1 2 3 4 5 6 7 10 11 CHRISTOPHER LIPSEY, Jr., No. 2:17-cv-1434-KJM-EFB P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 REDDY, et al. 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 18 U.S.C. § 1983. After filing his fourth amended complaint – which was served on Ortiz, Smith, 19 and Reddy - defendants moved for judgment on the pleadings as to plaintiff’s California 20 Government Claims Act, arguing that he had failed to allege compliance with the claim- 21 presentation requirements of that act. ECF No. 42. Plaintiff then moved to allege such 22 compliance by way of a fifth amended complaint. ECF Nos. 43 & 45. Thus, the court 23 recommended that defendants’ motion for judgment on the pleadings be denied as moot and 24 ordered that fifth amended complaint be docketed. ECF No. 46. The court must now screen the 25 fifth amended complaint (ECF No. 47). 26 Screening Requirements 27 The court is required to screen complaints brought by prisoners seeking relief against a 28 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 1 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 2 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 3 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 4 A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.” 5 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 6 Cir. 1984). “[A] judge may dismiss [in forma pauperis] claims which are based on indisputably 7 meritless legal theories or whose factual contentions are clearly baseless.” Jackson v. Arizona, 8 885 F.2d 639, 640 (9th Cir. 1989) (citation and internal quotations omitted), superseded by statute 9 on other grounds as stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); Neitzke, 490 10 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, 11 has an arguable legal and factual basis. Id. 12 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the 13 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of 14 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 15 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 16 However, in order to survive dismissal for failure to state a claim, a complaint must contain more 17 than “a formulaic recitation of the elements of a cause of action;” it must contain factual 18 allegations sufficient “to raise a right to relief above the speculative level.” Id. (citations 19 omitted). “[T]he pleading must contain something more . . . than . . . a statement of facts that 20 merely creates a suspicion [of] a legally cognizable right of action.” Id. (alteration in original) 21 (quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure §1216 (3d 22 ed. 2004)). 23 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 24 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. 25 Corp., 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content 26 that allows the court to draw the reasonable inference that the defendant is liable for the 27 misconduct alleged.” Id. (citing Bell Atl. Corp., 550 U.S. at 556). In reviewing a complaint 28 under this standard, the court must accept as true the allegations of the complaint in question, 1 Hospital Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976), as well as construe the pleading 2 in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, Jenkins v. 3 McKeithen, 395 U.S. 411, 421 (1969). 4 Screening Order 5 The fifth amended complaint is, in most respects, substantively like the fourth. Plaintiff 6 does now allege that his state government claims act claims were presented and deemed rejected 7 after forty-five days. ECF No. 47 at 1. He has also attempted to reinsert claims against 8 defendants Scott Kernan – Secretary of the California Department of Corrections and 9 Rehabilitation (“CDCR”) - and the City of Vacaville (ECF No. 47 at 8), whose dismissal on 10 screening was previously adopted by the district judge. ECF No. 31. He alleges that Kernan has 11 promulgated a policy – Cal. Code. Regs. tit. 15 § 3364.1(a)(8) – which allows involuntary 12 medication to be given as discipline and that this policy is “obviously abused and misused.” ECF 13 No. 47 at 8. It is unclear if plaintiff is arguing that the policy at issue – now renumbered at Cal. 14 Code. Regs. tit. 15 § 3999.345 – is unconstitutional. Regardless, his claim that it allows 15 involuntary medication to be administered as discipline appears to be facially incorrect. The 16 language of the code states “[i]nvoluntary [m]edication means the administration of any 17 psychiatric medication or drug to a patient by the use of force, discipline, or restraint, including 18 administration upon a patient who lacks capacity to accept or refuse medication.” Cal. Code. 19 Regs. tit. 15 § 3999.345(a)(6) (emphasis added). Thus, discipline is a method by which 20 involuntary medication may be administered, not a valid purpose underlying such administration. 21 And, to the extent that the code allegedly promulgated by Kernan is abused or misused by 22 subordinate officers of the CDCR, plaintiff has not alleged that Kernan had or should have had 23 any knowledge of such misuse. 24 Plaintiff nevertheless argues that vicarious liability is permitted against Kernan by Cal. 25 Gov’t Code § 815.2. That provision provides, in part, that: 26 A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his 27 employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his 28 personal representative. 1 Cal. Gov’t Code § 815.2(a). Any claim against Kernan in his individual capacity is obviously 2 untenable under this section insofar as he is not, individually, a “public entity.” See Cal. Gov’t 3 Code § 811.2 (“‘Public entity’ includes the state, the Regents of the University of California, the 4 Trustees of the California State University and the California State University, a county, city, 5 district, public authority, public agency, and any other political subdivision or public corporation 6 in the State.”).
