1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KEENAN WILKINS, No. 2:19-cv-01469-JAM-CKD P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 CONNIE GIPSON, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights 18 action filed pursuant to 42 U.S.C. § 1983. Currently pending before the court is defendants’ 19 partial motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil 20 Procedure. ECF No. 54. Defendants’ motion is limited to the claims against defendants Gipson 21 and Diaz.1 ECF No. 54. The motion has been fully briefed by the parties. ECF Nos. 55-58. For 22 the reasons explained herein, the court recommends granting defendants’ motion in part and 23 denying it, in part. 24 I. Factual and Procedural History 25 Plaintiff is a mentally ill state prisoner who has historically obtained recommendations to 26 be single celled. The instant lawsuit was initiated once his single cell status was removed. In his 27 1 As a result, the court limits its discussion to only these two defendants. 28 1 second amended complaint, plaintiff alleges that defendant Gipson, the Director of Adult 2 Institutions at CDCR, and defendant Diaz, the Secretary of the CDCR, failed to implement and 3 properly train staff on adequate screening procedures for double celling inmates in deliberate 4 indifference to their right to safety. ECF No. 22 at 3. More specifically, in claim three, plaintiff 5 alleges that these defendants permitted the statewide practice of double celling mentally ill 6 inmates together resulting in an excessive risk to their health and safety. Plaintiff attached a 7 Memorandum from the Secretary of the CDCR dated January 19, 2016 describing the procedure 8 for obtaining single cell status in order to maintain “the safety and security of all involved.” ECF 9 No. 22 at 25. Plaintiff alleges in his complaint that defendants Gipson and Diaz failed to 10 implement or train subordinates on this policy. 11 On December 17, 2020, the court screened plaintiff’s second amended complaint and 12 determined that service was appropriate on the “Monell2 claims for failing to implement and train 13 staff on screening procedures for double-celling inmates, especially those with mental disorders, 14 against defendants Gipson and Diaz in claims two and three of the second amended complaint.” 15 ECF No. 23 at 1. 16 II. Motion for Judgment on the Pleadings 17 Defendants Gipson and Diaz filed their motion for judgment on the pleadings on 18 December 14, 2021 seeking judgment in their favor on the claims against them for four separate 19 reasons. ECF No. 54. First, these defendants assert that Monell liability cannot be premised on 20 individual liability for non-municipal defendants such as Gipson and Diaz who are employees of 21 a state agency. ECF No. 54 at 10. Second, even construing the allegations as deliberate 22 indifference to plaintiff’s right to health and safety in violation of the Eighth Amendment, 23 defendants Gipson and Diaz cannot be liable merely based on their supervisory capacity. ECF 24 No. 54 at 11-14. Next, defendants contend that plaintiff failed to allege any injury in fact to him 25 resulting from defendants’ conduct. Id. at 14-15. Lastly, defendants assert that they are entitled 26 to qualified immunity for damages in their individual capacities. Id. at 15-17. 27
28 2 Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). 1 In opposition to the motion, plaintiff asserts that even in the absence of a valid Monell 2 claim, plaintiff still states a valid claim for prospective injunctive relief against defendants Gipson 3 and Diaz based on their failure to implement adequate screening practices for double celling.3 4 ECF No. 55 at 4-5. With respect to his lack of an actual injury caused by the double celling 5 practices, plaintiff contends that he is not required to wait until he is physically harmed before 6 bringing suit to challenge a specific policy. ECF No. 55 at 9. Concerning the qualified immunity 7 argument, plaintiff argues that defendants are liable for damages in their individual capacities. 8 ECF No. 55 at 10. 9 By way of reply to the Eighth Amendment allegations, defendants Gipson and Diaz point 10 out that plaintiff’s “obvious goal in bringing this action is to obtain prospective injunctive relief, 11 to wit, assignment to single-cell status.” ECF No. 56 at 4. Defendants challenge any ongoing 12 violation of federal law that would support such relief because plaintiff has not demonstrated any 13 injury in fact. Id. 14 Plaintiff filed a request to file a sur-reply after receiving defendants’ reply. ECF No. 57. 15 Although the Local Rules do not permit a sur-reply, the court will grant plaintiff’s request in this 16 one instance because it clarifies the issues before the court. See Local Rule 230(l). Plaintiff 17 makes clear in his sur-reply that the court construed his claims against Diaz and Gipson as Monell 18 claims. ECF No. 58 at 2. However, plaintiff emphasizes that his claims against these defendants 19 “are premised under [the] Eighth Amendment failure to act/train.” ECF No. 58 at 2. 20 III. Legal Standards 21 Pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, a party may file a motion 22 for judgment on the pleadings “[a]fter the pleadings are closed-but early enough not to delay 23 trial.” Judgment on the pleadings is appropriate “when there are no issues of material fact, and 24 the moving party is entitled to judgment as a matter of law.” 3550 Stevens Creek Assocs. v. 25 Barclays Bank, 915 F.2d 1355, 1357 (9th Cir. 1990). The standard applied on a Rule 12(c) 26 motion is essentially the same as that applied on Rule 12(b)(6) motions: i.e., judgment on the 27 3 Plaintiff acknowledges that defendant Diaz is no longer the CDCR Secretary and requests that 28 the court substitute Kathleen Allison. ECF No. 55 at 2. 1 pleadings is appropriate when, even if all material facts in the pleading under attack are true, the 2 moving party is entitled to judgment as a matter of law. Hal Roach Studios, Inc. v. Richard 3 Feiner & Co., Inc., 896 F.2d 1542, 1550 (9th Cir. 1990). In considering a motion for judgment on 4 the pleadings, the court reviews the pleadings only. The complaint must contain more than 5 “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause 6 of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, 7 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 8 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim 9 upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A 10 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 11 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 12 at 678. The burden is on the moving party to demonstrate that no material issue of fact remains 13 to be resolved and that the moving party is entitled to judgment as a matter of law.
