Howard v. Carpenter ( 2023 )

1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 REGINALD C. HOWARD, Case No. 3:20-cv-00588-ART-CSD 7 Plaintiff, ORDER ADOPTING REPORT AND v. RECOMMENDATION (ECF NO. 42) 8 AND PARTIALLY GRANTING MOTION G. CARPENTER, et al., TO DISMISS (ECF NO. 28) 9 Defendants. 10 11 Pro se Plaintiff Reginald C. Howard brings this action under 42 U.S.C. § 12 1983 against Defendants Mathew Noriega, Kelvin Chung, Miguel Escamilla, 13 William Gittere, David Drummond, Jesse Cox, Curtis Kerner, Calis, and Daniel 14 Wheeler, asserting two separate Eighth Amendment claims. First, he brings 15 conditions of confinement claims against Noriega, Chung, and Escamilla for 16 locking him in a shower cage for eight hours without access to food, water, 17 medication, or a toilet. Second, he brings a failure to protect claim against 18 Gittere, Drummond, Cox, Kerner, Calis, and Wheeler for failing to prevent 19 attacks by his cellmate. 20 Before the Court is a Report and Recommendation (“R&R”) by United 21 States Magistrate Judge Craig S. Denney, (ECF No. 42), responding to 22 Defendants’ Motion to Dismiss (ECF No. 28) and recommending the Court grant 23 dismissal on Mr. Howard’s failure to protect claim and deny dismissal on his 24 conditions of confinement claim. Defendants have timely objected to the R&R 25 (ECF No. 45). After conducting de novo review, the Court is satisfied with Judge 26 Denney’s reasoning and adopts the R&R in full. It therefore partially grants and 27 partially denies Defendants’ Motion to Dismiss. 28 1 I. Background 2 Mr. Howard alleges that, on November 23, 2018, at approximately 4:00 3 p.m., he was awoken by a conversation between Officer Noriega and a fellow 4 inmate, who was having a mental health episode. (ECF No. 8 at 6.) Mr. Howard 5 was then taken from his cell and placed in a shower cage, where he was made 6 to stand for over eight hours and denied food, water, medicine, and the ability to 7 use the restroom. (Id.) 8 At all times relevant to his complaint, Mr. Howard was a medical inmate 9 at Ely State Prison. (Id. at 6-8.) He suffered from severe back pain, which was 10 exacerbated by his confinement in the shower cage. (Id. at 6.) He made medical 11 requests to “all above named defendants” (including Noriega, Chung, and 12 Escamilla) seeking access to the pain and blood pressure medications he kept in 13 his cell. (Id.) Those requests were denied. (Id.) Several individuals, including 14 Noriega, Chung, Escamilla, and a John Doe sergeant, also allegedly conspired to 15 deny Mr. Howard food, water, and restroom access. (Id.) Eventually, Mr. 16 Howard’s pain became so intolerable that he requested a medical man-down—a 17 status reserved for medical emergencies—which was denied. (Id.) 18 II. Legal Standard 19 A court may dismiss a plaintiff’s complaint for “failure to state a claim 20 upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A properly pleaded 21 complaint must provide “a short and plain statement of the claim showing that 22 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. v. 23 Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does not require detailed 24 factual allegations, it demands more than “labels and conclusions” or a 25 “formulaic recitation of the elements of a cause of action.” Ashcroft v. Iqbal, 556 26 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555). “Factual allegations must 27 be enough to rise above the speculative level.” Twombly, 550 U.S. at 555. Thus, 28 to survive a motion to dismiss, a complaint must contain sufficient factual 1 matter to “state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 2 678 (quoting Twombly, 550 U.S. at 570). Under this standard a district court 3 must accept as true all well-pleaded factual allegations in the complaint and 4 determine whether those factual allegations state a plausible claim for relief. Id. 5 at 678-79. 6 III. Discussion 7 This Court “may accept, reject, or modify, in whole or in part, the findings 8 or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where 9 a party timely objects to a magistrate judge’s R&R, as Defendants did here, (ECF 10 No. 45), the Court is required to “make a de novo determination of those portions 11 of the [R&R] to which objection is made.” Id. Thus, the Court reviews the 12 conditions of confinement portion of Defendants’ Motion to Dismiss de novo. 13 Judge Denney recommends denying dismissal because Mr. Howard has 14 alleged facts sufficient to support his conditions of confinement claim. 15 Defendants respond that dismissal is necessary because (1) Defendants were 16 unaware of the alleged constitutional deprivation when it occurred; (2) even if 17 they were aware, Mr. Howard’s confinement did not constitute a constitutional 18 deprivation; and (3) Defendants are entitled to qualified immunity. Defendants’ 19 arguments are uncompelling. 