1 2 3 4 5 6 7 10 11 JOSHUA ROBERTSON, Case No. 1:24-cv-00009-BAM (PC) 12 Plaintiff, ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT JUDGE TO 13 v. ACTION
14 MERCED COUNTY, et al., FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF CERTAIN 15 Defendant. CLAIMS AND DEFENDANTS
16 (ECF No. 13) 17 FOURTEEN (14) DAY DEADLINE 18 19 Plaintiff Joshua Robertson (“Plaintiff”) is a former pretrial detainee, now civil detainee, 20 appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. 21 Before the Court could screen Plaintiff’s complaint, Plaintiff filed an amended complaint. 22 The Court screened Plaintiff’s first amended complaint, and Plaintiff was granted leave to amend. 23 Plaintiff’s second amended complaint is now before the Court for screening. (ECF No. 8.) 24 I. Screening Requirement and Standard 25 The Court is required to screen complaints brought by prisoners seeking relief against a 26 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. 27 § 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous 28 or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary 1 relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b). 2 A complaint must contain “a short and plain statement of the claim showing that the 3 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 4 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 5 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 6 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as 7 true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 8 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 9 To survive screening, Plaintiff’s claims must be facially plausible, which requires 10 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable 11 for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret 12 Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully 13 is not sufficient, and mere consistency with liability falls short of satisfying the plausibility 14 standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969. 15 II. Plaintiff’s Allegations 16 Plaintiff is currently housed at Napa State Hospital in Napa, California. Plaintiff alleges 17 the events in the second amended complaint occurred while Plaintiff was housed as a pretrial 18 detainee at the John Latorraca Correctional Center in Merced County, California. Plaintiff names 19 as defendants: (1) Merced County, (2) Sergeant Sandoval, (3) Deputy Gutierrez, (4) Deputy Reid, 20 (5) Jane Doe, (6) Miguel Doe, (7) Johnathan Doe, and (8) John Latorraca Correctional Center. 21 On about September 4, 2023, at 10:00 a.m., Plaintiff was “rolled up” (removed) from his 22 dormitory and placed in a temporary holding cell in the “bubble” at John Latorraca Correctional 23 Center. Many of the pretrial detainees, including Plaintiff are “rolled up” from the dorms due to 24 serious psychiatric conditions. They cannot house in drug infested and violent open dorms at 25 John Latorraca Correctional Center. The temporary cell Plaintiff was in was only 7X15 and not 26 designed for long term housing. It contains a toilette, sink, and a thin bench. 27 Plaintiff alleges that the climate control system has a history of being mis-calibrated, 28 rendering the room excessively cold. The toilette has a history of being clogged with debris, 1 making it unusable. Plaintiff has seen Sergeant Sandoval hold pretrial detainees, including 2 plaintiff, in the temporary holding cell for days, to coerce pretrial detainees into housing in the 3 dorms. 4 Defendant Sandoval has said to Plaintiff during previous “roll ups” that “I’m sending you 5 to dorm X.” When Plaintiff implored Sandoval to put him in a 2-man cell, Sandoval said that 6 Plaintiff would stay in the holding cell. 7 On September 4, 2023, Plaintiff noticed new paint on the walls in his temporary holding 8 cell. The other pretrial detainees told Plaintiff that due to being left in the holding cell with no 9 indication when they were going to be release, mentally ill detainees decompensate and smear 10 their own feces on the wall. Plaintiff also noticed that the temporary hold cell was excessively 11 cold. Plaintiff was wearing only a short sleeve t-shirt and shorts with socks but no shoes. 