Schwerdtfeger v. Paramo

• Court: District Court, S.D. California
• Decided: January 4, 2021
• Docket: 3:19-cv-02255
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 MICHAEL JOSEPH Case No.: 19-cv-02255 JLS (JLB) SCHWERDTFEGER, 14 REPORT AND Plaintiff, 15 RECOMMENDATION REGARDING v. DEFENDANT’S MOTION TO 16 DISMISS COMPLAINT PARAMO, et al., 17 Defendants. [ECF No. 9] 18 19 20 Before the Court is a motion to dismiss filed by Defendant R. Buckel (“Defendant”). 21 (ECF No. 9.) Defendant moves to dismiss the complaint filed by Plaintiff Michael Joseph 22 Schwerdtfeger (“Plaintiff”) pursuant to Rule 12(b)(6) of the Federal Rules of Civil 23 Procedure on the ground that the complaint fails to state an Eighth Amendment claim for 24 deliberate indifference under 42 U.S.C. § 1983. (Id. at 1.) Plaintiff filed an opposition 25 (ECF No. 11), and Defendant filed a reply (ECF No. 12). 26 Pursuant to 28 U.S.C. § 636(b) and Civil Rule 72.3 of the Local Rules of Practice 27 for the United States District Court for the Southern District of California, this Report and 28 Recommendation is submitted to United States District Judge Janis L. Sammartino. After 1 a thorough review of the parties’ filings, and for the reasons discussed below, the Court 2 respectfully RECOMMENDS the motion to dismiss be GRANTED with leave to amend. 3 I. BACKGROUND 4 Plaintiff, proceeding pro se and in forma pauperis, is a state prisoner currently 5 incarcerated at the California Health Care Facility in Stockton, California. (See ECF Nos. 6 1 (“Compl.”); 4.) On November 25, 2019, Plaintiff filed a complaint alleging the 7 following: 8 In late 2016, the “E Yard” at R.J. Donovan Correctional Facility (“RJD”) was 9 “toured, inspected, and cleared for occupancy by management staff,” including Defendant, 10 who was the Associate Warden of Business Services. (Compl. at 2–3.) On or about 11 January 27, 2017, Plaintiff was transferred to RJD and assigned to the E Yard, Building 12 24, Dorm 102-3L. (Id. at 3.) At the time of transfer, the dorm doors had no “closing 13 devices” or “inside handles.” (Id.) Plaintiff claims that “[w]e all complained to building 14 staff and [were] told management was looking for funding to install this hardware.” (Id.) 15 On November 25, 2018, the tip of Plaintiff’s left index fingertip—3/8 of an inch— 16 was amputated when he attempted to close a dorm door. (Id. at 3–4.) Plaintiff claims the 17 keypad used to lock and unlock the doors had been installed flush with the door when it 18 should have been an inch back from the door, and the manner in which the keypad was 19 installed created the “perfect shear, which amputated [Plaintiff’s] fingertip.” (Id. at 6.) 20 Plaintiff contends his injury was the result of “nothing less than deliberate 21 indifference” because nearly three months earlier, on September 1, 2018, another E Yard 22 inmate named Tarkington severed the tip of his finger in a similar manner while attempting 23 to close a dorm door. (Id. at 3, 12–13.)1 When Tarkington filed a California Department 24 of Corrections and Rehabilitation (“CDCR”) 602 Inmate Appeal regarding his injury, 25 complaining it was caused by the lack of interior door handles, Defendant partially granted 26

27 1 The Court may consider exhibits attached to the complaint on a motion to 28 1 the appeal at the first level on September 24, 2018, and notified Tarkington that “Plant 2 Operations [was] working with Facilities Management to procure funding for the door 3 handles to be installed.” (Id. at 12–13.) 4 Plaintiff “did not know about inmate Tarkington’s injury until after [his own] 5 occurred.” (Id. at 4.) No warning signs were ever posted. (Id. at 3, 5.) Plaintiff claims 6 that “if warning signs had been posted” or if E Yard had not been “cleared for occupancy 7 until self-closing and[/]or inside door handles were installed,” his injury may have been 8 prevented. (Id. at 4.) 