20 Mr. Howard has alleged facts sufficient to support a finding that 21 Defendants Noriega, Chung, and Escamilla were aware of Mr. Howard’s 22 constitutional deprivation as it occurred. Where a prisoner alleges injuries 23 stemming from unsafe conditions of confinement, prison officials may be held 24 liable only if they acted with “deliberate indifference to a substantial risk of 25 serious harm.” Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). The 26 deliberate indifference standard involves both an objective and subjective 27 component. By alleging Defendants were unaware of Mr. Howard’s constitutional 28 deprivation, Defendants have challenged the sufficiency of the Complaint’s 1 subjective component. 2 Subjectively, a prison official must “know[] of and disregard[] an excessive 3 risk to inmate health and safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). 4 This requires actual, subjective knowledge on the part of the defendant; mere 5 negligence or allegations that she “should have known” will not suffice. Id. at 6 835, 837 (“[D]eliberate indifference entails something more than mere 7 negligence. . . . [The] official must both be aware of facts from which the inference 8 could be drawn that a substantial risk of serious harm exists, and he must also 9 draw the inference.”). 10 Here, Mr. Howard has alleged that he made medical requests to Noriega, 11 Chung, and Escamilla while he was held in the shower cage and that each of 12 them actively contributed to his constitutional deprivation by denying him 13 medication, food, water, and access to a restroom. (ECF No. 8 at 6.). Specifically, 14 Mr. Howard states: “Plaintiff complained to Defendant C/O Noriega, Defendant C/O 15 Chung, Defendant C/O [Escamilla], John Doe Sgt. who signed Plaintiff filed emergency grievance . . . [and other prison employees]. 16 All above named defendants denied Plaintiff medical request for his pain medication and high blood pressure medication that was left in 17 his cell. . . for eight hours Plaintiff was not allowed any water, no food and wasn’t allow the uses of the restroom by all named 18 defendants . . . .” 19 (Id. (emphasis added).) 20 Although Defendants argue that Mr. Howard only complained to Noriega, 21 Chung, and Escamilla after he was released from confinement, this conflicts with 22 the allegations that Defendants denied him medication and actively participated 23 in the denial of food, water, and restroom access. (Id. (“for eight hours Plaintiff 24 was not allowed any water, no food and wasn’t allow the uses of the restroom by 25 all named Defendants . . . .”) (emphasis added).) 26 The Complaint alleges that John Doe “signed Plaintiff[’s] filed emergency 27 grievance.” (Id.) Defendants argue that this allegation somehow concedes that 28 Noriega, Chung, and Escamilla were only informed of Mr. Howard’s confinement 1 the morning after it occurred, when Mr. Howard filed his grievance. This 2 argument ignores the allegation that Noriega, Chung, and Escamilla denied Mr. 3 Howard his medicine and actively participated in the deprivation of food, water, 4 and bathroom facilities. Most naturally, the complaint simply alleges that John 5 Doe Sargeant signed Mr. Howard’s grievance the next day. 6 Defendants also argue that Mr. Howard has not demonstrated an 7 “objective” deprivation under his conditions of confinement claim. Specifically, 8 they object to Judge Denney’s reliance on Johnson v. Lewis and Hope v. Pelzer, 9 which they claim involved significantly more severe depravations than the one 10 alleged by Mr. Howard. (ECF no. 45 at 9.) In fact, the deprivations alleged in 11 Hope are in some ways less severe than Mr. Howard’s alleged deprivation and 12 sufficient, along with the other cases Judge Denney cites in his R&R, to support 13 a finding of objective deprivation. 14 In addition to the subjective test described above, an alleged deprivation 15 must satisfy an “objective” test by being “sufficiently serious.” Farmer, 511 U.S. 16 at 834 (citation omitted). To meet this standard, a plaintiff must allege a 17 deprivation of “the minimal civilized measure of life's necessities.” Johnson v. 18 Lewis, 217 F.3d 726, 731 (9th Cir. 2000). These necessities include “adequate 19 shelter, food, clothing, sanitation, medical care, and personal safety.” Johnson, 20 217 F.3d at 731. In determining whether a deprivation occurred, courts should 21 consider the circumstances, nature, and duration of an alleged deprivation—the 22 more serious the circumstances, the shorter the deprivation must be. Id.; 23 Hoptowit v. Ray, 682 F.2d 1287, 1259 (9th Cir. 1982) (“The more basic the need, 24 the shorter time it can be withheld.”); see also Anderson v. County of Kern, 45 25 F.3d 1310, 1314, as amended, 75 F.3d 448 (9th Cir. 1995) (“[A] lack of sanitation 26 that is severe or prolonged can constitute an infliction of pain within the meaning 27 of the Eighth Amendment.”). 28 In Hope v. Pelzer, the Supreme Court held that “the Eighth Amendment 1 violation [was] obvious” after the plaintiff was tied to a hitching post on two 2 occasions. 