12 Plaintiff was shivering with this arms and legs folded to keep warm. Approximately 12 hours 13 later, Plaintiff was given a mattress but, on information and belief, no blanket. He and other 14 pretrial detainees were forced to place their mattresses on a thin bench, forcing some pretrial 15 detainees to sleep on the filthy floor. Plaintiff witnessed other pretrial detainees attempt to use the 16 toilette but it wasn’t flushing. Plaintiff and other pretrial detainees were forced to urinate and 17 defecate in a clogged toilette, leaving foul order in the air from the stagnant and floating human 18 waste. 19 Plaintiff witnessed another pretrial detainee press the intercom multiple time to inform the 20 “bubble” work that the toilette was broken to no avail. On September 5, 2023, the other pretrial 21 detainees agreed to house in dorms, leaving Plaintiff alone in the temporary holding cell. 22 That morning at about 7 a.m., Defendant Gutierrez opened the cell door and told Plaintiff 23 “I need your mattress.” Plaintiff asked to keep the mattress, but Gutierrez said no. Defendant 24 Gutierrez then took Plaintiff mattress and left him without a blanket to shiver in a t-shirt, shorts 25 and socks with no shoes. “Upon information and belief” Defendant Sandoval ordered Gutierrez to 26 confiscate the mattress in order to render the living conditions inhumane for the purpose of 27 coercing Plaintiff to house in a dorm. 28 Plaintiff had to lay down on a thin hard bench that was not wide enough to accommodate 1 the width of his entire body. That morning, Plaintiff had to use the bathroom. Plaintiff pushed 2 the intercom button at least six times asked the female “bubble” worker to call maintenance and 3 fix the toilette because it was flooded and human waste was on the floor. The bubble officer said 4 that she would tell a deputy. Several hours later, Defendant Reid came to the cell and asked 5 Plaintiff if he wanted to plunge the toilette. Plaintiff said he wanted maintenance or a pod worker 6 to plunge the toilette because Plaintiff did not want to be exposed to the danger or human waste 7 on the floor without protective attire. Defendant Reid said a plunger is the only option and left 8 the plunger outside of the cell door. Plaintiff changed his mind after realizing that maintenance 9 was not going to come fix the toilette, and asked the “bubble” worker to tell Reid to give him the 10 plunger. Reid never came back and the plunger sat outside of the cell. Plaintiff pressed the 11 intercom 3 more times and the bubble officer stopped responding to distress calls. Plaintiff tried 12 to flush the toilette and it began to overflow on the ground. 13 Plaintiff was forced to relieve himself of the floor due to the broken toilette with human 14 waste over flowing on the floor with urine blocking is path to the toilette. Plaintiff tried to call 15 the deputies when he heard them talking in the hallway because he could not see them, but no one 16 responded. 17 When Defendant Gutierrez arrived, Plaintiff told him that the toilette was not working and 18 that there was human waste on the floor. Gutierrez looked at the human waste, smiled and 19 walked away. , 20 Defendant Sandoval came to Plaintiff’s cell, and while Plaintiff does not recall if he told 21 Sandoval about the toilet, it was obvious to a reasonable person because the plunger was in the 22 hallway where Sandoval was standing, you could see the fecal matter on the floor by Plaintiff’s 23 fee, and you could see fecal matter on the window through which Sandoval had to look to see 24 Plaintiff. 25 Sandoval was aware the Plaintiff had a mental health condition because Johnathan DOE, 26 and Miguel Doe, were mental health workers who responded to pretrial detainees with mental 27 health conditions. They both came with Sandoval to Plaintiff‘s temporary holding cell. Both 28 Johnathan Doe, and on information and belief, Miguel Doe both asked Plaintiff he was suicidal. 