center ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 EDDIE LEE HARMON, No. 2:20-cv-1408 DB P 12 Plaintiff, 13 v. ORDER AND 14 RIO COSUMNES CORRECTIONAL FINDINGS AND RECOMMENDATIONS CENTER, 15 Defendant. 16 17 Plaintiff is a county jail inmate proceeding pro se. Plaintiff seeks relief pursuant to 42 18 U.S.C. § 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 19 1915. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 20 636(b)(1). 21 I. Screening Requirement 22 The court is required to screen complaints brought by prisoners seeking relief against a 23 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 24 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 25 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 26 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 27 //// 28 1 II. Pleading Requirements 2 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 3 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 4 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 5 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 6 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 7 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 8 Cir. 1989); Franklin, 745 F.2d at 1227. 9 A complaint, or portion thereof, should only be dismissed for failure to state a claim upon 10 which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in 11 support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding, 467 12 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt 13 Lake Log Owners Ass’n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under 14 this standard, the court must accept as true the allegations of the complaint in question, Hosp. 15 Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light 16 most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor, Jenkins v. 17 McKeithen, 395 U.S. 411, 421 (1969). 18 III. Plaintiff’s Allegations 19 At all times relevant to this action, plaintiff was a county inmate housed at San Cosumnes 20 Correctional Center (“SCCC”) in Elk Grove, California. He names the SCCC as the sole 21 defendant in this damages action. He seeks $10.5 million. 22 Plaintiff’s allegations may be fairly summarized as follows: 23 Between June 27 and July 1, 2020, plaintiff claims that he is at risk of contracting Covid- 24 19 at the SCCC because he is being deprived of cleaning supplies, despite living in a dorm setting 25 with 80-100 other people. He also claims that social distancing is not occurring, since he and the 26 other inmates are only able to maintain a 2-foot distance from one another. Plaintiff further claims 27 that he is not provided masks, the police do not wear masks, and the individuals who cook and 28 prepare the food do not wear masks. Lastly, he contends that there is no Covid-19 testing done. 1 IV. Discussion 2 A. Eleventh Amendment Immunity 3 The Eleventh Amendment bars any suit against a state or state agency absent a valid 4 waiver or abrogation of its sovereign immunity. Seminole Tribe of Florida v. Florida, 517 U.S. 5 44, 54 (1996); Hans v. Louisiana, 134 U.S. 1, 10 (1890). This immunity applies regardless of 6 whether a state or state agency is sued for damages or injunctive relief, Alabama v. Pugh, 438 7 U.S. 731, 732 (1978), and regardless of whether the plaintiff's claim arises under federal or state 8 law, Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 121 (1984). 9 While Congress may validly abrogate a state's sovereign immunity by statute, the Supreme 10 Court has repeatedly emphasized that “§ 1983 was not intended to abrogate a State's Eleventh 11 Amendment immunity.” Kentucky v. Graham, 473 U.S. 159, 169 n.17 (1985); accord Quern v. 12 Jordan, 440 U.S. 332, 342 (1979). 13 Both the Ninth Circuit and the Supreme Court have recognized that the “State of California 14 has not waived its Eleventh Amendment immunity with respect to claims brought under § 1983 in 15 federal court.” Dittman v. California, 191 F.3d 1020, 1025-26 (9th Cir. 1999); see also 16 Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985), superseded on other grounds by 17 statute, Rehabilitation Act Amendments of 1986, 42 U.S.C. § 2000d–7 (observing that the 18 California Constitution does not waive the state's Eleventh Amendment immunity). 