Beulah v. Broomfield

• Court: District Court, N.D. California
• Decided: April 11, 2024
• Docket: 5:24-cv-00205
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DARYL ANTHONY BEULAH, Case No. 24-cv-00205-BLF

8 Plaintiff, ORDER GRANTING MOTION TO 9 v. AMEND COMPLAINT; OF SERVICE; DENYING MOTION FOR 10 R. BROOMFIELD, et al., APPOINTMENT OF COUNSEL 11 Defendants. Re: Dkt. Nos. 8, 12

12 13 Plaintiff, a prisoner at San Quentin State Prison (SQSP)1, filed a pro se civil rights action 14 in state court. Defendants removed this action from state court and paid the filing fee. Dkt. No. 1. 15 Plaintiff has sought to amend the complaint, which Defendants have not opposed. Dkt. No. 12, 16 11, 13. Plaintiff’s motion to amend the complaint (Dkt. No. 12) is GRANTED. Plaintiff’s 17 amended complaint (Dkt. No. 12) is before the Court for screening pursuant to 28 U.S.C. § 18 1915A, and service of the complaint on Defendants is ordered. Plaintiff will be granted leave to 19 proceed in forma pauperis (for purposes other than the filing fee) by separate order. 20 DISCUSSION 21 A. Standard of Review 22 A federal court must conduct a preliminary screening in any case in which a prisoner seeks 23 redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 24 § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims 25 that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 26 monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), 27 1 (2). Pro se pleadings must, however, be liberally construed. See United States v. Qazi, 975 F.3d 2 989, 993 (9th Cir. 2020). 3 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 4 claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Specific facts are not 5 necessary; the statement need only “‘give the defendant fair notice of what the . . . claim is and the 6 grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted). 7 While Rule 8 does not require detailed factual allegations, it demands more than an unadorned, 8 the-defendant-unlawfully-harmed-me accusation. Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009). 9 A pleading that offers only labels and conclusions, or a formulaic recitation of the elements of a 10 cause of action, or naked assertions devoid of further factual enhancement does not suffice. Id. 11 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: 12 (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that 13 the alleged violation was committed by a person acting under the color of state law. See West v. 14 Atkins, 487 U.S. 42, 48 (1988). 15 B. Plaintiff’s Complaint 16 Plaintiff names as Defendants: 17 a. Ron Bloomfield, Acting Warden of SQSP; 18 b. Kathleen Allison, CDCR Director; 19 c. Clarence Cryer, Medical CEO of SQSP; 20 d. Ralph Diaz, Secretary of CDCR; 21 e. Shannon Garrigan, Chief Physician and Surgeon of SQSP; 22 f. J. Clark Kelso, Medical Receiver; 23 g. Ron Davis, Associate Director of Reception Centers. 24 Dkt. No. 12 at 3. He also refers to the following Defendants: 25 h. Joseph Bick; 26 i. R. Steve Tharratt; 27 j. Dean Borders; 1 Id. at 4. 2 Plaintiff alleges that Defendants failed to protect his health and safety when they allowed 3 the transfer of 121 prisoners from the California Institution for Men (CIM), some of whom were 4 positive for COVID-19, to SQSP in May 2020. Id. Plaintiff contracted COVID-19 and 5 experienced long-term impacts from the disease. Id. 6 Plaintiff alleges Defendants’ conduct violated the Eighth Amendment as well as the 7 California Constitution Article 1, section 17, and seeks compensatory and punitive damages. Id. 8 at 4, 12-14. 9 C. Legal Claims 10 Liberally construed, the allegations regarding the May 2020 transfer of CIM inmates into 11 SQSP state cognizable Eighth Amendment claims. Farmer v. Brennan, 511 U.S. 825, 837 (1994) 12 (prison official is deliberately indifferent if he or she knows that prisoner faces substantial risk of 13 serious harm and disregards that risk by failing to take reasonable steps to abate it). 