1 Plaintiff did not respond because he “shut down” due to mental illness and they threatened him to 2 put him back in a “safety cell” if Plaintiff did not respond. A “safety cell” at John Latorraca 3 Correctional Center is a dark, cold, dungeoneque chamber without toilette paper, blanket or 4 mattress. Plaintiff was terrified of going back into a safety cell and both Johnathan Doe and 5 Miguel Doe knew that Plaintiff was terrified because weeks before, he had asked them to get out 6 when in was in a safety cell. They used the safety threat as a coercive threat when he was having 7 a psychiatric emergency. 8 Defendants Sandoval, Johnathan Doe, and on information and belief, Miguel Doe, left 9 Plaintiff in a temporary holding cell with inhumane conditions even after they know Plaintiff was 10 having a psychiatric emergency to coerce him into housing in a dorm in retaliation for Plaintiff 11 not responding to his questions. They left Plaintiff in the filthy contaminated, cold temporary 12 holding cell covered in feces and urine when they should have removed him. Twelve hours after 13 Defendant Gutierrez took Plaintiff’s mattress and left him with no banket in his temporary 14 holding cell, he was moved to another holding cell and forced to lay on the filthy floor. 15 Plaintiff then saw pod workers in full hazmat uniforms with a plunger, mop, bucket, and 16 sanitizer go to the temporary holding cell to clean. Defendants Reid, Gutierrez, and Sandoval all 17 had the authority to open Plaintiff’s temporary holding cell door and move him hours earlier, 18 because they did so without seeking permission from a lieutenant. 19 Plaintiff alleges claims based on the Fourteenth Amendment for violation of Due Process 20 for leaving Plaintiff in the feces cell and for denial of medical treatment when Plaintiff was 21 unresponsive to the mental health workers due to be abandoned in the cell. 22 Plaintiff alleges that Merced County and John Latorraca correctional facility violated 23 Plaintiff’s Due Process rights by having a policy of leaving mentally ill pretrial detainees in 24 unsanitary, excessively cold, temporary holding cells with no mattress or blankets, insufficient 25 clothing and broken toilettes. 26 Plaintiff also asserts state law claims of Negligence. 27 As remedies, Plaintiff seeks declaratory relief and compensatory and punitive damages. 28 /// 1 III. Discussion 2 A. Standing to Sue on Behalf of Other Plaintiffs 3 Insofar as Plaintiff is attempting to assert claims on behalf of other, he may not do so. 4 Plaintiff may only represent his own legal interests; he may not represent the legal interests of 5 other inmates or other individuals. “A litigant appearing in propria persona has no authority to 6 represent anyone other than himself” in a civil rights action. Russell v. United States, 308 F.2d 78, 7 79 (9th Cir. 1962); see also Weaver v. Wilcox, 650 F.2d 22, 27 (3rd Cir. 1981) (“[A]n inmate does 8 not have standing to sue on behalf of his fellow prisoners. Rather, the prisoner must allege a 9 personal loss and seek to vindicate a deprivation of his own constitutional rights.” (citations 10 omitted).). “Although a non-attorney may appear in propria persona in his own behalf, that 11 privilege is personal to him. He has no authority to appear as an attorney for others than himself.” 12 C.E. Pope Equity Trust v. U.S., 818 F.2d 696, 697 (9th Cir. 1987) (citations omitted). 13 The Court has attempted to isolate, and rely upon, the factual allegations related to 14 Plaintiff and not those allegations related to other persons. 15 B. Merced County 16 Plaintiff names Merced County and John Latorraca Correctional Center as defendants. 17 Bringing a section 1983 claim against a municipal police department is essentially bringing the 18 claim against the municipality. See Annan-Yartey v. Honolulu Police Dep't, 351 F. App'x 243, 19 246 (9th Cir. 2009). Such a claim is considered a Monell claim. See Monell v. Dep't of Soc. Servs. 20 of City of N.Y., 436 U.S. 658 (1978). Local governments are “persons” subject to liability under 21 42 U.S.C. § 1983 where official policy or custom causes a constitutional tort, see Monell, 436 22 U.S. at 690; however, a city or county may not be held vicariously liable for the unconstitutional 23 acts of its employees under the theory of respondeat superior, see Board of Cty. Comm’rs. of 24 Bryan Cty. v. Brown, 520 U.S. 397, 403 (1997); Monell, 436 U.S. at 691; Fuller v. City of 25 Oakland, 47 F.3d 1522, 1534 (9th Cir. 1995). Local governing bodies therefore may be sued 26 directly under § 1983 for monetary, declaratory or injunctive relief for the violation of federal 27 rights. See Monell, 436 U.S. at 690. They are absolutely immune from liability for punitive 28 damages under § 1983, however. See City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 1 (1981). 