9 Plaintiff filed his own CDCR 602 Inmate Appeal, Log # RJD-E-18-8043, on 10 December 10, 2018, requesting that inside door handles or an automatic door closing 11 device be installed to prevent future injury to himself and other inmates on E Yard. (Id. at 12 16–17.) The appeal was partially granted at the First Level by Defendant and Plaintiff was 13 given the same response as Tarkington: “Plant Operations is working with Facilities 14 Management to procure funding for the door handles to be installed.” (Id. at 19.) In 15 Plaintiff’s second level response, dated March 21, 2019, it was noted that the proposal for 16 door handles to be installed was currently in the “Facilities Planning Construction 17 Management branch, Office of Architect and Engineering for design approval.” (Id. at 21.) 18 In his complaint, Plaintiff alleges that Warden Paramo, Associate Warden R. Buckel, 19 and an unknown CDCR agent who is the Supervisor of Plant Operations violated his Eighth 20 Amendment rights. (Id. at 2–3.) After screening Plaintiff’s complaint pursuant to 21 28 U.S.C. §§ 1915(e)(2) and 1915A, the Court dismissed Warden Paramo and ordered 22 service on Associate Warden R. Buckel. (ECF No. 4.) 23 Defendant now moves to dismiss the complaint pursuant to Federal Rule of Civil 24 Procedure 12(b)(6) for failure to state a claim. (See ECF No. 9.) Plaintiff opposes. (ECF 25 No. 11.)2 26

27 2 In his opposition, Plaintiff argues the Court already ruled on this matter during 28 1 II. LEGAL STANDARD 2 A. Motion to Dismiss for Failure to State a Claim 3 On a motion to dismiss for failure to state a claim, the question is not whether the 4 plaintiff will ultimately prevail at trial, but whether the complaint is sufficient to meet the 5 federal court’s pleading standards as explained in Twombly and Iqbal. Skinner v. Switzer, 6 562 U.S. 521, 529–30 (2011). Federal Rule of Civil Procedure 8 requires only a “short and 7 plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8 8(a)(2); see Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Two tenets underlie 9 Twombly: (1) the reviewing court must accept all factual allegations as true (legal 10 conclusions and threadbare recitations of the cause of action’s elements are not presumed 11 true); and (2) the reviewing court must determine if those factual allegations, taken as true, 12 plausibly suggest entitlement to relief. Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009) 13 (citing Twombly, 550 U.S. at 555–58). Only a complaint that states a plausible claim for 14 relief will survive a motion to dismiss. Iqbal, 556 U.S. at 679 (citing Twombly, 550 U.S. 15 at 556). 16 A complaint must contain more than facts that merely create a suspicion of a legally 17 cognizable cause of action; it must set forth facts that raise the alleged wrongdoing above 18 the speculative level. Twombly, 550 U.S. at 555. A claim is plausible on its face when the 19 factual allegations allow the court to draw the reasonable inference that the defendant is 20 liable for the alleged wrongdoing. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 21 556). The mere possibility of misconduct falls short of meeting this plausibility standard. 22 Id. at 679; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). A 23 complaint alleging facts that are “merely consistent with” a defendant’s liability does not 24 25 26 “the sua sponte screening and dismissal procedure is cumulative of, and not a substitute 27 for, any subsequent Rule 12(b)(6) motion that [a defendant] may choose to bring.” Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D. Cal. 2007). Therefore, surviving screening 28 1 cross the threshold between possibility and plausibility entitling the plaintiff to relief. 2 Moss, 572 F.3d at 969 (quoting Twombly, 550 U.S. at 557). 3 B. Standards Applicable to Pro Se Litigants 4 Pro se complaints are to be construed liberally, particularly in a civil rights case. 5 Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). “[H]owever inartfully pleaded,” Haines 6 v. Kerner, 404 U.S. 519, 520 (1972), pro se complaints can only be dismissed if the plaintiff 7 “can prove no set of facts in support of his claim which would entitle him to relief.” 8 Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001) (citation omitted). Courts must use 9 common sense and reasonable factual inferences when reading pro se complaints. 10 McKinney v. De Bord, 507 F.2d 501, 504 (9th Cir. 1974). However, when construing the 11 plaintiff’s claims liberally, the court “may not supply essential elements of the claim that 12 were not initially pled.” Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 13 (9th Cir. 1982). 14 Before dismissing a pro se complaint for failure to state a claim, the court must give 15 the plaintiff a statement of the complaint’s deficiencies and an opportunity to amend unless 16 it is absolutely clear from the complaint that the deficiencies cannot be overcome with 17 amendment. Karim-Panahi v. L.A. Police Dep’t, 839 F.2d 621, 623–24 (9th Cir. 1988); 18 see also James v. Giles, 221 F.3d 1074, 1077 (9th Cir. 2000). 19 III. DISCUSSION 20 A. Section 1983 Standard 21 “Section 1983 does not create any substantive rights, but is instead a vehicle by 22 which plaintiffs can bring federal constitutional and statutory challenges to actions by state 23 and local officials.” Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006); see also 24 Graham v. Connor, 490 U.S. 386, 393–94 (1989). It provides that: 25 [e]very person who, under color of any statute, ordinance, regulation, custom, 26 or usage, of any State or Territory or the District of Columbia, subjects, or 27 causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or 28 immunities secured by the Constitution and laws, shall be liable to the party 1 injured in an action at law, suit in equity, or other proper proceeding for redress. 2 3 42 U.S.C. § 1983. The purpose of Section 1983 “is to deter state actors from using the 4 badge of their authority to deprive individuals of their federally guaranteed rights.” 5 McDade v. West, 223 F.3d 1135, 1139 (9th Cir. 2000). 6 “To state a claim under [Section] 1983, a plaintiff must allege the violation of a right 7 secured by the Constitution and laws of the United States, and must show that the alleged 8 deprivation was committed by a person acting under color of state law.” West v. Atkins, 9 487 U.S. 42, 48 (1988). Dismissal of a Section 1983 claim “following a Rule 12(b)(6) 10 motion is proper if the complaint is devoid of factual allegations that give rise to a plausible 11 inference of either element.” Naffe v. Frey, 789 F.3d 1030, 1036 (9th Cir. 2015). 12 B. Eighth Amendment Claim 13 1. Legal Standard 14 “The Eighth Amendment’s prohibition against cruel and unusual punishment 15 protects prisoners not only from inhumane methods of punishment but also from inhumane 16 conditions of confinement.” Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006); 17 see also U.S. Const. amend. VIII. Incarcerated persons “have a constitutional right to safe 18 conditions of confinement.” Hoptowit v. Spellman, 753 F.2d 779, 784 (9th Cir. 1985). 19 “This is required because inmates, by reason of their confinement, cannot provide for their 20 own safety.” Id. (citations omitted); see also Morgan, 465 F.3d at 1045 (“Incarceration 21 itself renders prisoners dependent upon their keepers and ‘strip[s] them of virtually every 22 means of self-protection.’” (quoting Farmer v. Brennan, 511 U.S. 825, 833 (1994))). 23 “Not every deviation from ideally safe conditions amounts to a constitutional 24 violation . . . .” Hoptowit, 753 F.2d at 784. “However, the Eighth Amendment entitles 25 inmates in a penal institution to an adequate level of personal safety.” Id.; see also Rhodes 26 v. Chapman, 452 U.S. 337, 347 (1981) (“Conditions [of confinement] must not involve the 27 wanton and unnecessary infliction of pain, nor may they be grossly disproportionate to the 28 severity of the crime warranting imprisonment.”). 1 For an inmate to bring a valid Section 1983 claim against a prison official for a 2 violation of the Eighth Amendment, he must first “objectively show that he was deprived 3 of something ‘sufficiently serious.’” Foster v. Runnels, 554 F.3d 807, 812 (9th Cir. 2009) 4 (quoting Farmer, 511 U.S. at 834). “A deprivation is sufficiently serious when the prison 5 official’s act or omission results ‘in the denial of the minimal civilized measure of life’s 6 necessities.’” Id. (quoting Farmer, 511 U.S. at 834). “The circumstances, nature, and 7 duration of a deprivation of these necessities must be considered in determining whether a 8 constitutional violation has occurred.” Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 9 2000). 10 Next, the inmate must “make a subjective showing that the deprivation occurred with 11 deliberate indifference to the inmate’s health or safety.” Foster, 554 F.3d at 812 (citing 12 Farmer, 511 U.S. at 834). “[A] prison official may be held liable under the Eighth 13 Amendment for denying humane conditions of confinement only if he knows that inmates 14 face a substantial risk of serious harm and disregards that risk by failing to take reasonable 15 measures to abate it.” Farmer, 511 U.S. at 847. The prison official “need not have intended 16 any harm to befall the inmate; ‘it is enough that the official acted or failed to act despite 17 his knowledge of a substantial risk of serious harm.’” Lemire v. Cal. Dep’t of Corr. & 18 Rehab., 726 F.3d 1062, 1074 (9th Cir. 2013) (quoting Farmer, 511 U.S. at 837). 19 2. Analysis 20 a. Sufficiently Serious Deprivation 21 For a claim based on a failure to prevent harm, an “inmate must show that he is 22 incarcerated under conditions posing a substantial risk of serious harm” to establish that 23 the alleged deprivation was objectively, sufficiently serious. Farmer, 511 U.S. at 834. In 24 the Ninth Circuit, a single dangerous condition or defective device, without any other 25 conditions contributing to the threat to an inmate’s safety, does not create an objectively, 26 insufficiently humane condition violative of the Eighth Amendment. Osolinski v. Kane, 27 92 F.3d 934, 938 (9th Cir. 1996); see also Turman v. Borders, No. EDCV-18-1533-PSG 28 (JEM), 2020 WL 3086265, at *4 (C.D. Cal. Mar. 16, 2020) (collecting cases), adopted by 1 2020 WL 3086225 (C.D. Cal. June 10, 2020); cf. Wallace v. Sherman, No. 1:20-CV-00213- 2 EPG (PC), 2020 WL 4193968, at *4 (E.D. Cal. July 21, 2020), adopted by 2020 WL 3 5237603 (E.D. Cal. Sept. 2, 2020) (“In the Ninth Circuit, a slip-and-fall claim is not 4 cognizable unless there are exacerbating conditions.”) (collecting cases). 5 Rather, an inmate asserting an Eighth Amendment claim arising out of a prison 6 safety hazard must show “danger-plus,” i.e., not only the existence of a threat to the 7 inmate’s safety, but also some additional condition exacerbating that threat. Morgan, 465 8 F.3d at 1047 (citing Osolinski, 92 F.3d at 938). An exacerbating condition includes any 9 condition which renders an inmate unable to provide for his own safety in the sense that it 10 precludes him from avoiding the dangerous condition or renders him unable to perceive its 11 defective condition. Osolinski, 92 F.3d at 938 (no exacerbating conditions when inmate 12 was able to see and avoid defective oven door in the family visiting unit which fell off and 13 burned his arm); see also Morgan, 465 F.3d at 1047 (hazard exacerbated when prison 14 official compelled inmate to continue working with dangerously defective equipment); 15 Hoptowit, 753 F.2d at 784 (safety hazards in the prison’s occupational areas were 16 exacerbated by inadequate lighting). 17 Here, Plaintiff was transferred to RJD and assigned to a dorm in E Yard in January 18 2017. (Compl. at 3.) At the time of transfer, the dorm doors in E Yard had no closing 19 devices or inside handles and multiple inmates complained to building staff. (Id.) Whether 20 the inmates complained because they saw the lack of closing devices or inside handles as 21 a “dangerous condition” or simply a nuisance is unclear. Regardless, Plaintiff does not 22 allege any known serious injury resulting from the dorm doors for nearly two years after 23 Defendant “toured, inspected, and cleared” E Yard for occupancy. (Id. at 3–4, 12–13.) 