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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 KEENAN WILKINS, No. 2:19-cv-01469-JAM-CKD P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 CONNIE GIPSON, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights 18 action filed pursuant to 42 U.S.C. § 1983. Currently pending before the court is defendants’ 19 partial motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil 20 Procedure. ECF No. 54. Defendants’ motion is limited to the claims against defendants Gipson 21 and Diaz.1 ECF No. 54. The motion has been fully briefed by the parties. ECF Nos. 55-58. For 22 the reasons explained herein, the court recommends granting defendants’ motion in part and 23 denying it, in part. 24 I. Factual and Procedural History 25 Plaintiff is a mentally ill state prisoner who has historically obtained recommendations to 26 be single celled. The instant lawsuit was initiated once his single cell status was removed. In his 27 1 As a result, the court limits its discussion to only these two defendants. 28 1 second amended complaint, plaintiff alleges that defendant Gipson, the Director of Adult 2 Institutions at CDCR, and defendant Diaz, the Secretary of the CDCR, failed to implement and 3 properly train staff on adequate screening procedures for double celling inmates in deliberate 4 indifference to their right to safety. ECF No. 22 at 3. More specifically, in claim three, plaintiff 5 alleges that these defendants permitted the statewide practice of double celling mentally ill 6 inmates together resulting in an excessive risk to their health and safety. Plaintiff attached a 7 Memorandum from the Secretary of the CDCR dated January 19, 2016 describing the procedure 8 for obtaining single cell status in order to maintain “the safety and security of all involved.” ECF 9 No. 22 at 25. Plaintiff alleges in his complaint that defendants Gipson and Diaz failed to 10 implement or train subordinates on this policy. 11 On December 17, 2020, the court screened plaintiff’s second amended complaint and 12 determined that service was appropriate on the “Monell2 claims for failing to implement and train 13 staff on screening procedures for double-celling inmates, especially those with mental disorders, 14 against defendants Gipson and Diaz in claims two and three of the second amended complaint.” 15 ECF No. 23 at 1. 16 II. Motion for Judgment on the Pleadings 17 Defendants Gipson and Diaz filed their motion for judgment on the pleadings on 18 December 14, 2021 seeking judgment in their favor on the claims against them for four separate 19 reasons. ECF No. 54. First, these defendants assert that Monell liability cannot be premised on 20 individual liability for non-municipal defendants such as Gipson and Diaz who are employees of 21 a state agency. ECF No. 54 at 10. Second, even construing the allegations as deliberate 22 indifference to plaintiff’s right to health and safety in violation of the Eighth Amendment, 23 defendants Gipson and Diaz cannot be liable merely based on their supervisory capacity. ECF 24 No. 54 at 11-14. Next, defendants contend that plaintiff failed to allege any injury in fact to him 25 resulting from defendants’ conduct. Id. at 14-15. Lastly, defendants assert that they are entitled 26 to qualified immunity for damages in their individual capacities. Id. at 15-17. 27
28 2 Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). 1 In opposition to the motion, plaintiff asserts that even in the absence of a valid Monell 2 claim, plaintiff still states a valid claim for prospective injunctive relief against defendants Gipson 3 and Diaz based on their failure to implement adequate screening practices for double celling.3 4 ECF No. 55 at 4-5. With respect to his lack of an actual injury caused by the double celling 5 practices, plaintiff contends that he is not required to wait until he is physically harmed before 6 bringing suit to challenge a specific policy. ECF No. 55 at 9. Concerning the qualified immunity 7 argument, plaintiff argues that defendants are liable for damages in their individual capacities. 8 ECF No. 55 at 10. 9 By way of reply to the Eighth Amendment allegations, defendants Gipson and Diaz point 10 out that plaintiff’s “obvious goal in bringing this action is to obtain prospective injunctive relief, 11 to wit, assignment to single-cell status.” ECF No. 56 at 4. Defendants challenge any ongoing 12 violation of federal law that would support such relief because plaintiff has not demonstrated any 13 injury in fact. Id. 14 Plaintiff filed a request to file a sur-reply after receiving defendants’ reply. ECF No. 57. 15 Although the Local Rules do not permit a sur-reply, the court will grant plaintiff’s request in this 16 one instance because it clarifies the issues before the court. See Local Rule 230(l). Plaintiff 17 makes clear in his sur-reply that the court construed his claims against Diaz and Gipson as Monell 18 claims. ECF No. 58 at 2. However, plaintiff emphasizes that his claims against these defendants 19 “are premised under [the] Eighth Amendment failure to act/train.” ECF No. 58 at 2. 