Robertson v. Doe ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 REGINALD ROBERTSON, 11 Case No. 20-02523 BLF (PR) Plaintiff, 12 ORDER OF SERVICE; DENYING v. MOTION FOR RECONSIDERATION; 13 DIRECTING DEFENDANTS TO FILE DISPOSITIVE MOTION OR 14 J. KAISER-NEVEL, et al., NOTICE REGARDING SUCH MOTION; INSTRUCTIONS TO 15 Defendants. CLERK 16 (Docket No. 34) 17 18 Plaintiff, a pretrial detainee, filed the instant pro se civil rights action pursuant to 42 19 U.S.C. § 1983 against staff at the Santa Rita Jail in Dublin, California. Dkt. No. 1. The 20 Court dismissed Plaintiff’s second amended complaint with leave to amend to correct 21 various deficiencies, and also later granted leave to include supplemental state law claims. 22 Dkt. Nos. 24, 26. Plaintiff filed a third amended complaint which is the operative 23 complaint in this action. Dkt. No. 27. Plaintiff also filed a motion for reconsideration of 24 the Court’s denial of his request for permission for electronic case filing. Dkt. No. 34. 25 26 DISCUSSION 27 A. Standard of Review 1 prisoner seeks redress from a governmental entity or officer or employee of a 2 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 3 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 4 upon which relief may be granted or seek monetary relief from a defendant who is immune 5 from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally 6 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 7 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 8 elements: (1) that a right secured by the Constitution or laws of the United States was 9 violated, and (2) that the alleged violation was committed by a person acting under the 10 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 11 B. Plaintiff’s Claims 12 Plaintiff names the following as defendants: D. Bussell (Technician); Deputies J. 13 Alvarez, M. Ella, G. Harris, and C. Wong; and Alameda County. Dkt. No. 27 at 7. The 14 underlying incident for this cause of action occurred at the Santa Rita Jail. Id. 15 Plaintiff claims that on January 22, 2020, he was involved in a verbal dispute with 16 Defendant Bussell which ended with each threatening the other with a “write-up.” Dkt. 17 No. 27 at 15. Plaintiff claims the injuries he suffered the next day were a direct result of 18 this conflict with Defendant Bussell. Id. 19 On January 23, 2020, at approximately “1745 hours” (5:45 p.m.), Defendant Bussell 20 announced over the Jail’s intercom that Plaintiff had a non-contact visit. Dkt. No. 27 at 7. 21 Defendant Bussell was in the “H.U. Control/Technician booth” at the time. Id. at 10. 22 Plaintiff was placed in booth #8 by Defendant Harris, who then left the visiting area. Id. at 23 4. Plaintiff claims Defendant Bussell had primary control of the visiting area as he was the 24 only technician present at the time. Id. at 10-11. Along with Plaintiff, there were two 25 other inmates, each in booths # 9 and 10, meeting with a representative of Bay Area 26 Community Services. Id. at 4. Upon the completion of their visits, the inmates all pressed 1 control/technician booth, that their visits were finished. Id. at 11. The door to booth #10 2 “buzzed” and the inmate therein was able to exit and leave the visiting area. Id. However, 3 Plaintiff’s booth, # 8, and the adjacent booth #9 did not “buzz” nor would the doors open. 4 Id. For several hours, Plaintiff and the other inmate made numerous attempts to alert jail 5 staff by repeatedly pressing the “call” button, hitting the doors, and yelling loudly, but no 6 one responded. Id. at 12. Plaintiff claims Defendant Bussell “maintained exclusive 7 control over the adverse conditions of the subject-incident and consciously chose not to 8 abate the risk of harm to Plaintiff,” in violation of due process under the Fourteenth 9 Amendment. Id. at 16. At approximately 10 p.m., Defendant Alvarez arrived and let the 10 inmates out of the booths and moved them to individual isolation cells, allowing them to 11 use the restrooms and receive water. Id. at 14. Forty-five minutes later, Plaintiff received 12 his psychotropic and pain medications, and then allowed to return to his assigned cell. Id. 13 During the time he was trapped in the booth, Plaintiff claims he was confined in a 14 space the size of a telephone booth, without food, water, or restroom access. Id. at 12. 15 Plaintiff claims he was also denied the opportunity to receive his psychotropic medications 16 for pre-existing mental health impairments, and his pre-existing arthritis in his right 17 shoulder and low-back were exacerbated without access to his prescribed medications. Id. 18 at 12-13. Plaintiff also claims he was deprived of his recreational time in violation of state 19 regulations. Id. at 13. 20 Plaintiff claims Defendants Alvarez, Harris, and Wong had a “statutorily mandated 21 duty to perform ‘safety checks’ of all inmates housed at that location’” pursuant to state 22 regulations, and that they failed to perform these safety checks during the time he was 23 confined in the booth. Id. at 13-14. Plaintiff claims the County of Alameda violated state 24 regulations in failing to “discharge its duty” prevent injuries sustained by Plaintiff during 25 the incident. Id. at 14. Plaintiff seeks injunctive relief and damages. Id. at 17-20. 