(PC) Lawrence v. Newsom ( 2024 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RISHARDO LAWRENCE, No. 2:22-CV-1975-WBS-DMC-P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 GAVIN NEWSOM, 15 Defendant. 16 17 Plaintiff, a prisoner proceeding with retained counsel, brings this civil rights action 18 pursuant to 42 U.S.C. § 1983. Pending before the Court is Defendant's unopposed motion to 19 dismiss Plaintiff's first amended complaint. See ECF No. 39. 20 In considering a motion to dismiss, the Court must accept all allegations of 21 material fact in the complaint as true. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). The 22 Court must also construe the alleged facts in the light most favorable to the plaintiff. See Scheuer 23 v. Rhodes, 416 U.S. 232, 236 (1974); see also Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 24 738, 740 (1976); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). All 25 ambiguities or doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen, 26 395 U.S. 411, 421 (1969). However, legally conclusory statements, not supported by actual 27 factual allegations, need not be accepted. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009). 28 In addition, pro se pleadings are held to a less stringent standard than those drafted by lawyers. 1 See Haines v. Kerner, 404 U.S. 519, 520 (1972). 2 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement 3 of the claim showing that the pleader is entitled to relief” in order to “give the defendant fair 4 notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp v. Twombly, 5 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order 6 to survive dismissal for failure to state a claim under Rule 12(b)(6), a complaint must contain 7 more than “a formulaic recitation of the elements of a cause of action;” it must contain factual 8 allegations sufficient “to raise a right to relief above the speculative level.” Id. at 555-56. The 9 complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Id. at 10 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the 11 court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 12 Iqbal, 129 S. Ct. at 1949. “The plausibility standard is not akin to a ‘probability requirement,’ but 13 it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting 14 Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are ‘merely consistent with’ a 15 defendant’s liability, it ‘stops short of the line between possibility and plausibility for entitlement 16 to relief.” Id. (quoting Twombly, 550 U.S. at 557). 17 In deciding a Rule 12(b)(6) motion, the Court generally may not consider materials 18 outside the complaint and pleadings. See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998); 19 Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). The Court may, however, consider: (1) 20 documents whose contents are alleged in or attached to the complaint and whose authenticity no 21 party questions, see Branch, 14 F.3d at 454; (2) documents whose authenticity is not in question, 22 and upon which the complaint necessarily relies, but which are not attached to the complaint, see 23 Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); and (3) documents and materials 24 of which the court may take judicial notice, see Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 25 1994). 26 Finally, leave to amend must be granted “[u]nless it is absolutely clear that no 27 amendment can cure the defects.” Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per 28 curiam); see also Lopez v. Smith, 203 F.3d 1122, 1126 (9th Cir. 2000) (en banc). 1 I. BACKGROUND 2 A. Procedural History 3 Plaintiff initiated this action with a complaint filed through retained counsel in the 4 United States District Court for the Northern District of California on September 6, 2022. See 5 ECF No. 1. Plaintiff named the following as defendants: (1) Gavin Newsom; and (2) Jennifer 6 Benavidez. See id. at 1. The matter was transferred to this Court on November 1, 2022. See 7 ECF No. 11. On December 22, 2022, the Court determined the complaint was appropriate for 8 service and directed Plaintiff to serve process. See ECF No. 13. 9 Defendants filed a motion to dismiss on March 1, 2023. See ECF No. 20. 10 Plaintiff did not oppose. On July 24, 2023, the Court issued findings and recommendations that 11 Defendants' motion to dismiss be granted, that Defendant Benavidez be dismissed with prejudice, 12 that Plaintiff's equal protection claim be dismissed with prejudice, that Plaintiff's state law claims 13 be dismissed with leave to amend, that Plaintiff's due process claim against Defendant Newsom 14 be dismissed with leave to amend, and that Plaintiff be directed to file a first amended complaint. 15 See ECF No. 23. The District Judge adopted the findings and recommendations in full on March 16 21, 2024. See ECF No. 31. Plaintiff filed his first amended complaint through retained counsel 17 on June 13, 2024. See ECF No. 35. 