19 In the context of prisoner lawsuits against CDCR, the Ninth Circuit has expressly and 20 repeatedly held that CDCR and prisons within CDCR are immune from suit under the Eleventh 21 Amendment. See, e.g., Brown v. Cal. Dep't of Corrs., 554 F.3d 747, 752 (9th Cir. 2009) (“The 22 district court correctly held that the California Department of Corrections and the California 23 Board of Prison Terms were entitled to Eleventh Amendment immunity.”); Fulcher v. Cal. Dep't 24 of Corrs., 297 Fed. App’x 645, 646 (9th Cir. 2008) ( “[T]he California Department of Corrections 25 ... is a state agency that is immune from liability under the Eleventh Amendment.”); cf. Holley v. 26 Cal. Dep't of Corrs., 599 F.3d 1108, 1111-12 (9th Cir.2010) (affirming dismissal of complaint 27 against CDCR because California had not constructively waived its sovereign immunity by 28 accepting federal funds). 1 Plaintiff here brings this suit against the SCCC for $10.5 million in damages. As a prison 2 within CDCR, however, the SCCC is immune from damages. Accordingly, plaintiff fails to state 3 a claim against this defendant. In the absence of any other defendant, plaintiff’s complaint is 4 subject to dismissal. 5 B. Exhaustion of Administrative Remedies 6 In addition, plaintiff indicates on his form complaint that he did not exhaust his 7 administrative remedies prior to filing suit. Pursuant to the Prison Litigation Reform Act of 1996, 8 “[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any 9 other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until 10 such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Prisoners are 11 required to exhaust the available administrative remedies prior to filing suit. Jones v. Bock, 549 12 U.S. 199, 211 (2007); McKinney v. Carey, 311 F.3d 1198, 1199–1201 (9th Cir. 2002). 13 Exhaustion is required regardless of the relief sought by the prisoner and regardless of the relief 14 offered by the process, Booth v. Churner, 532 U.S. 731, 741 (2001), and the exhaustion 15 requirement applies to all suits relating to prison life, Porter v. Nussle, 435 U.S. 516, 532 (2002). 16 In rare cases where a failure to exhaust is clear from the face of the complaint, it may be 17 dismissed for failure to state a claim. See, e.g., Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir. 18 2014); Medina v. Sacramento Cty. Sheriff’s Dep’t, No. 2:16-cv-0765 AC P, 2016 WL 6038181, 19 at *3 (E.D. Cal. Oct. 14, 2016) (“When it is clear from the face of the complaint and any attached 20 exhibits that a plaintiff did not exhaust his available administrative remedies before commencing 21 an action, the action may be dismissed on screening for failure to state a claim.”); Lucas v. Dir. of 22 Dep’t. of Corrs., 2015 WL 1014037, at *4 (E.D. Cal. Mar. 6, 2015) (relying on Albino and 23 dismissing complaint without prejudice on screening due to plaintiff’s failure to exhaust 24 administrative remedies prior to filing suit). 25 As noted, plaintiff responded “No” to the form complaint question that asked whether he 26 had filed a grievance or appeal of all of the facts in his complaint. The complaint is signed under 27 penalty of perjury. Based on plaintiff’s own statements, there is no indication that plaintiff 28 pursued his grievance or appeal at any administrative level. Thus, it appears clearly on the face of 1 | the complaint that plaintiff filed suit prematurely without first exhausting his ad ministrative 2 || remedies in compliance with section 1997e(a). 31 V. Conclusion 4 Based on the foregoing, it is HEREBY ORDERED that: 5 1. Plaintiff’s request for leave to proceed in forma pauperis (Doc. 2) is DENIED; 6 2. The Clerk of Court is directed to assign a district judge to this case; and 7 ITIS HEREBY RECOMMENDED that this action be dismissed for plaintiff’s failure to 8 || exhaust administrative remedies prior to filing suit. 9 These Findings and Recommendations will be submitted to the United States District 10 || Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within 11 | fourteen days after being served with these Findings and Recommendations, the parties may file 12 | written objections with the Court. The document should be captioned “Objections to Magistrate 13 || Judge’s Findings and Recommendations.” The parties are advised that failure to file objections 14 || within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 15 | F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 16 || Dated: November 12, 2020 17 18 19 . ORAH BARNES /DLB7; UNITED STATES MAGISTRATE JUDGE 20 DB/Inbox/Substantive/harm! 408 scrn 21 22 23 24 25 26 27 28