14 The Court DISMISSES Plaintiff’s claims against defendant Tharratt. The Court 15 understands, as the Attorney General has represented to another court in this district, that “[t]o the 16 best of [the Attorney General’s] knowledge, [Dr.] Tharratt died on August 20, 2020.” See Case 17 No. 3:20-cv-07845-CRB, Dkt. No. 37, 37-1. The Court takes judicial notice pursuant to Federal 18 Rule of Evidence 201 of the filing in that case, which attaches Dr. Tharratt’s obituary published on 19 the California Department of Corrections and Rehabilitation website on October 6, 2020, 20 available at https://www.cdcr.ca.gov/insidecdcr/2020/10/06/dr-robert-tharratt-longtime-cchcs- 21 medical-director-passes-away/. See Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 22 n.6 (9th Cir. 2006) (federal courts “may take judicial notice of court filings and other matters of 23 public record”); Bullock v. Johnson, No. CV 15-2070 PA (AS), 2018 WL 5880736, at *13 n.19 24 (C.D. Cal. Aug. 10, 2018), report and recommendation adopted, No. CV 15-2070 PA (AS), 2018 25 WL 4791089 (C.D. Cal. Oct. 3, 2018) (taking judicial notice of CDCR obituary). 26 Dr. Tharratt’s death therefore preceded the filing of this action on March 13, 2024. “[A] 27 party cannot maintain a suit on behalf of, or against, or join, a dead person, or in any other way 1 successor) party to a federal lawsuit.” LN Mgmt., LLC v. JPMorgan Chase Bank, N.A., 957 F.3d 2 943, 955 (9th Cir. 2020). Dr. Tharratt was therefore not an appropriately named Defendant at the 3 onset of this litigation. If Plaintiff wishes to proceed with a claim against the Estate of Dr. 4 Tharratt, he may file an amended complaint within 28 days of the date of this Order. 5 The Court also dismisses Defendant Kelso on the basis of his quasi-judicial immunity. See 6 Harris v. Allison, No. 20-CV-09393-CRB, 2022 WL 2232526, at *1 (N.D. Cal. June 7, 2022) 7 (dismissing Kelso from a case raising materially similar allegations as those made here); In re 8 CIM-SQ Transfer Cases, No. 22-mc-80066-WHO at Dkt. No. 63 (N.D. Cal. July 21, 2022) 9 (same); Patterson v. Kelso, 698 F. App’x 393, 394 (9th Cir. 2017) (“Kelso is entitled to quasi- 10 judicial immunity” with respect to negligence claim). 11 The Court dismisses Plaintiff’s claim under the California Constitution Article 1, section 12 17. State and federal courts have recognized that this provision does not provide a private right of 13 action for damages. See, e.g., Quezada v. California, No. 120CV00959DADSAB, 2021 WL 14 2417119, at *5 (E.D. Cal. June 14, 2021) (citing Giraldo v. Dep’t of Corr. & Rehab., 168 Cal. 15 App. 4th 231, 256 (2008)). 16 MOTION FOR APPOINTMENT OF COUNSEL 17 “Generally, a person has no right to counsel in civil actions.” Palmer v. Valdez, 560 F.3d 18 965, 970 (9th Cir. 2009). “However, a court may under ‘exceptional circumstances’ appoint 19 counsel for indigent civil litigants pursuant to 28 U.S.C. § 1915(e)(1).” Id. (citing Agyeman v. 20 Corrs. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004), cert. denied sub nom. Gerber v. 21 Agyeman, 545 U.S. 1128 (2005)). A finding of “exceptional circumstances” requires an 22 evaluation of the likelihood of the plaintiff’s success on the merits and of the plaintiff’s ability to 23 articulate his claims pro se in light of the complexity of the legal issues involved. See Agyeman, 24 390 F.3d at 1103. Both factors must be viewed together before reaching a decision on a request 25 for counsel under § 1915. See id. 26 Plaintiff may be likely to succeed on the merits of some of his claims, but he is able to 27 articulate his claims adequately at the present stage of the case. His motion is denied without 1 exceptional circumstances are present to warrant it. 2 CONCLUSION 3 For the foregoing reasons, the Court orders as follows. 4 1. The Court DISMISSES Defendant Tharratt. 5 2. If Plaintiff chooses to file a second amended complaint (“SAC”) naming the Estate 6 of Dr. Tharratt, he must file the SAC within twenty-eight (28) days of the date of this Order. The 7 SAC must include the caption and civil case number used in this order, 24-cv-00205-BLF, and the 8 words “SECOND AMENDED COMPLAINT” on the first page. Plaintiff must use the Court’s 9 complaint form and answer all the questions on the form in order for the action to proceed. 10 Because the SAC completely replaces the previous complaint, Plaintiff must include in his SAC 11 all the claims he wishes to present. Plaintiff may not incorporate material from the prior 12 complaints by reference. 13 3. The Court DISMISSES Defendant Kelso. 14 4. The Court DISMISSES Plaintiff’s claim under the California Constitution. 15 5. The Court DENIES Plaintiff’s request for appointment of counsel. 