2 To impose municipal liability under § 1983 for a violation of constitutional rights 3 resulting from governmental inaction or omission, a plaintiff must show: “(1) that he possessed a 4 constitutional right of which he or she was deprived; (2) that the municipality had a policy; (3) 5 that this policy amounts to deliberate indifference to the plaintiff’s constitutional rights; and (4) 6 that the policy is the moving force behind the constitutional violation.” Oviatt By and Through 7 Waugh v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992) (quoting City of Canton v. Harris, 489 8 U.S. 378, 389 (1989) (internal quotation marks omitted). 9 A local governmental entity may be liable if it has a “policy of inaction and such inaction 10 amounts to a failure to protect constitutional rights.” Lee v. City of Los Angeles, 250 F.3d 668, 11 681 (9th Cir. 2001) (quoting Oviatt, 954 F.2d at 1474). The custom or policy of inaction must be 12 the result of a conscious or deliberate choice to follow a course of action made from among 13 various alternatives by the official or officials responsible for establishing final policy with 14 respect to the subject matter in question. City of Canton, 489 U.S. at 389; Oviatt, 954 F.2d at 15 1477 (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 483-84 (1986) (plurality opinion)). 16 Plaintiff alleges that Merced County and John Latorraca Correctional Center violated 17 Plaintiff’s Due Process Rights because they have a policy which allows John Latorraca 18 Correctional Center to leave mentally ill pretrial detainees in an unsanitary, excessively cold, 19 temporarily holding cell, with no mattress or blankets, insufficient clothing and a broken toilette 20 because of a policy of not having sufficient administrative safeguards to prevent such conditions. 21 Liberally construing the allegations, Plaintiff states a cognizable claim. 22 C. Conditions of Confinement 23 “[P]re-adjudication detainees retain greater liberty protections than convicted ones.” Jones 24 v. Blanas, 393 F.3d 918, 932 (9th Cir. 2004) (citations omitted). As a pretrial detainee, Plaintiff is 25 protected from conditions of confinement which amount to punishment. Bell v. Wolfish, 441 U.S. 26 520, 535–36 (1979); Simmons v. Navajo Cty., Ariz., 609 F.3d 1011, 1017–18 (9th Cir. 2010). 27 It is the Due Process Clause of the Fourteenth Amendment, not the Eighth Amendment, 28 which governs pretrial detainees. Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1067–68 (9th Cir. 1 2016). In order to state a cognizable claim for unconstitutional conditions of confinement related 2 to a risk to safety or health, a plaintiff must specifically plead as follows: (1) the defendant made 3 an intentional decision with respect to the conditions under which the plaintiff was confined; (2) 4 those conditions put the plaintiff at substantial risk of suffering serious harm; (3) the defendant 5 did not take reasonable measures to abate that risk, even though a reasonable officer in the 6 circumstances would have appreciated the high degree of risk involved—making the 7 consequences of the defendant's conduct obvious; and (4) by not taking such measures, the 8 defendant caused the plaintiff's injuries. Castro, 833 F.3d at 1071. With respect to the third 9 element, the defendant's conduct must be “objectively unreasonable.” Id. (citing Kingsley v. 10 Hendrickson, 576 U.S. 389 (2015)). 