18 On July 18, 2024, Defendant Newsom filed the pending motion to dismiss the first 19 amended complaint. See ECF No. 39. As with the prior motion to dismiss, Plaintiff has not filed 20 an opposition 21 B. Plaintiff's Allegations 22 The caption of Plaintiff's first amended complaint lists Gavin Newsom as the sole 23 named defendant. See ECF No. 35, pg. 1. Throughout the amended complaint, however, 24 Plaintiff refers to "Defendants" and includes a specific allegation as to Benavidez, who is alleged 25 to be the prison warden and who is alleged to have violated Plaintiff's rights by not responding to 26 Plaintiff's request for a medical parole. See generally ECF No. 35. Plaintiff states that he is a 27 state prisoner confined to a wheelchair and that he is suffering pulmonary embolism, deep vein 28 thrombosis, and cardiopulmonary disorder, all of which necessitated the amputation of his leg. 1 See id. at 1. According to Plaintiff: 2 On 5/24/2022 CMF [California Medical Facility] Warden Jennifer Benavidez was notified that Plaintiff was requesting a medical review for 3 a Medical Parole Hearing. The Defendant has not responded to Plaintiff's request, denying him his fundamental right to due process and equal 4 protection under the Fourteenth Amendment of the United States Constitution. . . . 5 Id. at 2. 6 7 Plaintiff asserts two separate causes of action, both arising under state law, for 8 negligent infliction of emotional distress and intentional infliction of emotional distress. See id. 9 at 2-3. Plaintiff seeks damages and an order directing that a medical parole hearing be set. See 10 id. at 4. 11 12 II. DISCUSSION 13 In his unopposed motion to dismiss, Defendant Newsom renews the arguments 14 raised in the prior motion as follows: (1) to the extent Plaintiff is suing him in his official capacity 15 for damages under § 1983, he is immune under the Eleventh Amendment; (2) to the extent 16 Plaintiff is suing Defendant in his official capacity for injunctive relief under § 1983, the first 17 amended complaint continues to fail to allege sufficient facts to establish an entitlement to such 18 relief; (3) to the extent Plaintiff is suing Defendant in his individual capacity for damages or 19 injunctive relief under § 1983, Plaintiff's allegations continue to be insufficient to establish 20 Defendant's liability as a supervisor; and (4) Plaintiff fails to allege facts sufficient to sustain his 21 state law claims for infliction of emotional distress. See ECF No. 39. Defendant also contends 22 that, pursuant to the District Judge's order granting the first motion to dismiss, Plaintiff cannot 23 now attempt to revive his equal protection claim or his claims against Benavidez. See id. 24 Defendant asks that the first amended complaint be dismissed without further leave to amend. 25 See id. 26 / / / 27 / / / 28 / / / 1 At the outset, the Court agrees with Defendant that the first amended complaint 2 cannot revive claims and defendants which have already been dismissed with prejudice. 3 Plaintiff's equal protection claim has been dismissed with prejudice and is no longer before the 4 Court. Likewise, Benavidez has been dismissed with prejudice and is no longer a party to this 5 action. 6 As to capacity, the Court notes that the first amended complaint remains unclear. 7 Specifically, despite the issue having been addressed in the Court's prior findings and 8 recommendations, Plaintiff continues to fail to specify in which capacity Defendant Newsom is 9 sued. Therefore, the Court will address Plaintiff's allegations as if Defendant is being sued in 10 both his official and individual capacities. 11 A. Section 1983 Claim 12 1. Official Capacity 13 The Court agrees with Defendant that, to the extent Plaintiff is suing him in his 14 official capacity for damages, he is immune from suit under the Eleventh Amendment. See 15 Eaglesmith v. Ward, 73 F.3d 857, 859 (9th Cir. 1995); Pena v. Gardner, 976 F.2d 469, 472 (9th 16 Cir. 1992) (per curiam). Plaintiff may, however, proceed against Defendant Newsom in his 17 official capacity on his claim for injunctive relief. See Armstrong v. Wilson, 124 F.3d 1019, 18 1025 (9th Cir. 1997). As to Plaintiff's § 1983 claim for injunctive relief based on an alleged due 19 process violation, Defendant argues that Plaintiff's claim is foreclosed because he has no role in 20 medical parole and cannot provide the requested injunctive relief. See ECF No. 39, pgs. 6-8. 21 By way of background, Defendant first outlines the provisions of Title 15 of the 22 California Code of Regulations governing medical parole. See ECF No. 39, pgs. 6-7. According 23 to the regulation, the decision to grant or deny a hearing for medical parole lies with the prison's 24 Chief Medical Officer and Classification and Parole Representative. See Cal. Code Regs. tit. 15, 25 § 3359.2(c); see also Cal. Code Regs. tit. 15, § 3359.2(b). The regulations also establish that the 26 decision to grant or deny medical parole lies with the Board of Parole Hearings. See Cal. Code 27 Regs. tit. 15, § 3359.1(d); Cal. Pen. Code§ 3350(g). 