20 III. Legal Standards 21 Pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, a party may file a motion 22 for judgment on the pleadings “[a]fter the pleadings are closed-but early enough not to delay 23 trial.” Judgment on the pleadings is appropriate “when there are no issues of material fact, and 24 the moving party is entitled to judgment as a matter of law.” 3550 Stevens Creek Assocs. v. 25 Barclays Bank, 915 F.2d 1355, 1357 (9th Cir. 1990). The standard applied on a Rule 12(c) 26 motion is essentially the same as that applied on Rule 12(b)(6) motions: i.e., judgment on the 27 3 Plaintiff acknowledges that defendant Diaz is no longer the CDCR Secretary and requests that 28 the court substitute Kathleen Allison. ECF No. 55 at 2. 1 pleadings is appropriate when, even if all material facts in the pleading under attack are true, the 2 moving party is entitled to judgment as a matter of law. Hal Roach Studios, Inc. v. Richard 3 Feiner & Co., Inc., 896 F.2d 1542, 1550 (9th Cir. 1990). In considering a motion for judgment on 4 the pleadings, the court reviews the pleadings only. The complaint must contain more than 5 “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause 6 of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, 7 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 8 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim 9 upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A 10 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 11 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 12 at 678. The burden is on the moving party to demonstrate that no material issue of fact remains 13 to be resolved and that the moving party is entitled to judgment as a matter of law. See Hal 14 Roach Studios, 896 F.2d at 1550. 15 IV. Analysis 16 The parties appear to agree, and the court acknowledges, that it improperly labeled 17 plaintiff’s claims against defendants Diaz and Gipson as Monell claims in the screening order. 18 Monell liability does not attach as a matter of law to state officials. See Guillory v. Orange 19 Cty.,731 F.2d 1379, 1382 (9th Cir. 1984) (emphasizing that Monell does not concern liability of 20 individuals acting under color of state law.”). Accordingly, the undersigned recommends 21 granting defendants’ motion for judgment on the claims identified as Monell claims against 22 defendants Diaz and Gipson. See Balistreri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 23 1988) (recognizing that judgment on the pleadings is appropriate when a claim is not supported 24 by a cognizable legal theory). 25 Having corrected the error in the screening order, the court now turns to the real issue 26 before the court concerning whether plaintiff’s second amended complaint adequately alleges 27 Eighth Amendment deliberate indifference to plaintiff’s health and safety claims against Diaz and 28 Gipson. To the extent that defendants assert that the Eighth Amendment claims against them are 1 deficient because they are based on supervisory liability, they are mistaken. “Supervisory 2 liability exists even without overt personal participation in the offensive act if supervisory 3 officials implement a policy so deficient that the policy ‘itself is a repudiation of constitutional 4 rights’ and is ‘the moving force of the constitutional violation.’” Hansen v. Black, 885 F.2d 642, 5 646 (9th Cir. 1989) (quoting Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir. 1987)). Plaintiff’s 6 second amended complaint adequately identified the specific policies that were the moving force 7 for the violation of his Eighth Amendment right to health and safety. Moreover, an actual injury 8 is not required to allege an Eighth Amendment deliberate indifference claim. “[A]n Eighth 9 Amendment claimant need not show that a prison official acted or failed to act believing that 10 harm would actually befall an inmate; it is enough that the official acted or failed to act despite 11 his [or her] knowledge of a substantial risk of serious harm.” Farmer v. Brennan, 511 U.S. 825, 12 842 (1994). Plaintiff correctly asserts that he does not have to wait until he is physically injured 13 to raise an Eighth Amendment violation. See Helling v. McKinney, 509 U.S. 25, 33-34 (1993) 14 (recognizing that a deliberate indifference claim does not require a prisoner to wait until a tragic 15 event such as an actual assault before obtaining relief.). For all these reasons, the undersigned 16 recommends denying defendants’ motion for judgment on the Eighth Amendment deliberate 17 indifference claims alleged in plaintiff’s second amended complaint. 18 Lastly, defendants assert that they are entitled to judgment on the pleadings based on 19 qualified immunity. In light of the procedural posture of this case, defendants are asking the 20 court to resolve the complex issue of qualified immunity based on nothing more than the bare 21 allegations of a pro se complaint. The Ninth Circuit pointed out the folly of such an exercise.