11 Plaintiff alleges he was left in a cold cell, with minimal clothing, with feces on the cell 12 floor for hours. Although conditions of confinement claims brought by pretrial detainees are 13 analyzed under the Due Process Clause of the Fourteenth Amendment rather than under the Cruel 14 and Unusual Punishments Clause of the Eighth Amendment, the Eighth Amendment's deliberate 15 indifference standard sets the minimum standard of care due to pretrial detainees. Oregon 16 Advocacy Center v. Mink, 322 F.3d 1101, 1120 (9th Cir. 2003). “[S]ubjection of a prisoner to lack 17 of sanitation that is severe or prolonged can constitute an infliction of pain within the meaning of 18 the Eighth Amendment.” Anderson v. Cty. of Kern, 45 F.3d 1310, 1314 (9th Cir. 1995); see also 19 Johnson v. Lewis, 217 F.3d 726, 731–32 (9th Cir. 2000); Hoptowit v. Spellman, 753 F.2d 779, 20 783 (9th Cir. 1985). Subjecting “a prisoner to lack of sanitation that is severe or prolonged can 21 constitute an infliction of pain within the meaning of the Eighth Amendment,” Anderson, 45 F.3d 22 at 1314, opinion amended on denial of reh'g, 75 F.3d 448 (9th Cir. 1995). Plaintiff's allegations 23 state both severity and length of a violation. See, e.g., LaReau v. MacDougall, 473 F.2d 974, 978 24 (2d Cir. 1972) (prisoner confined for five days in strip cell with only a pit toilet and without light, 25 a sink, or other washing facilities), cert. denied, 414 U.S. 878 (1973); McBride v. Deer, 240 F.3d 26 1287, 1292 (10th Cir. 2001) (inmate forced to live in a feces-covered cell for three days); McCord 27 v. Maggio, 927 F.2d 844, 848 (5th Cir. 1991) (inmate repeatedly had to live in sewage and foul 28 water and slept on a bare mattress in water contaminated with human feces); cf. Hendon v. Reed, 1 No. 1:05-CV-00790-OWW, 2011 WL 2224720, at *7 (E.D. Cal. June 7, 2011) (finding no Eighth 2 Amendment violation where guards threw Plaintiff's own feces and urine on him, but Plaintiff 3 “immediately removed his clothing and was able to clean the substance off of him”). Plaintiff 4 alleges he was in the cell with feces on the floor. It is unclear how long he was detained in the 5 cell, but lack of sanitation that is severe or prolonged, states a claim. Here, Plaintiff alleges 6 severity of the lack of sanitation. 7 Liberally construing the allegations in the complaint, Plaintiff states a cognizable Due 8 Process violation for conditions of confinement related to the cell sanitation against Defendants 9 Gutierrez, Sandoval, Jonathan Doe, Miguel Doe, Reid, and Jane Doe. 10 Plaintiff also alleges that Defendant Gutierrez removed the bedding from the Plaintiff. Jail 11 deputies have a duty to ensure that pretrial detainees are provided with adequate bedding and that 12 the denial of such necessities is sufficiently serious to violate the Fourteenth Amendment. See 13 Wilson v. Seiter, 501 U.S. 294, 304 (1991) (stating that the Eighth Amendment can be violated by 14 low cell temperatures at night without blankets being issued); Thompson v. City of Los Angeles, 15 885 F.2d 1439, 1448 (9th Cir. 1989) (holding that denying a mattress or bed for two nights 16 violated the Fourteenth Amendment rights of a pretrial detainee), overruled on other grounds by 17 Bull v. City & Cnty. of San Francisco, 595 F.3d 964 (9th Cir. 2010). Liberally construing the 18 allegations, Plaintiff states a cognizable claim against Gutierrez for the removal of the mattress. 19 Plaintiff fails to state a cognizable claims against any defendant for the cold cell. As best 20 the Court can determine, Plaintiff alleges he was housed for about 24 hours in a cold cell. 21 Whether an inmate's exposure to cold temperatures constitutes an Eighth Amendment violation 22 depends on the severity of the cold, the duration of the prisoner's exposure, the presence of an 23 alternative means to warmth (i.e., a blanket or jacket), the efficacy of that alternative, and the 24 presence of ‘other uncomfortable conditions[.]’” Micenheimer v. Soto, No. CV 13-3853-CJC 25 JEM, 2013 WL 5217467, at *5 (C.D. Cal. Sept. 16, 2013); Trujillo v. Sherman, No. 1:16 CV 26 01277 DAD JLTPC, 2017 WL 1549937, at *4 (E.D. Cal. May 1, 2017) (Being subjected to 27 deplorable conditions for a single day does not amount to an objectively extreme deprivation to 28 state a cognizable claim.). This duration fails to state a cognizable claim. Plaintiff alleges he had 1 a mattress for part of the time. 2 D. First Amendment – Retaliation 3 Allegations of retaliation against a prisoner's First Amendment rights to speech or to 4 petition the government may support a section 1983 claim. Silva v. Di Vittorio, 658 F.3d 1090, 5 1104 (9th Cir. 2011); Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985); see also Valandingham 6 v. Bojorquez, 866 F. 2d 1135 (9th Cir. 1989); Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995). 