28 / / / 1 Against this background, Defendant's argument is persuasive because, while there 2 is an exception to Eleventh Amendment immunity for prospective injunctive relief, that exception 3 “only applies to state officials with the ability to provide injunctive relief in their official 4 capacities.” Roberts v. California Dep’t of Corrections, 2007 WL 951289 *2 (N.D. Cal., March 5 27, 2007) (citing Kentucky v. Graham, 472 U.S. 159, 167 n.14 (2002)). Here, state regulations 6 establish that Defendant Newsom does not have the ability to order that Plaintiff be provided a 7 medical parole hearing. Further amendment to the pleadings will not change this fact. 8 2. Individual Capacity 9 The Eleventh Amendment does not bar suits for damages and/or injunctive relief 10 against Defendant Newsom in his individual capacity. See Eaglesmith, 73 F.3d at 859; Pena, 976 11 F.2d at 472. To the extent Plaintiff is suing Defendant in his individual capacity, Defendant 12 argues that the first amended complaint fails to assert allegations sufficient to establish 13 Defendant's supervisory liability. See ECF No 39, pg. 10. The Court agrees. 14 Supervisory officials, such as Defendant Newsom, who is the Governor of 15 California, are generally not liable under § 1983 for the actions of subordinates. See Taylor v. 16 List, 880 F.2d 1040, 1045 (9th Cir. 1989) (holding that there is no respondeat superior liability 17 under § 1983). A supervisor is only liable for the constitutional violations of subordinates if the 18 supervisor participated in or directed the violations. See id. Supervisory personnel who 19 implement a policy so deficient that the policy itself is a repudiation of constitutional rights and 20 the moving force behind a constitutional violation may be liable even where such personnel do 21 not overtly participate in the offensive act. See Redman v. Cnty of San Diego, 942 F.2d 1435, 22 1446 (9th Cir. 1991) (en banc). A supervisory defendant may also be liable where he or she knew 23 of constitutional violations but failed to act to prevent them. See Taylor, 880 F.2d at 1045; see 24 also Starr v. Baca, 633 F.3d 1191, 1209 (9th Cir. 2011). 25 When a defendant holds a supervisory position, the causal link between such 26 defendant and the claimed constitutional violation must be specifically alleged. See Fayle v. 27 Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 28 1978). Vague and conclusory allegations concerning the involvement of supervisory personnel in 1 civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th 2 Cir. 1982). “[A] plaintiff must plead that each Government-official defendant, through the 3 official’s own individual actions, has violated the constitution.” See Ashcroft v. Iqbal, 556 U.S. 4 662, 676 (2009). 5 Defendant argues: 6 Here, the FAC fails to allege any facts establishing Defendant Newsom was in any way aware of Plaintiff’s medical parole request or 7 Warden Benavidez’s alleged inaction on that request. Accordingly, to the extent Plaintiff bases Defendant Newsom’s 8 liability on any possible supervisory role he has in relation to Defendant Benavidez, the facts as alleged are insufficient to state a claim against 9 Defendant Newsom. 10 ECF No. 39, pg. 10. 11 Defendant's argument is persuasive. Except for the caption, the first amended 12 complaint makes no reference whatsoever to Defendant Newsom. Benavidez, who is no longer a 13 party to this action, is the only individual named in the body of the first amended complaint. 14 Plaintiff's allegation that "Defendants are responsible for implementing the Medical Parole 15 statute. . .," ECF No. 25, pg. 2, suggests a non-cognizable respondeat superior theory of liability 16 and fails to provide any specificity as to Defendant Newsom's conduct. Given that Plaintiff has 17 previously been advised of the pleading standard applicable to supervisory officials and continues 18 to provide sufficient allegations to establish Defendant Newsom's supervisory liability, further 19 leave to amend is not warranted. 20 B. State Law Claims 21 The first amended complaint renews Plaintiff's state law claims for negligent 22 infliction of emotional distress and intentional infliction of emotional distress, both of which were 23 dismissed with leave to amend. Defendant Newsom argues in the pending motion to dismiss the 24 first amended complaint that Plaintiff's state law claims continue to be deficient. ECF No. 39, 25 pgs. 8-9. As discussed below, the Court agrees. 26 / / / 27 / / / 28 / / / 1 1. Negligent Infliction of Emotional Distress 2 The Court previously addressed Plaintiff's claim of negligent infliction of 3 emotional distress. In the July 24, 2023, findings and recommendations, which were adopted in 4 full by the District Judge, the Court stated: 5 Negligent infliction of emotional distress is not an independent cause of action under California law and, instead, falls within 6 the tort of negligence. See Burgess v. Superior Court, 2 Cal. 4th 1064, 1072 (1992). The traditional negligence elements of duty, breach, 7 causation, and damage apply to a claim of negligent infliction of emotional distress. See id. 8 * * * 9 As Defendants correctly note, Plaintiff’s complaint is 10 devoid of any specific allegations regarding the emotional distress he suffered. Plaintiff thus fails to allege damages. Further, Plaintiff has not 11 explained the nature of the duty allegedly owed by Defendants or how Defendants’ alleged conduct caused him emotional distress. Plaintiff 12 should be provided leave to amend. 