16 6. The Court ORDERS that service on the following CDCR Defendants shall proceed 17 under the California Department of Corrections and Rehabilitation’s (“CDCR”) e-service program 18 for civil rights cases from prisoners in the CDCR’s custody: 19 a. Ron Bloomfield, Acting Warden of SQSP; 20 b. Kathleen Allison, CDCR Director; 21 c. Clarence Cryer, Medical CEO of SQSP; 22 d. Ralph Diaz, Secretary of CDCR; 23 e. Shannon Garrigan, Chief Physician and Surgeon of SQSP; 24 f. Ron Davis, Associate Director of Reception Centers 25 g. Joseph Bick; 26 h. Dean Borders; 27 i. Louie Escobell. 1 following documents: the operative complaint (Dkt. No. 12), this Order of Service, a CDCR 2 Report of E-Service Waiver form, and a summons. The Clerk also shall serve a copy of this order 3 on the Plaintiff. 4 No later than 40 days after service of this order via email on the CDCR, the CDCR shall 5 provide the court a completed CDCR Report of E-Service Waiver advising the court which 6 defendant(s) listed in this order will be waiving service of process without the need for service by 7 the United States Marshal Service (“USMS”) and which defendant(s) decline to waive service or 8 could not be reached. The CDCR also shall provide a copy of the CDCR Report of E-Service 9 Waiver to the California Attorney General’s Office which, within 21 days, shall file with the Court 10 a waiver of service of process for the defendant(s) who are waiving service. 11 Upon receipt of the CDCR Report of E-Service Waiver, the Clerk shall prepare for each 12 defendant who has not waived service according to the CDCR Report of E-Service Waiver a 13 USM-205 Form. The Clerk shall provide to the USMS the completed USM-205 forms and copies 14 of this order, the summons and the operative complaint for service upon each defendant who has 15 not waived service. The Clerk also shall provide to the USMS a copy of the CDCR Report of E- 16 Service Waiver. 17 7. All Defendants are cautioned that Rule 4 of the Federal Rules of Civil Procedure 18 requires them to cooperate in saving unnecessary costs of service of the summons and complaint. 19 Pursuant to Rule 4, if defendants, after being notified of this action and asked by the Court, on 20 behalf of plaintiff, to waive service of the summons, fail to do so, they will be required to bear the 21 cost of such service unless good cause can be shown for their failure to sign and return the waiver 22 form. 23 8. In order to expedite the resolution of this case, the court orders as follows: 24 a. No later than 90 days from the date of this order, Defendants shall serve and 25 file a motion for summary judgment or other dispositive motion. A motion for summary judgment 26 must be supported by adequate factual documentation and must conform in all respects to Federal 27 Rule of Civil Procedure 56, and must include as exhibits all records and incident reports stemming 1 notice so that Plaintiff will have fair, timely and adequate notice of what is required of him in 2 order to oppose the motion. Woods v. Carey, 684 F.3d 934, 935 (9th Cir. 2012) (notice 3 requirement set out in Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998), must be served 4 concurrently with motion for summary judgment). A motion to dismiss for failure to exhaust 5 available administrative remedies (where such a motion, rather than a motion for summary 6 judgment for failure to exhaust, is appropriate) must be accompanied by a similar notice. Stratton 7 v. Buck, 697 F.3d 1004, 1008 (9th Cir. 2012); Woods, 684 F.3d at 935 (notice requirement set out 8 in Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003), overruled on other grounds by Albino v. Baca, 9 747 F.3d 1162, 1166 (9th Cir. 2014) (en banc), must be served concurrently with motion to 10 dismiss for failure to exhaust available administrative remedies). 11 If defendants are of the opinion that this case cannot be resolved by summary judgment or 12 other dispositive motion, they shall so inform the court prior to the date their motion is due. All 13 papers filed with the court shall be served promptly on plaintiff. 14 b. Plaintiff must serve and file an opposition or statement of non-opposition to 15 the dispositive motion not more than 28 days after the motion is served and filed. 