7 “Within the prison context, a viable claim of First Amendment retaliation entails five basic 8 elements: (1) An assertion that a state actor took some adverse action against an inmate (2) 9 because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's 10 exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate 11 correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005); accord Watison v. 12 Carter, 668 F.3d 1108, 1114-15 (9th Cir. 2012); Silva, 658 at 1104; Brodheim v. Cry, 584 F.3d 13 1262, 1269 (9th Cir. 2009). 14 Plaintiff fails to state a cognizable claim against Defendant Sandoval. Plaintiff fails to 15 allege factual support that Sandoval had the authority to authorize Plaintiff's transfer and had 16 Plaintiff placed in the cell/remain in the cell for engaging in protected conduct, that such conduct 17 chilled Plaintiff's exercise of his rights, and the action did not reasonably advance a legitimate 18 correctional goal. Plaintiff’s refusal to be housed in a dorm is not protected conduct. A prisoner 19 does not have a right to a particular classification or housing under the Due Process Clause. See 20 Myron v. Terhune, 476 F.3d 716, 718 (9th Cir. 2007). Plaintiff has failed to cure this deficiency. 21 E. Medical Care 22 A pretrial detainee’s constitutional rights are addressed under the due process clause of the 23 Fourteenth Amendment, not the Eighth Amendment’s prohibition against cruel and unusual 24 punishments. Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1067–68 (9th Cir. 2016), cert. denied 25 sub nom. Los Angeles Cty., Cal. v. Castro, 137 S. Ct. 831, 197 L. Ed. 2d 69 (2017). The elements 26 of a pretrial detainee’s medical care claim against an individual defendant under the due process 27 clause of the Fourteenth Amendment are: (i) the defendant made an intentional decision with 28 respect to the conditions under which the plaintiff was confined; (ii) those conditions put the 1 plaintiff at substantial risk of suffering serious harm; (iii) the defendant did not take reasonable 2 available measures to abate that risk, even though a reasonable official in the circumstances 3 would have appreciated the high degree of risk involved—making the consequences of the 4 defendant’s conduct obvious; and (iv) by not taking such measures, the defendant caused the 5 plaintiff’s injuries. Gordon v. Cty. of Orange, 888 F.3d 1118, 1125 (9th Cir. 2018). “With respect 6 to the third element, the defendant’s conduct must be objectively unreasonable, a test that will 7 necessarily turn on the facts and circumstances of each particular case.” Id. (citations and internal 8 quotations omitted). 9 Plaintiff fails to state a claim against Sandoval, Jonathan Doe, and Miguel Doe for denial 10 of medical care. While Plaintiff alleges he was having a “psychiatric emergency,” he does not 11 identify how these defendants would have known he was in an emergency because Plaintiff 12 alleges he was not responding to their questions and “shut down.” The allegations do not state a 13 purposeful act by any officer or medical staff to not respond to that medical need. It does not 14 describe the circumstances that would establish that a reasonable official in that situation would 15 have appreciated that plaintiff was at substantial risk of suffering serious harm. 16 F. State Law Claim – Negligence 17 Plaintiff alleges a negligence claim. To the extent Plaintiff also alleges violations of 18 California law, Plaintiff is informed that the California Government Claims Act requires that a 19 tort claim against a public entity or its employees be presented to the California Victim 20 Compensation and Government Claims Board no more than six months after the cause of action 21 accrues. Cal. Gov't Code §§ 905.2, 910, 911.2, 945.4, 950–950.2. Presentation of a written claim, 22 and action on or rejection of the claim are conditions precedent to suit. State v. Super. Ct. of 23 Kings Cty. (Bodde), 32 Cal. 4th 1234, 1239 (Cal. 2004); Shirk v. Vista Unified Sch. Dist., 42 Cal. 24 4th 201, 209 (2007). To state a tort claim against a public employee, a plaintiff must allege 25 compliance with the California Tort Claims Act. Cal. Gov't Code § 950.6; Bodde, 32 Cal. 4th at 26 1244. “[F]ailure to allege facts demonstrating or excusing compliance with the requirement 27 subjects a compliant to general demurrer for failure to state a cause of action.” Bodde, 32 Cal.4th 28 at 1239. 