1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID E. EDWARDS, No. 2:21-cv-00259-DAD-EFB (PC) 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 M. KUERSTEN and CDCR, 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 18 U.S.C. § 1983. This matter proceeds on his Second Amended Complaint (SAC). ECF No. 45. 19 Now before the court is defendant Kuersten’s motion to partially dismiss that complaint. ECF 20 No. 46. The court also addresses plaintiff’s addition of the California Department of Corrections 21 and Rehabilitation (CDCR) as a defendant in the SAC. ECF No. 45. 22 I. Background 23 Plaintiff filed his original complaint against defendant Kuersten on February 10, 2021. 24 ECF No. 1. The court dismissed the complaint, and plaintiff filed his First Amended Complaint 25 (FAC) on June 4, 2021. ECF No. 11. Defendant Kuersten subsequently moved to dismiss the 26 FAC, which this court granted in part and denied in part. ECF Nos. 33, 38. Specifically, the 27 court dismissed plaintiff’s claim for injunctive relief as moot because plaintiff had been 28 ///// 1 transferred from CSP-Solano. Plaintiff was granted leave to amend his complaint in order to 2 allege that he has a reasonable expectation of being returned to CSP-Solano.1 ECF No. 38. 3 Plaintiff filed his SAC on December 21, 2022. ECF No. 45. In the SAC, plaintiff alleges 4 that he suffers from REM sleep disorder. Id. at 4. According to plaintiff, while he was housed at 5 CSP-Solano, he was denied, in deliberate indifference to his serious medical needs, a reasonable 6 accommodation of a lower bunk chrono. Id. at 4-6. Plaintiff also adds CDCR as a defendant, and 7 seeks injunctive relief against CDCR. Id. at 3-6. 8 II. Motion to Partially Dismiss SAC and Additional Defendant 9 A. Legal Standard for Motion to Dismiss 10 A complaint may be dismissed for “failure to state a claim upon which relief may be 11 granted.” Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss for failure to state a claim, a 12 plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell 13 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has “facial plausibility when the 14 plaintiff pleads factual content that allows the court to draw the reasonable inference that the 15 defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 16 (citing Twombly, 550 U.S. at 556). The plausibility standard is not akin to a “probability 17 requirement,” but it requires more than a sheer possibility that a defendant has acted unlawfully. 18 Iqbal, 556 U.S. at 678. 19 Dismissal under Rule 12(b)(6) may be based on either: (1) lack of a cognizable legal 20 theory, or (2) insufficient facts under a cognizable legal theory. Chubb Custom Ins. Co., 710 F.3d 21 at 956. Dismissal also is appropriate if the complaint alleges a fact that necessarily defeats the 22 claim. Franklin v. Murphy, 745 F.2d 1221, 1228-1229 (9th Cir. 1984). In resolving a Rule 23 12(b)(6) motion to dismiss, the court must construe the complaint in the light most favorable to 24 the plaintiff and accept all well-pleaded factual allegations as true (and any reasonable inference 25 supported by the facts). Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003). 26 ///// 27
28 1 Defendant Kuersten is employed at CSP-Solano. 1 For purposes of dismissal under Rule 12(b)(6), the court generally considers only 2 allegations contained in the pleadings, exhibits attached to the complaint, and matters properly 3 subject to judicial notice, and construes all well-pleaded material factual allegations in the light 4 most favorable to the nonmoving party. Chubb Custom Ins. Co. v. Space Sys./Loral, Inc., 710 5 F.3d 946, 956 (9th Cir. 2013); Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012). 6 B. Analysis 7 This court previously dismissed plaintiff’s claim for an injunction ordering defendant 8 Kuersten to give plaintiff a lower bunk chrono for the duration of his incarceration at CSP-Solano 9 as moot. Plaintiff had been transferred to another prison and accordingly, defendant Kuersten no 10 longer had the power to provide or deny a lower bunk chrono. ECF No. 38. Plaintiff was granted 11 “leave to amend to allow [him] the opportunity to allege that he has a reasonable expectation of 12 being returned to CSP-Solano.” Id. Thereafter, he filed his SAC which states:
13 Plaintiff was transferred to another prison because CSP Solano changed Plaintiff’s medical assessment from “High Risk” to “Medium Risk”. According to medical 14 staff at CTF, Plaintiff’s current location, when Plaintiff turned 65 on October 8, 2022 he became “High Risk” again. Plaintiff’s annual review is in February 2023 15 and he will be put up for transfer back to CSP Solano due to the medical assessment of “High Risk”. For the above reasons, of not including REM Sleep 16 Disorder in Defendants’ organizations guidelines and Plaintiff’s high probability of being returned to CSP Solano the injunctive relief sought by Plaintiff is not 17 moot. 18 ECF No. 45 at 5. In his motion, defendant Kuersten argues that these allegations do not state a 19 claim to injunctive relief. Defendant Kuersten also maintains that any amendment would be 20 futile, and that plaintiff should be denied leave to amend. 21 Defendant Kuersten is correct that plaintiff has not alleged facts showing a reasonable 22 expectation of being returned to CSP-Solano. At the time plaintiff filed the SAC, plaintiff was 23 housed at the Correctional Training Facility (CTF) in Soledad, and he remains there today, 24 months after the time (February 2023) plaintiff alleges he will be put up for transfer back to CSP- 25 Solano.2 Plaintiff’s conclusory, unsupported allegations that “he will be put up for transfer back 26 to CSP Solano” is not sufficient to allege facts showing a reasonable expectation of being 27 2 Plaintiff’s address of record remains CTF-Soledad, and his location via the CDCR 28 inmate locator website reflects the same. 1 returned to CSP-Solano, where defendant Kuersten would again have the power to provide or 2 deny a lower bunk chrono. Nor does plaintiff cite to any CDCR regulations or medical record 3 that indicates he is likely to be transferred. ECF No. 45. As such, plaintiff’s claim for injunctive 4 relief against defendant Kuersten remains moot, and must be dismissed. See Darring v. 5 Kincheloe, 783 F.2d 874, 866 (9th Cir. 1986) (finding inmate’s claim for injunctive relief moot 6 where he was transferred to another prison without either a “reasonable expectation” or 7 “demonstrated probability” that he would return to the initial prison that was the subject of his 8 complaint). 9 C. Screening of SAC’s Inclusion of CDCR 10 Notably, plaintiff dd not argue in his opposition to defendant’s motion, that he has a 11 reasonable expectation of being transferred back to CSP-Solano. ECF No. 47. Rather, he 12 switched his focus from defendant Kuersten to the agency itself and maintains that he is entitled 13 to injunctive relief against the CDCR, which he names as an additional defendant in his SAC.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID E. EDWARDS, No. 2:21-cv-00259-DAD-EFB (PC) 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 M. KUERSTEN and CDCR, 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 18 U.S.C. § 1983. This matter proceeds on his Second Amended Complaint (SAC). ECF No. 45. 19 Now before the court is defendant Kuersten’s motion to partially dismiss that complaint. ECF 20 No. 46. The court also addresses plaintiff’s addition of the California Department of Corrections 21 and Rehabilitation (CDCR) as a defendant in the SAC. ECF No. 45. 22 I. Background 23 Plaintiff filed his original complaint against defendant Kuersten on February 10, 2021. 24 ECF No. 1. The court dismissed the complaint, and plaintiff filed his First Amended Complaint 25 (FAC) on June 4, 2021. ECF No. 11. Defendant Kuersten subsequently moved to dismiss the 26 FAC, which this court granted in part and denied in part. ECF Nos. 33, 38. Specifically, the 27 court dismissed plaintiff’s claim for injunctive relief as moot because plaintiff had been 28 ///// 1 transferred from CSP-Solano. Plaintiff was granted leave to amend his complaint in order to 2 allege that he has a reasonable expectation of being returned to CSP-Solano.1 ECF No. 38. 3 Plaintiff filed his SAC on December 21, 2022. ECF No. 45. In the SAC, plaintiff alleges 4 that he suffers from REM sleep disorder. Id. at 4. According to plaintiff, while he was housed at 5 CSP-Solano, he was denied, in deliberate indifference to his serious medical needs, a reasonable 6 accommodation of a lower bunk chrono. Id. at 4-6. Plaintiff also adds CDCR as a defendant, and 7 seeks injunctive relief against CDCR. Id. at 3-6. 8 II. Motion to Partially Dismiss SAC and Additional Defendant 9 A. Legal Standard for Motion to Dismiss 10 A complaint may be dismissed for “failure to state a claim upon which relief may be 11 granted.” Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss for failure to state a claim, a 12 plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell 13 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has “facial plausibility when the 14 plaintiff pleads factual content that allows the court to draw the reasonable inference that the 15 defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 16 (citing Twombly, 550 U.S. at 556). The plausibility standard is not akin to a “probability 17 requirement,” but it requires more than a sheer possibility that a defendant has acted unlawfully. 18 Iqbal, 556 U.S. at 678. 19 Dismissal under Rule 12(b)(6) may be based on either: (1) lack of a cognizable legal 20 theory, or (2) insufficient facts under a cognizable legal theory. Chubb Custom Ins. Co., 710 F.3d 21 at 956. Dismissal also is appropriate if the complaint alleges a fact that necessarily defeats the 22 claim. Franklin v. Murphy, 745 F.2d 1221, 1228-1229 (9th Cir. 1984). In resolving a Rule 23 12(b)(6) motion to dismiss, the court must construe the complaint in the light most favorable to 24 the plaintiff and accept all well-pleaded factual allegations as true (and any reasonable inference 25 supported by the facts). Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003). 26 ///// 27
28 1 Defendant Kuersten is employed at CSP-Solano. 1 For purposes of dismissal under Rule 12(b)(6), the court generally considers only 2 allegations contained in the pleadings, exhibits attached to the complaint, and matters properly 3 subject to judicial notice, and construes all well-pleaded material factual allegations in the light 4 most favorable to the nonmoving party. Chubb Custom Ins. Co. v. Space Sys./Loral, Inc., 710 5 F.3d 946, 956 (9th Cir. 2013); Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012). 6 B. Analysis 7 This court previously dismissed plaintiff’s claim for an injunction ordering defendant 8 Kuersten to give plaintiff a lower bunk chrono for the duration of his incarceration at CSP-Solano 9 as moot. Plaintiff had been transferred to another prison and accordingly, defendant Kuersten no 10 longer had the power to provide or deny a lower bunk chrono. ECF No. 38. Plaintiff was granted 11 “leave to amend to allow [him] the opportunity to allege that he has a reasonable expectation of 12 being returned to CSP-Solano.” Id. Thereafter, he filed his SAC which states:
13 Plaintiff was transferred to another prison because CSP Solano changed Plaintiff’s medical assessment from “High Risk” to “Medium Risk”. According to medical 14 staff at CTF, Plaintiff’s current location, when Plaintiff turned 65 on October 8, 2022 he became “High Risk” again. Plaintiff’s annual review is in February 2023 15 and he will be put up for transfer back to CSP Solano due to the medical assessment of “High Risk”. For the above reasons, of not including REM Sleep 16 Disorder in Defendants’ organizations guidelines and Plaintiff’s high probability of being returned to CSP Solano the injunctive relief sought by Plaintiff is not 17 moot. 18 ECF No. 45 at 5. In his motion, defendant Kuersten argues that these allegations do not state a 19 claim to injunctive relief. Defendant Kuersten also maintains that any amendment would be 20 futile, and that plaintiff should be denied leave to amend. 21 Defendant Kuersten is correct that plaintiff has not alleged facts showing a reasonable 22 expectation of being returned to CSP-Solano. At the time plaintiff filed the SAC, plaintiff was 23 housed at the Correctional Training Facility (CTF) in Soledad, and he remains there today, 24 months after the time (February 2023) plaintiff alleges he will be put up for transfer back to CSP- 25 Solano.2 Plaintiff’s conclusory, unsupported allegations that “he will be put up for transfer back 26 to CSP Solano” is not sufficient to allege facts showing a reasonable expectation of being 27 2 Plaintiff’s address of record remains CTF-Soledad, and his location via the CDCR 28 inmate locator website reflects the same. 1 returned to CSP-Solano, where defendant Kuersten would again have the power to provide or 2 deny a lower bunk chrono. Nor does plaintiff cite to any CDCR regulations or medical record 3 that indicates he is likely to be transferred. ECF No. 45. As such, plaintiff’s claim for injunctive 4 relief against defendant Kuersten remains moot, and must be dismissed. See Darring v. 5 Kincheloe, 783 F.2d 874, 866 (9th Cir. 1986) (finding inmate’s claim for injunctive relief moot 6 where he was transferred to another prison without either a “reasonable expectation” or 7 “demonstrated probability” that he would return to the initial prison that was the subject of his 8 complaint). 