16 c. Plaintiff is advised that a motion for summary judgment under Rule 56 of 17 the Federal Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you 18 must do in order to oppose a motion for summary judgment. Generally, summary judgment must 19 be granted when there is no genuine issue of material fact – that is, if there is no real dispute about 20 any fact that would affect the result of your case, the party who asked for summary judgment is 21 entitled to judgment as a matter of law, which will end your case. When a party you are suing 22 makes a motion for summary judgment that is properly supported by declarations (or other sworn 23 testimony), you cannot simply rely on what your complaint says. Instead, you must set out 24 specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, 25 as provided in [current Rule 56(c)], that contradicts the facts shown in the defendant’s declarations 26 and documents and show that there is a genuine issue of material fact for trial. If you do not 27 submit your own evidence in opposition, summary judgment, if appropriate, may be entered 1 trial. Rand v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998) (en banc). 2 Plaintiff also is advised that a motion to dismiss for failure to exhaust available 3 administrative remedies under 42 U.S.C. § 1997e(a) will, if granted, end your case, albeit without 4 prejudice. You must “develop a record” and present it in your opposition in order to dispute any 5 “factual record” presented by the defendants in their motion to dismiss. Wyatt v. Terhune, 315 6 F.3d 1108, 1120 n.14 (9th Cir. 2003). You have the right to present any evidence to show that you 7 did exhaust your available administrative remedies before coming to federal court. Such evidence 8 may include: (1) declarations, which are statements signed under penalty of perjury by you or 9 others who have personal knowledge of relevant matters; (2) authenticated documents – 10 documents accompanied by a declaration showing where they came from and why they are 11 authentic, or other sworn papers such as answers to interrogatories or depositions; (3) statements 12 in your complaint insofar as they were made under penalty of perjury and they show that you have 13 personal knowledge of the matters state therein. In considering a motion to dismiss for failure to 14 exhaust, the court can decide disputed issues of fact with regard to this portion of the case. 15 Stratton, 697 F.3d at 1008-09. 16 (The Rand and Wyatt/Stratton notices above do not excuse defendants’ obligation to serve 17 said notices again concurrently with motions to dismiss for failure to exhaust available 18 administrative remedies and motions for summary judgment. Woods, 684 F.3d at 935.) 19 d. Defendants must serve and file a reply to an opposition not more than 14 20 days after the opposition is served and filed. 21 e. The motion shall be deemed submitted as of the date the reply is due. No 22 hearing will be held on the motion unless the court so orders at a later date. 23 9. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. 24 No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local Rule 16 is required 25 before the parties may conduct discovery. 26 10. All communications by Plaintiff with the Court must be served on Defendants’ 27 counsel by mailing a true copy of the document to Defendants’ counsel. The Court may disregard ] counsel has been designated, Plaintiff may mail a true copy of the document directly to 2 || Defendants, but once Defendants are represented by counsel, all documents must be mailed to 3 counsel rather than directly to Defendants. 4 11. Plaintiff's responsible for prosecuting this case. Plaintiff must promptly keep the 5 Court informed of any change of address and must comply with the Court’s orders in a timely 6 || fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant 7 || to Federal Rule of Civil Procedure 41(b). Plaintiff must file a notice of change of address in every 8 || pending case every time he is moved to a new facility. 9 12. Any motion for an extension of time must be filed no later than the deadline sought 10 || to be extended and must be accompanied by a showing of good cause. Plaintiff is cautioned that 11 he must include the case name and case number for this case on any document he submits to the 12 || Court for consideration in this case. 13 13. This Order terminates Dkt. Nos. 8, 12. IT IS SO ORDERED. 3 15 || Dated: April 11, 2024

Beth Labson Freeman 18 United States District Judge 19 20 21 22 23 24 25 26 27 28