1 As Plaintiff has not alleged compliance with the Government Claims Act, he has failed to 2 state a claim under California law. 3 G. Declaratory Relief 4 To the extent Plaintiff's complaint seeks a declaratory judgment, it is unnecessary. “A 5 declaratory judgment, like other forms of equitable relief, should be granted only as a matter of 6 judicial discretion, exercised in the public interest.” Eccles v. Peoples Bank of Lakewood Village, 7 333 U.S. 426, 431 (1948). “Declaratory relief should be denied when it will neither serve a useful 8 purpose in clarifying and settling the legal relations in issue nor terminate the proceedings and 9 afford relief from the uncertainty and controversy faced by the parties.” United States v. 10 Washington, 759 F.2d 1353, 1357 (9th Cir. 1985). If this action reaches trial and the jury returns 11 a verdict in favor of Plaintiff, then that verdict will be a finding that Plaintiff’s constitutional 12 rights were violated. Accordingly, a declaration that any defendant violated Plaintiff’s rights is 13 unnecessary. 14 IV. Conclusion and Recommendation 15 Based on the above, the Court finds that Plaintiff’s complaint states cognizable claims as 16 follows: (1) Due Process violation for conditions of confinement related to the cell sanitation 17 against Defendants Gutierrez, Sandoval, Jonathan Doe, Miguel Doe, Reid, and Jane Doe;1 (2) 18 Due Process violation for conditions of confinement related to removal of the mattress against 19 Defendant Gutierrez, and (3) Monell liability against Merced County and John Latorraca 20 Correctional Center. However, Plaintiff’s complaint fails to state any other cognizable claims for 21 relief against any other defendants. 22 Accordingly, the Clerk of the Court is HEREBY DIRECTED to randomly assign a 23 District Judge to this action. 24 Furthermore, it is HEREBY RECOMMENDED that: 25
1 Plaintiff names several doe defendants. “As a general rule, the use of ‘John Doe’ to identify a 26 defendant is not favored.” Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). Plaintiff is 27 advised that John Doe or Jane Doe defendants (i.e., unknown defendants) cannot be served by the United States Marshal until Plaintiff has identified them as actual individuals and amended his 28 complaint to substitute names for John Doe or Jane Doe. 1 1. This action proceed on Plaintiff’s second amended complaint, filed June 10, 2024 (ECF 2 No. 13), on the following cognizable claims: (1) Due Process violation for conditions of 3 confinement related to the cell sanitation against Defendants Gutierrez, Sandoval, 4 Jonathan Doe, Miguel Doe, Reid, and Jane Doe; (2) Due Process violation for conditions 5 of confinement related to removal of the mattress against Defendant Gutierrez, and (3) 6 Monell liability against Merced County and John Latorraca Correctional Center; and 7 2. All other claims and defendants be dismissed based on Plaintiff’s failure to state claims 8 upon which relief may be granted. 9 These Findings and Recommendations will be submitted to the United States District 10 Judge assigned to the case, as required by 28 U.S.C. § 636(b)(l). Within fourteen (14) days after 11 being served with these Findings and Recommendations, Plaintiff may file written objections 12 with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings 13 and Recommendations.” Plaintiff is advised that the failure to file objections within the specified 14 time may result in the waiver of the “right to challenge the magistrate’s factual findings” on 15 appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 16 F.2d 1391, 1394 (9th Cir. 1991)). 17 IT IS SO ORDERED. 18
19 Dated: June 21, 2024 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 20
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