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1 2 3 4 5 6 7 10 11 CHRISTOPHER LIPSEY, Jr., No. 2:17-cv-1434-KJM-EFB P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 REDDY, et al. 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 18 U.S.C. § 1983. After filing his fourth amended complaint – which was served on Ortiz, Smith, 19 and Reddy - defendants moved for judgment on the pleadings as to plaintiff’s California 20 Government Claims Act, arguing that he had failed to allege compliance with the claim- 21 presentation requirements of that act. ECF No. 42. Plaintiff then moved to allege such 22 compliance by way of a fifth amended complaint. ECF Nos. 43 & 45. Thus, the court 23 recommended that defendants’ motion for judgment on the pleadings be denied as moot and 24 ordered that fifth amended complaint be docketed. ECF No. 46. The court must now screen the 25 fifth amended complaint (ECF No. 47). 26 Screening Requirements 27 The court is required to screen complaints brought by prisoners seeking relief against a 28 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 1 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 2 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 3 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 4 A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.” 5 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 6 Cir. 1984). “[A] judge may dismiss [in forma pauperis] claims which are based on indisputably 7 meritless legal theories or whose factual contentions are clearly baseless.” Jackson v. Arizona, 8 885 F.2d 639, 640 (9th Cir. 1989) (citation and internal quotations omitted), superseded by statute 9 on other grounds as stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); Neitzke, 490 10 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, 11 has an arguable legal and factual basis. Id. 12 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the 13 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of 14 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 15 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 16 However, in order to survive dismissal for failure to state a claim, a complaint must contain more 17 than “a formulaic recitation of the elements of a cause of action;” it must contain factual 18 allegations sufficient “to raise a right to relief above the speculative level.” Id. (citations 19 omitted). “[T]he pleading must contain something more . . . than . . . a statement of facts that 20 merely creates a suspicion [of] a legally cognizable right of action.” Id. (alteration in original) 21 (quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure §1216 (3d 22 ed. 2004)). 23 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 24 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. 25 Corp., 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content 26 that allows the court to draw the reasonable inference that the defendant is liable for the 27 misconduct alleged.” Id. (citing Bell Atl. Corp., 550 U.S. at 556). In reviewing a complaint 28 under this standard, the court must accept as true the allegations of the complaint in question, 1 Hospital Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976), as well as construe the pleading 2 in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, Jenkins v. 3 McKeithen, 395 U.S. 411, 421 (1969). 4 Screening Order 5 The fifth amended complaint is, in most respects, substantively like the fourth. Plaintiff 6 does now allege that his state government claims act claims were presented and deemed rejected 7 after forty-five days. ECF No. 47 at 1. He has also attempted to reinsert claims against 8 defendants Scott Kernan – Secretary of the California Department of Corrections and 9 Rehabilitation (“CDCR”) - and the City of Vacaville (ECF No. 47 at 8), whose dismissal on 10 screening was previously adopted by the district judge. ECF No. 31. He alleges that Kernan has 11 promulgated a policy – Cal. Code. Regs. tit. 15 § 3364.1(a)(8) – which allows involuntary 12 medication to be given as discipline and that this policy is “obviously abused and misused.” ECF 13 No. 47 at 8. It is unclear if plaintiff is arguing that the policy at issue – now renumbered at Cal. 14 Code. Regs. tit. 15 § 3999.345 – is unconstitutional. Regardless, his claim that it allows 15 involuntary medication to be administered as discipline appears to be facially incorrect. The 16 language of the code states “[i]nvoluntary [m]edication means the administration of any 17 psychiatric medication or drug to a patient by the use of force, discipline, or restraint, including 18 administration upon a patient who lacks capacity to accept or refuse medication.” Cal. Code. 19 Regs. tit. 15 § 3999.345(a)(6) (emphasis added). Thus, discipline is a method by which 20 involuntary medication may be administered, not a valid purpose underlying such administration. 