22 The confluence of two well-intentioned doctrines, notice pleading 23 and qualified immunity, give rise to this exercise in legal decisionmaking based on facts both hypothetical and vague. On one 24 hand, the federal courts may not dismiss a complaint unless ‘it is clear that no relief can be granted under any set of facts that could be 25 proved consistent with the allegations….’ On the other hand, government officials are entitled to raise the qualified immunity 26 defense immediately, on a motion to dismiss the complaint, to protect against the burdens of discovery and other pre-trial procedures. The 27 qualified immunity issue, in turn, cannot be resolved without first deciding the scope of the constitutional rights at stake. The 28 unintended consequence of this confluence of procedural doctrines 1 is that the courts may be called upon to decide far-reaching constitutional questions on a nonexistent factual record, even where, 2 as the government defendants contend and as may be the case here, discovery would readily reveal the plaintiff’s clams to be factually 3 baseless. 4 Wong v. United States, 373 F.3d 952, 956–57 (9th Cir. 2004) (internal citations omitted). The 5 court is of the view that it does not have sufficient information before it to rule on the issue of 6 qualified immunity. Accordingly, the undersigned finds the issue of qualified immunity 7 premature and recommends denying defendants’ motion for judgment without prejudice to 8 renewal at a later stage of the proceedings. 9 V. Plain Language Summary for Pro Se Party 10 The following information is meant to explain this order in plain English and is not 11 intended as legal advice. 12 After having reviewed defendants’ motion for judgment on the pleadings and your second 13 amended complaint, the court finds that it incorrectly labeled your claims against Diaz and 14 Gipson as Monell claims. The court is recommending that defendants’ motion be granted on this 15 basis, but denied on the remaining grounds. It is therefore recommended that your Eighth 16 Amendment deliberate indifference claims against defendants Diaz and Gipson be allowed to 17 proceed. 18 If you disagree with this recommendation, you have 14 days to explain why it is not 19 correct. Label your explanation as “Objections to Magistrate Judge’s Findings and 20 Recommendations.” Your case will then be reviewed by the district court judge assigned to your 21 case who will make the final decision pertaining to the claims against defendants Diaz and 22 Gipson. 23 Accordingly, IT IS HEREBY ORDERED that Kathleen Allison is substituted for 24 defendant Ralph Diaz in accordance with Rule 25(d) of the Federal Rules of Civil Procedure. 25 IT IS FURTHER RECOMMENDED that defendants’ motion for judgment on the 26 pleadings (ECF No. 54) be granted in part and denied in part. To the extent that the court’s 27 screening order of December 17, 2020 references Monell, it is recommended that this be stricken 28 and that this case proceed on the allegations in the second amended complaint that defendants 1 || Diaz* and Gipson were deliberately indifferent to plaintiff's rights to health and safety in 2 || violation of the Eighth Amendment. With respect to defendants’ qualified immunity argument, it 3 || is recommended that the motion be denied without prejudice to renewal at a later stage of the 4 || proceedings. 5 These findings and recommendations are submitted to the United States District Judge 6 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 7 || after being served with these findings and recommendations, any party may file written 8 || objections with the court and serve a copy on all parties. Such a document should be captioned 9 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 10 || objections shall be served and filed within fourteen days after service of the objections. The 11 || parties are advised that failure to file objections within the specified time may waive the right to 12 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 13 | Dated: April 12, 2022 / ae □□ / a Ly a 4 CAROLYN K DELANEY 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 12/wilk1469.m4judgment.docx 22 23 24 25 26 27 28 | 4 Hereinafter to be substituted by Kathleen Allison.