24 The absence of serious injuries for that extended period indicates that the lack of 25 closing devices or inside handles did not render the inmates unable to provide for their own 26 safety. Notably, Plaintiff’s allegations suggest that the inmates were able to perceive this 27 28 1 condition and avoid serious injuries for nearly two years. However, Plaintiff’s allegations 2 also suggest that he and the other inmates could not feasibly avoid using the doors that 3 presented the danger. The inmates’ inability to avoid using the dorm doors is arguably an 4 exacerbating condition. See Morgan, 465 F.3d at 1047 (finding a constitutional violation 5 where an inmate alerted his supervisor to a dangerous defect in the equipment he was using 6 as part of his prison employment and he was ordered to continue working with the defective 7 equipment); Osolinski, 92 F.3d at 939 (favorably citing Gill v. Mooney, 824 F.2d 192 (2d 8 Cir. 1987), as an example of a “danger-plus” condition, where the prison official ordered 9 the inmate to remain on a defective ladder which the prison official knew to be unsafe and 10 an immediate threat to the inmate thus “exacerbate[ing] the inherent dangerousness of the 11 defective ladder, [and] rendering the ladder a serious safety hazard”); cf. Reyes v. Brown, 12 No. 16CV84-JLS (BLM), 2017 WL 1355004, at *6 (S.D. Cal. Apr. 4, 2017), adopted by 13 2017 WL 2928777 (S.D. Cal. July 10, 2017) (finding the plaintiff failed to plead any 14 conditions in a trip-and-fall case which rendered him unable to provide for his own safety 15 “as he was not precluded from walking around any cracks or avoiding the damaged 16 portions of the track and he was not required to jog”); Brown v. Perez, No. ED CV 14-2421 17 CJC (JEM), 2016 WL 7975264, at *7-8 (C.D. Cal. Dec. 16, 2016) (finding the plaintiff 18 failed to allege an exacerbating condition where he did not allege “any additional 19 conditions that precluded him from avoiding the damaged asphalt or rendered him unable 20 to see its cracks and holes” and distinguishing Morgan because the plaintiff was not 21 “compelled to place himself in a dangerous situation”). 22 23 24

25 3 In his opposition, Plaintiff noted that some dorms tried string and torn cloth 26 to assist with closing the door, but “most dorms chose to just reach around, grab the door, 27 and pull it closed before your fingers were caught.” (ECF No. 11 at 4.) He added that “several times” injuries occurred when closing the door in this manner, but the injuries 28 1 As set forth below, however, even if the Court were to find that Plaintiff has 2 sufficiently alleged an objectively serious deprivation, he has not sufficiently pled that 3 Defendant was deliberately indifferent. 4 b. Deliberate Indifference 5 Defendant inspected the facility and knew in late 2016 the dorm doors lacked interior 6 handles or closing devices. There are no allegations, however, that a substantial risk of 7 serious harm posed by the doors was obvious such that Defendant should have had 8 knowledge of it based on her tour of the facility4 or that Defendant was informed of any 9 substantial risk of serious harm posed by the doors before Tarkington’s CDCR 602 appeal 10 was filed.5 Even after Tarkington filed his appeal and Defendant arguably had knowledge 11 of a substantial risk of serious harm, Plaintiff has failed to sufficiently allege that Defendant 12 failed to act reasonably despite this knowledge. Rather, Plaintiff alleges that Defendant 13 responded to the appeal filed by Tarkington, and the one subsequently filed shortly 14 thereafter by Plaintiff, by stating: “Plant Operations is working with Facilities Management 15 to procure funding for the door handles to be installed.” (Compl. at 12–13, 19.) A 16 subsequent appeal response indicated that the installation process had advanced to the 17 design planning phase. (See id. at 21.) Thus, Plaintiff’s allegations and the attachments to 18 the complaint suggest that Defendant, once made aware of the risk, reasonably acted to 19 address that risk.6 See Farmer, 511 U.S. at 844 (“[P]rison officials who actually knew of 20

21 4 See Farmer, 511 U.S. at 842 (explaining that “a factfinder may conclude that 22 a prison official knew of a substantial risk from the very fact that the risk was obvious”). 23 5 In his opposition, Plaintiff states that Defendant “had certain knowledge of the risk of harm as of the Tarkington incident[.]” (ECF No. 11 at 9.) 