535 U.S. 730, 733-34, 38 (2002). The first occasion lasted only two 3 hours, and the plaintiff was offered drinking water and bathroom breaks every 4 15 minutes. Id. The second occasion occurred a month later, lasted 7 hours, and 5 the plaintiff was given water “only once or twice” with no bathroom breaks. Id. at 6 734. The plaintiff was also subject to “pain and discomfort” from his connection 7 to the hitching post and, at least on the second occasion, was made to remove 8 his shirt, burned by the sun, and taunted with water that he could not reach. 9 Id. The Court held that receiving no bathroom breaks “created a risk of particular 10 discomfort and humiliation” and that all factors together “violated the basic 11 concept underlying the Eighth Amendment, which is nothing less than the 12 dignity of man.” Id. at 738. 13 The individual aspects of Mr. Howard’s deprivation either meet or exceed 14 those described in Hope. Mr. Howard was subject to a longer period of 15 confinement (eight hours vs. Hope’s seven), offered fewer water breaks (zero 16 times vs. Hope’s two), provided the same number of bathroom breaks (zero), 17 experienced at least a comparable degree of “pain and discomfort” (so bad that 18 he requested declaration of a medical emergency), and was deprived of doctor- 19 prescribed medication (unlike the plaintiff in Hope). If the Hope plaintiff’s 20 deprivation was “obvious,” so too was Mr. Howard’s. This deprivation, along with 21 Defendants’ awareness of it and the other cases cited in Judge Denney’s R&R, is 22 enough to support Mr. Howard’s conditions of confinement claim at this early 23 stage in the litigation. 24 Finally, Defendants object that Noriega, Chung, and Escamilla are 25 entitled to qualified immunity and that Mr. Howard cannot overcome their 26 qualified immunity defense unless he affirmatively cites caselaw addressing the 27 issue. (ECF No. 45 at 11-12.) Defendants misconstrue Mr. Howard’s burden 28 and are not entitled to qualified immunity. 1 When the defense of qualified immunity is raised in a 12(b)(6) motion, 2 “dismissal is not appropriate unless [the Court] can determine, based on the 3 complaint itself, that qualified immunity applies.” O’Brien v. Welty, 818 F.3d 4 920, 936 (9th Cir. 2016) (internal quotation marks omitted). A court considers 5 whether plaintiff’s factual allegations, taken as true, “support the claim that 6 the officials’ conduct violated clearly established constitutional rights. . . .” 7 Keates v. Koile, 883 F.3d 1228, 1235 (9th Cir. 2018). “If the operative 8 complaint contains even one allegation of a harmful act that would constitute a 9 violation of a clearly established constitutional right, then plaintiffs are entitled 10 to go forward with their claims.” Id. (internal quotation marks omitted). Thus, 11 at the motion to dismiss stage, a plaintiff like Mr. Howard is not required to 12 anticipate the defense of qualified immunity in his complaint or to affirmatively 13 cite to any caselaw on qualified immunity. C.f. Chavez v. Robinson, 817 F.3d 14 1162, 1169 (9th Cir. 2016) (overturning the district court’s sua sponte 15 dismissal of plaintiff’s complaint under 28 U.S.C. § 1915(e)(2)(B)(iii) and 16 holding that dismissal is only appropriate at that stage when a complaint 17 “clearly show[s] that [plaintiff] would be unable to overcome qualified 18 immunity.”). 19 Since Mr. Howard has a clearly-established right to be free of the 20 punishment alleged in his complaint, as demonstrated in this order and in Judge 21 Denney’s R&R, Defendants are not entitled to qualified immunity. 22 As for Mr. Howard’s failure to protect claim, Mr. Howard did not object to 23 Judge Denney’s recommendation that the Court dismiss that claim. Thus, the 24 Court is only required to review for clear error. Thomas v. Arn, 474 U.S. 140, 149 25 (1985) (Where a party fails to object to a magistrate judge’s recommendation, the 26 Court is not required to conduct “any review at all . . . of any issue that is not 27 the subject of an objection.”); see also United States v. Reyna-Tapia, 328 F.3d 28 1114, 1116 (9th Cir. 2003) (“De novo review of the magistrate judges’ findings 1 || and recommendations is required if, but onlyif, one or both parties file 2 || objections to the findings and recommendations.”) (emphasis in original); Fed. 3 || R. Civ. P. 72, Advisory Committee Notes (1983) (providing that the Court “need 4 || only satisfy itself that there is no clear error on the face of the record in order to 5 || accept the recommendation.”). The court is satisfied that Judge Denney did not 6 || clearly err and that the failures in Mr. Howard’s complaint can be addressed in 7 || a future motion to amend. (See ECF No. 44.) 8 IV. Conclusion 9 It is therefore ordered that Judge Denney’s Report and Recommendation 10 || (ECF No. 42) partially granting and partially denying Defendants’ Motion to 11 || Dismiss (ECF No. 28) is accepted and adopted in full. It is further ordered that 12 || Defendants’ Motion to Dismiss (ECF No. 28) is granted in part and denied in 13 || part, as described above. 14 15 Dated this 2224 Day of December 2023. 16 17 Ap 1 flosed Jd 18 ANNE R. TRAUM 19 UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28