26 Within the prison context, a viable claim of First Amendment retaliation entails five 1 inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled 2 the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably 3 advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th 4 Cir. 2005) (footnote omitted). Plaintiff claims that Defendant Bussell kept him trapped in 5 the visiting booth for several hours in order to retaliate against him for threatening to file 6 an inmate grievance against him during an argument the day before. Dkt. No. 27 at 15. 7 Plaintiff also claims his actions chilled the exercise of his First Amendment rights and did 8 not reasonably advance a legitimate correctional goal. Id. These allegations are sufficient 9 to state a retaliation claim against Defendant Bussell. 10 Plaintiff also claims that his confinement in the visiting booth amounted to 11 punishment in violation of the Fourteenth Amendment. Dkt. No.21 at 9. Inmates who sue 12 prison officials for damages for injuries suffered while in custody may do so under the 13 Eighth Amendment’s Cruel and Unusual Punishment Clause or, if not yet convicted, under 14 the Fourteenth Amendment’s Due Process Clause. See Bell v. Wolfish, 441 U.S. 520, 535 15 (1979); Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1067-68 (9th Cir. 2016) (en banc). 16 But under both clauses, the inmate must show that the prison official acted with deliberate 17 indifference. Id. at 1068. Plaintiff’s allegations that Defendant Bussell deliberately kept 18 him trapped in the visiting booth for several hours, liberally construed, states a Fourteenth 19 Amendment claim based on Defendant Bussell’s deliberate indifference to the risk of harm 20 to Plaintiff. 21 Plaintiff also claims Defendant Bussell violated state regulations and acted 22 negligently. Dkt. No. 27 at 16. Plaintiff claims that Defendants Alvarez, Ella, Harris, and 23 Wong had a “statutory-mandated duty” to perform “‘safety checks’” and failed to perform 24 them while he was trapped in the visiting booth. Dkt. No. 27 at 13-14, 16-17. Plaintiff 25 also claims Alameda County is liable for the “failure to discharge its duty under statute.” 26 Id. at 14, 17. Court will exercise supplemental jurisdiction over these state law claims. 1 C. Motion for Reconsideration 2 Plaintiff filed a motion for permission for electronic case filing (“ECF”), Dkt. No. 3 28, which the Court denied because Plaintiff wanted to permit a third party, who was not 4 his legal representative, to access the docket and have e-filing privileges on his behalf. 5 Dkt. No. 32. The Court found this was not appropriate where there was no indication that 6 this third-party was an attorney, and Plaintiff was otherwise representing himself in this 7 matter. Id. at 2. Because Plaintiff could not demonstrate that he would be able to e-file 8 without the aid of this third party, the Court denied permission for e-filing status. Id. 9 Plaintiff has filed a motion for reconsideration of that denial under Civil L.R. 7- 10 9(b)(3) and 7-9(b)(1). Dkt. No. 34 at 5. Plaintiff asserts that General Order No. 72-6 11 suspended the requirement for pro se parties to request permission for ECF under Civil 12 L.R. 5-1(b) “until further notice.” Dkt. No. 34 at 3. Plaintiff also asserts that Local Rule 13 5-1(c)(4) allows any “person” to e-file on behalf of another, and that person need not be an 14 attorney. Id. at 4. Lastly, Plaintiff asserts that he has previously been granted permission 15 for ECF, and that granting him permission in this matter would be consistent with the prior 16 ruling of the Court. Id. at 5. 17 Plaintiff’s arguments are without merit. First of all, if Plaintiff was indeed relying 18 on General Order No. 72-6, he need not have sought permission from this Court at all. But 19 it appears he did so to obtain permission for a third-party “representative” to access the 20 docket and file papers on his behalf. Dkt. No. 28. As discussed previously, the Court 21 correctly found it was not appropriate for a non-attorney third party to act on Plaintiff’s 22 behalf where he was representing himself in the matter. Dkt. No. 32 at 2. Furthermore, 23 General Order No. 72-6 was abrogated on June 23, 2021,1 and is therefore no longer a 24 basis for reconsideration. With regards to Local Rule 5-1(c)(4), that section only applies if 25 a party already has e-filing status: Plaintiff does not. Lastly, when Plaintiff was granted 26 1 ECF status in the previous action, the district judge in that matter explicitly found that 2 Plaintiff met the technical requirements for e-filing. Dkt. No. 34-2 at 7. Here, the Court 3 found that Plaintiff failed to demonstrate that he would be able to e-file without the aid of 4 the third-party. Dkt. No. 32 at 2. In fact, the only email he provided was that of the third- 5 party. Dkt. No. 28 at 1. 6 Based on the foregoing, the Court finds no basis for granting reconsideration of the 7 court order denying Plaintiff permission for electronic case filing. Plaintiff has failed to 8 demonstrate that there is a material difference in fact or law from that which was presented 9 to the Court of which he was unaware in the exercise of reasonable diligence, or a manifest 10 failure by the Court to consider material facts or dispositive legal arguments which were 11 presented to the Court before it issued the order. See Civil L.R. 7-9(b)(1), (3). 12 Accordingly, the motion for reconsideration is DENIED. Dkt. No. 32. 