24 6 See, e.g., Brown, 2016 WL 7975264, at *7 (finding the prison staff’s responses 25 to the plaintiff’s grievances about broken asphalt on the prison yard demonstrated there was no deliberate indifference to a substantial risk of serious harm as the asphalt was 26 scheduled to be replaced and was only awaiting design plans and funding); Townsel v. 27 Quinn, No. C07-0482-JLR, 2008 WL 650284, at *3 (W.D. Wash. Jan. 24, 2008), adopted by 2008 WL 656272 (W.D. Wash. Mar. 7, 2008), aff’d, 369 F. App’x 830 (9th Cir. 2010) 28 1 a substantial risk to inmate health or safety may be found free from liability if they 2 responded reasonably to the risk, even if the harm ultimately was not averted.” (emphasis 3 added)). 4 In his opposition, Plaintiff complains about the speed of the process to procure 5 funding (ECF No. 11 at 5–6), but there are no allegations suggesting that Defendant 6 delayed the procurement process or that her response of seeking funding for door handles 7 was unreasonable. Plaintiff further claims that after Tarkington’s incident Defendant 8 should have posted signs or made an announcement warning of the risk of serious harm 9 posed by the dorm doors, suggesting that such warnings may have prevented his injury. 10 (See Compl. at 3–5; ECF No. 11 at 9, 13.) However, Plaintiff simultaneously claims that 11 he and the other inmates had always been aware that the dorm doors posed a risk of injury 12 and had managed to avoid serious injury for nearly two years. (See Compl. at 3–5; ECF 13 No. 11 at 4–5.) Therefore, even accepting as true Plaintiff’s allegation that he would have 14 exercised greater caution if Defendant had posted signs or given a warning, the Court finds 15 that Plaintiff has still failed to plausibly allege that Defendant was deliberately indifferent 16 to a substantial risk of serious harm in violation of the Eighth Amendment. 17 For the foregoing reasons, the Court finds that Plaintiff has failed to sufficiently 18 allege an Eighth Amendment claim against Defendant for deliberate indifference. 19 3. Qualified Immunity 20 Defendant further argues that she is entitled to qualified immunity, asserting that no 21 Ninth Circuit or Supreme Court case law establishes “‘beyond debate’ that an inmate is 22 entitled to ideal, defective-free prison conditions.” (ECF No. 9 at 9–10.) 23 24 25 26 following his fall in the shower and the “responses to these grievances reveal that after 27 plaintiff’s fall, the cleaning procedures were modified, strips were welded over the sharp edges of the metal plates to address the cut hazard, and a plan was implemented to address 28 1 “The doctrine of qualified immunity protects government officials from liability for 2 civil damages insofar as their conduct does not violate clearly established statutory or 3 constitutional rights of which a reasonable person would have known.” Stanton v. Sims, 4 571 U.S. 3, 4–5 (2013) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal 5 quotation marks omitted)). Courts analyze two prongs to determine whether qualified 6 immunity applies: officers have qualified immunity “unless (1) they violated a federal 7 statutory or constitutional right, and (2) the unlawfulness of their conduct was ‘clearly 8 established at the time.’” District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) 9 (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)). 10 “Clearly established means that, at the time of the officer’s conduct, the law was 11 sufficiently clear that every reasonable official would understand that what he is doing is 12 unlawful.” Id. (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)) (internal quotation 13 marks omitted). This standard protects “all but the plainly incompetent or those who 14 knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). Here, although 15 the Court has determined that Plaintiff has not sufficiently alleged a violation of the Eighth 16 Amendment, the Court will still turn to address the question of whether the right was clearly 17 established at the time of the events alleged in the complaint. See Osolinski, 92 F.3d at 937 18 (the focus of an Eighth Amendment qualified immunity analysis is on the objective 19 requirement). 20 Plaintiff has not identified, and the Court has not located, a case in which the lack of 21 door handles or closing devices on a cell door to assist inmates in opening and closing the 22 door safely implicates the Eighth Amendment. Even if the Court broadens the scope of the 23 question,7 analogous case law suggests that an allegedly dangerous condition in a prison 24 cell caused by the lack of equipment to assist an inmate in completing a daily task safely 25 does not rise to the level of a constitutional violation. For example, “[m]ultiple district 26