9 C. Screening of SAC’s Inclusion of CDCR 10 Notably, plaintiff dd not argue in his opposition to defendant’s motion, that he has a 11 reasonable expectation of being transferred back to CSP-Solano. ECF No. 47. Rather, he 12 switched his focus from defendant Kuersten to the agency itself and maintains that he is entitled 13 to injunctive relief against the CDCR, which he names as an additional defendant in his SAC. 14 Plaintiff seeks to require CDCR “to recognize REM Sleep Disorder as a medical condition that 15 necessitates the issuing of a lower bunk chrono” on behalf of “any inmate housed at CDCR by 16 being assigned to sleep on a top bunk while suffering from REM Sleep Disorder.” Id. at 1-2; see 17 also ECF No. 45 at 3. According to plaintiff, no CDCR institution recognizes REM Sleep 18 Disorder as a medical condition requiring a lower bunch chrono. Id. at 2. 19 Pursuant to 28 U.S.C. § 1915A(a), this court must screen plaintiff’s claims in the SAC 20 against potential defendant CDCR. To begin with, CDCR is not a “person” subject to suit under 21 section 1983. See Brown v. California Dep’t of Corr., 554 F.3d 747, 752 (9th Cir. 2009) (finding 22 that “[t]he district court correctly held that the California Department of Corrections . . . [was] 23 entitled to Eleventh Amendment immunity.”). Thus, any claim against CDCR must be dismissed 24 without leave to amend. 25 Furthermore, plaintiff’s claim for injunctive relief on behalf of all inmates, regardless of 26 defendant, does not “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 27 570. Pro se litigants such as plaintiff have no authority to represent anyone other than 28 themselves, and lack the representative capacity to file motions and other documents on behalf of 1 other prisoners. See Johns v. County of San Diego, 114 F.3d 874, 877 (9th Cir. 1997) (“[A] non- 2 lawyer ‘has no authority to appear as an attorney for others than himself,’”) (quoting C.E. Pope 3 Equity Trust v. United States, 818 F.2d 696, 697 (9th Cir. 1987)); see also Simon v. Hartford Life, 4 Inc., 546 F.3d 661, 664 (9th Cir. 2008) (non-attorney plaintiff may not attempt to pursue claim on 5 behalf of others in a representative capacity). To the extent that plaintiff is bringing a claim for 6 injunctive relief on behalf of himself (ECF No. 45 at 5), however, he must name as defendant a 7 person in his or her official capacity such as the prison warden. 8 III. Conclusion 9 In sum, because plaintiff has not adequately alleged that he has a reasonable expectation 10 of being returned to CSP-Solano, his claim for injunctive relief against defendant Kuersten must 11 be dismissed. Plaintiff may seek leave to amend his complaint should he be transferred to CSP- 12 Solano during the pendency of this litigation. For the reasons stated above, plaintiff’s claims 13 against newly-named defendant CDCR must be dismissed with prejudice. Plaintiff may not bring 14 a claim on behalf of other inmates, but to the extent plaintiff seeks injunctive relief personal to 15 him, he must name a defendant other than CDCR. 16 IV. Recommendation 17 For the foregoing reasons, it is RECOMMENDED that: 18 1. Defendant Kuersten’s motion to dismiss plaintiff’s claim for injunctive relief 19 against him be GRANTED. This claim should be dismissed with leave to amend should plaintiff 20 be returned to CSP-Solano; 21 2. Plaintiff’s claims against newly-named defendant CDCR be DISMISSED WITH 22 PREJUDICE; and 23 3. Plaintiff be given leave to amend his complaint within thirty days of any order 24 adopting these findings and recommendations, to name a proper defendant for any claim of 25 injunctive relief personal to him. 26 These findings and recommendations are submitted to the United States District Judge 27 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 28 after being served with these findings and recommendations, any party may file written 1 | objections with the court and serve a copy on all parties. Such a document should be captioned 2 || “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 3 || within the specified time may waive the right to appeal the District Court's order. Turner v. 4 || Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). In 5 || his objections petitioner may address whether a certificate of appealability should issue in the 6 || event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing § 7 || 2255 Cases (the district court must issue or deny a certificate of appealability when it enters a 8 | final order adverse to the applicant). 9 10 | Dated: August 4, 2023. □□ PDEA EDMUND F. BRENNAN M UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28