13 ECF No. 23, pg. 9. 14 Defendant argues: 15 Here, Plaintiff’s FAC fails to allege any facts supporting the elements of a negligence claim. Plaintiff does hardly more than recite the 16 elements of the claim with conclusory statements. The FAC alleges that a duty exists between Defendant Newsom and the Plaintiff but fails to 17 explain the nature of that duty. And if we assume that the alleged inaction on Plaintiff’s requests for medical parole was the supposed breach of a 18 duty, Plaintiff’s FAC still fails to explain how this caused Plaintiff’s emotional distress. As the Court previously found in the initial Complaint, 19 Plaintiff has not explained the nature of the duty owed by Defendant Newsom or how his alleged conduct caused Plaintiff emotional distress. 20 (ECF no. 23 at 9.) 21 ECF No. 39, pg. 9. 22 Defendant's argument is persuasive. As with the original complaint, the first 23 amended complaint continues to fail to describe the duty owed to Plaintiff beyond the conclusory 24 statement that "Defendants. . . owed a duty to Plaintiff to treat him in a non-negligent and fair 25 manner. . .," ECF No. 35, pg. 3. Further, Plaintiff continues to fail to explain how the denial of 26 medical parole caused him emotional distress. The first amended complaint thus fails to establish 27 any of the necessary elements of a negligent infliction of emotional distress claim. Because 28 Plaintiff has been previously advised of the standards for this claim and continues to fail to plead 1 sufficient facts, further leave to amend is not warranted. 2 2. Intentional Infliction of Emotional Distress 3 This claim was also addressed previously in the July 24, 2023, findings and 4 recommendations, as follows: 5 A claim for intentional infliction of emotional distress requires: (1) extreme and outrageous conduct by the defendant with the 6 intent of causing emotional distress or reckless disregard of the possibility of causing emotional distress; (2) the plaintiff must have suffered extreme 7 emotional distress; and (3) the defendant’s conduct must be the actual and proximate cause of the plaintiff’s extreme emotional distress. See Hughes 8 v. Pair, 46 Cal. 4th 1035, 1051 (2009). 9 * * * 10 As with Plaintiff’s claim of negligent infliction of emotional distress, the Court agrees that Plaintiff’s claim for intentional 11 infliction of emotional distress is also deficient because Plaintiff has not asserted facts as to the emotional distress he allegedly suffered. Nor has 12 Plaintiff alleged that Defendants acted intentionally or recklessly for the purpose of causing Plaintiff to suffer emotional distress. This claim should 13 be dismissed with leave to amend. 14 ECF No. 23, pg. 10. 15 According to Defendant: 16 Here, again, the FAC merely recites the elements of the claim through conclusory statements containing no alleged facts to support them. 17 Nothing is alleged to establish that the alleged inaction by Defendant Newsom was extreme or outrageous. Nor does Plaintiff allege facts to 18 show that Defendant Newsom acted with the intention of causing, or with reckless disregard of the probability of causing, severe or extreme 19 emotional distress. And there are no alleged facts to establish how Defendant Newsom’s alleged inaction caused severe or extreme emotional 20 distress. Finally, the FAC offers no facts to show Plaintiff is experiencing emotional distress which is severe or extreme. 21 ECF No. 39, pg. 9. 22 23 The Court agrees. The first amended complaint merely sets forth the formulaic 24 elements of an intentional infliction of emotional distress claim. Plaintiff alleges that Defendant's 25 conduct was "outrageous," ECF No. 35, pg. 3, and that he suffered "severe emotional distress," id. 26 Plaintiff does not, however, describe with any particularity what Defendant's conduct is alleged to 27 be. Additionally, as with his claim of negligent infliction of emotional distress discussed above, 28 Plaintiff fails to describe how the denial of Medical Parole caused him emotional distress. Again, 1 | because Plaintiff has been previously advised of the standards for this claim and continues to fail 2 || to plead sufficient facts, further leave to amend 1s not warranted. 3 4 Il. CONCLUSION 5 Based on the foregoing, the undersigned recommends that Defendant's unopposed 6 | motion to dismiss, ECF No. 39, be GRANTED and that this action be DISMISSED with 7 || prejudice. 8 These findings and recommendations are submitted to the United States District 9 || Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days 10 || after being served with these findings and recommendations, any party may file written objections 11 || with the Court. Responses to objections shall be filed within 14 days after service of objections. 12 | Failure to file objections within the specified time may waive the right to appeal. See Martinez v. 13 Yist, 951 F.2d 1153 (9th Cir. 1991). 14 15 | Dated: September 10, 2024 Ss..c0_, 16 DENNIS M. COTA 17 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 10