21 And, to the extent that the code allegedly promulgated by Kernan is abused or misused by 22 subordinate officers of the CDCR, plaintiff has not alleged that Kernan had or should have had 23 any knowledge of such misuse. 24 Plaintiff nevertheless argues that vicarious liability is permitted against Kernan by Cal. 25 Gov’t Code § 815.2. That provision provides, in part, that: 26 A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his 27 employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his 28 personal representative. 1 Cal. Gov’t Code § 815.2(a). Any claim against Kernan in his individual capacity is obviously 2 untenable under this section insofar as he is not, individually, a “public entity.” See Cal. Gov’t 3 Code § 811.2 (“‘Public entity’ includes the state, the Regents of the University of California, the 4 Trustees of the California State University and the California State University, a county, city, 5 district, public authority, public agency, and any other political subdivision or public corporation 6 in the State.”). And to the extent he is suing the CDCR itself, his claim fails insofar as the 7 California law in question does not contain any provision authorizing suit in federal court – where 8 Eleventh Amendment immunity applies. See, e.g., Muniz v. Pfeiffer, No. 1:19-CV-0233-LJO- 9 JLT, 2019 U.S. Dist. LEXIS 162486, 2019 WL 4596649, at *15 (E.D. Cal. Sept. 23, 2019) (“In 10 Plaintiffs’ brief in opposition to the motion to dismiss, they cite to various statutes, inter alia 11 California Gov’t Code §§ 815.2, 815.4, 835, in support of the argument that the state has 12 consented to the present lawsuit and thereby waived its sovereign immunity . . . [t]hese arguments 13 and the cited authority fail to demonstrate that the state has unequivocally waived sovereign 14 immunity in the present case.”); Nehara v. California, 10-cv-491-OWW-SMS, 2010 U.S. Dist. 15 LEXIS 71789, 2010 WL 2822850, at *5 (E.D. Cal. July 16, 2010) (finding that Cal. Gov’t Code 16 § 815.2 does not constitute a waiver of sovereign immunity and noting that “[i]t is unclear how a 17 statute allowing vicarious tort liability—in defined circumstances—amounts to a waiver of 18 sovereign immunity for common law claims”). Suits for injunctive relief brought against the state 19 which arise exclusively under state law are also barred by the Eleventh Amendment. See 20 Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106 (1984); see also Franceschi v. 21 Schwartz, 57 F.3d 828, 831 (9th Cir. 1995) (“The Eleventh Amendment bars suits which seek 22 either damages or injunctive relief against a state, an ‘arm of the state,’ its instrumentalities, or its 23 agencies.”).1 24 1 The court notes that plaintiff also asserts a conclusory claim against Kernan under the 25 Bane Act, California Civil Code § 52.1. “In relevant part, § 52.1 provides a cause of action for 26 interference or attempted interference 'by threat, intimidation, or coercion' with the 'exercise or enjoyment' of rights under the federal Constitution.” Rodriguez v. Cty. of Los Angeles, 891 F.3d 27 776, 799 (9th Cir. 2018). Here, plaintiff alleges that defendants, including Kernan, interfered with his access to courts by threatening violence against him if he continued to seek his legal 28 files. ECF No. 47 at 9. But the complaint makes no explicit allegation that Kernan had any Sef OVE OING INI VRAD MUO Sor POO VS te TP OY VI
1 Finally, with respect to the city of Vacaville, it is entirely unclear to the court how this 2 || entity was in any way responsible for the alleged violations of plaintiff’s rights. Thus, it will also 3 || recommend dismissal of this defendant. 4 Conclusion 5 Based on the foregoing, IT IS HEREBY ORDERED that the claims against defendants 6 || Ortiz, Smith, and Reddy contained the Fifth Amended complaint shall proceed past screening and 7 || those defendants shall file a responsive pleading within the time allotted by the Federal Rules of 8 || Civil Procedure. 9 Further, it is HEREBY RECOMMENDED that plaintiffs claims against defendants 10 || Kernan and City of Vacaville be DISMISSED for failure to state a claim upon which relief may 11 | be granted. 12 These findings and recommendations are submitted to the United States District Judge 13 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 14 | after being served with these findings and recommendations, any party may file written 15 || objections with the court and serve a copy on all parties. Such a document should be captioned 16 | “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 17 || within the specified time may waive the right to appeal the District Court’s order. Turner v. 18 || Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 19 | DATED: September 16, 2020. tid, PDEA
UNITED STATES MAGISTRATE JUDGE
23 24 25 26 27 || affirmative involvement with, or knowledge of, the injection plaintiff was given. Instead, as noted above, it alleges only that he was responsible for a policy plaintiff disagrees with. Thus, 28 || the court concludes that no cognizable Bane Act claim may proceed against Kernan.