13 14 CONCLUSION 15 For the reasons state above, the Court orders as follows: 16 1. The Clerk of the Court shall mail a Notice of Lawsuit and Request for 17 Waiver of Service of Summons, two copies of the Waiver of Service of Summons, a copy 18 of the third amended complaint, Dkt. No. 27, all attachments thereto, and a copy of this 19 order upon Defendants D. Bussell (Technician), Deputy J. Alvarez, Deputy M. Ella, 20 Deputy G. Harris, and Deputy C. Wong at the Santa Rita County Jail (5325 Broder 21 Blvd., Dublin, CA 94568). The Clerk shall also mail the same to County Counsel for 22 Defendant Alameda County (1221 Oak Street, Suite 450, Oakland, CA 94612). The 23 Clerk shall also mail a copy of this Order to Plaintiff. 24 2. Defendants are cautioned that Rule 4 of the Federal Rules of Civil 25 Procedure requires them to cooperate in saving unnecessary costs of service of the 26 summons and the complaint. Pursuant to Rule 4, if Defendants, after being notified of this 1 to do so, they will be required to bear the cost of such service unless good cause shown for 2 their failure to sign and return the waiver form. If service is waived, this action will 3 proceed as if Defendants had been served on the date that the waiver is filed, except that 4 pursuant to Rule 12(a)(1)(B), Defendants will not be required to serve and file an answer 5 before sixty (60) days from the day on which the request for waiver was sent. (This 6 allows a longer time to respond than would be required if formal service of summons is 7 necessary.) Defendants are asked to read the statement set forth at the foot of the waiver 8 form that more completely describes the duties of the parties with regard to waiver of 9 service of the summons. If service is waived after the date provided in the Notice but 10 before Defendants have been personally served, the Answer shall be due sixty (60) days 11 from the date on which the request for waiver was sent or twenty (20) days from the date 12 the waiver form is filed, whichever is later. 13 3. No later than ninety-one (91) days from the date this order is filed, 14 Defendants shall file a motion for summary judgment or other dispositive motion with 15 respect to the claims in the complaint found to be cognizable above. 16 a. Any motion for summary judgment shall be supported by adequate 17 factual documentation and shall conform in all respects to Rule 56 of the Federal Rules of 18 Civil Procedure. Defendants are advised that summary judgment cannot be granted, nor 19 qualified immunity found, if material facts are in dispute. If any Defendant is of the 20 opinion that this case cannot be resolved by summary judgment, he shall so inform the 21 Court prior to the date the summary judgment motion is due. 22 b. In the event Defendants file a motion for summary judgment, the 23 Ninth Circuit has held that Plaintiff must be concurrently provided the appropriate 24 warnings under Rand v. Rowland, 154 F.3d 952, 963 (9th Cir. 1998) (en banc). See 25 Woods v. Carey, 684 F.3d 934, 940 (9th Cir. 2012). 26 4. Plaintiff’s opposition to the dispositive motion shall be filed with the Court 1 motion is filed. 2 Plaintiff is also advised to read Rule 56 of the Federal Rules of Civil Procedure and 3 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (holding party opposing summary judgment 4 must come forward with evidence showing triable issues of material fact on every essential 5 element of his claim). Plaintiff is cautioned that failure to file an opposition to 6 Defendants’ motion for summary judgment may be deemed to be a consent by Plaintiff to 7 the granting of the motion, and granting of judgment against Plaintiff without a trial. See 8 Ghazali v. Moran, 46 F.3d 52, 53–54 (9th Cir. 1995) (per curiam); Brydges v. Lewis, 18 9 F.3d 651, 653 (9th Cir. 1994). 10 5. Defendants shall file a reply brief no later than fourteen (14) days after 11 Plaintiff’s opposition is filed. 12 6. The motion shall be deemed submitted as of the date the reply brief is due. 13 No hearing will be held on the motion unless the Court so orders at a later date. 14 7. All communications by the Plaintiff with the Court must be served on 15 Defendants, or Defendants’ counsel once counsel has been designated, by mailing a true 16 copy of the document to Defendants or Defendants’ counsel. 17 8. Discovery may be taken in accordance with the Federal Rules of Civil 18 Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local 19 Rule 16-1 is required before the parties may conduct discovery. 20 9. It is Plaintiff’s responsibility to prosecute this case. Plaintiff must keep the 21 court informed of any change of address and must comply with the court’s orders in a 22 timely fashion. Failure to do so may result in the dismissal of this action for failure to 23 prosecute pursuant to Federal Rule of Civil Procedure 41(b). 24 10. Extensions of time must be filed no later than the deadline sought to be 25 extended and must be accompanied by a showing of good cause. 26 11. Plaintiff’s motion for reconsideration is DENIED. Dkt. No. 34. 1 IT IS SO ORDERED. 2 || Dated: _ September 24,2021 __ fobs Liye Aran) BETH LABSON FREEMAN 3 United States District Judge 4 5 6 7 8 9 10 11 12 13 15 16 Oo Z 18 19 20 21 22 23 24 Order of Service; Deny Mot. for Recon. 25 PRO-SE\BLEVCR 2010252 Robertson, screen, TAC 26 27