27 7 Notably, courts must not “define clearly established law at a high level of 28 1 courts in the Ninth Circuit have held that the failure of prison officials to equip prison cells 2 with a ladder or some other ‘safety apparatus’ to assist inmates in ascending to and 3 descending from bunk beds does not amount to the deprivation of ‘a minimally civilized 4 measure of life’s necessities.’” Millsap v. Cate, No. 2:10-CV-02008-MCE, 2012 WL 5 1037949, at *4–6 (E.D. Cal. Mar. 27, 2012) (granting qualified immunity because it was 6 not “clearly established that top bunks not equipped with ladders or other safety features 7 pose a substantial risk of serious harm that society would consider so grave as to amount 8 to an Eighth Amendment’s violation”); see also Meier v. Correct Care Sols., No. C17- 9 5248 BHS-KLS, 2017 WL 1364649, at *3 (W.D. Wash. Apr. 14, 2017) (finding that 10 “ladderless bunk beds do not satisfy the objective prong for an Eighth Amendment 11 violation”); Jenkins v. Fischer, No. 9:08-CV-0045 GLS RFT, 2010 WL 6230517, at *5–7 12 (N.D.N.Y. Sept. 8, 2010), adopted by 2011 WL 978762 (N.D.N.Y. Mar. 17, 2011) (finding 13 the defendants entitled to qualified immunity because it was not clearly established that the 14 absence of ladders in double-bunked cells violated the Eighth Amendment) (collecting 15 cases).8 Because Plaintiff has failed to establish either prong of the qualified immunity 16 analysis, the Court finds that Defendant is entitled to qualified immunity on Plaintiff’s 17 Eighth Amendment claim.9 18 For the foregoing reasons, the Court RECOMMENDS that Plaintiff’s Eighth 19 Amendment claim be DISMISSED. 20 21 22 8 But see Brown v. Bargery, 207 F.3d 863, 867–68 (6th Cir. 2000) (finding 23 sufficient to state an Eighth Amendment claim an inmate’s allegations that the bunks in one of the prison’s housing units were “improperly installed upside down, which would 24 pose an unreasonable risk of future injury by causing inmates to fall from their bunks while 25 asleep and by subjecting inmates to the hazards of rolling into sharp protruding mounting bolt studs”). 26 9 “Qualified immunity is only an immunity from a suit for money damages, and 27 does not provide immunity from a suit seeking declaratory or injunctive relief.” Hydrick v. Hunter, 669 F.3d 937, 939–40 (9th Cir. 2012). However, as set forth below, Plaintiff 28 1 C. Injunctive Relief 2 Defendant further moves to dismiss Plaintiff’s claim for injunctive relief on the 3 grounds that Plaintiff’s transfer to another prison renders his claim moot. (ECF No. 9 at 4 11.) Plaintiff’s claim arises out of events occurring at RJD; however, Plaintiff has since 5 transferred to the California Health Care Facility. (Compl. at 1.) Generally, when an 6 inmate is transferred, an individual claim for injunctive relief against the inmate’s former 7 prison becomes moot. Dilley v. Gunn, 64 F.3d 1365, 1368 (9th Cir. 1995). The reason is 8 that the transferred inmate is no longer subject to the prison conditions or policies he 9 challenges. Alvarez v. Hill, 667 F.3d 1061, 1064 (9th Cir. 2012). Here, because Plaintiff’s 10 claim only challenges the conditions at RJD, and he does not allege an exception to the 11 mootness doctrine, Plaintiff’s claim under Section 1983 for injunctive relief is moot. 12 Accordingly, the Court RECOMMENDS that Plaintiff’s claim for injunctive relief be 13 DISMISSED. 14 D. Eleventh Amendment Immunity 15 Lastly, Defendant moves to dismiss Plaintiff’s claim for damages against Defendant 16 in her official capacity due to Eleventh Amendment immunity. (ECF No. 9 at 11–12.) 17 Plaintiff has sued Defendant in both her official and individual capacities. (Compl. at 2.) 18 In addition to injunctive relief, Plaintiff seeks damages. (Id. at 10.) 19 Under the Eleventh Amendment, “private individuals may not sue non-consenting 20 state entities in federal court.” Kendrick v. Conduent State & Local Sols., Inc., 910 F.3d 21 1255, 1259 (9th Cir. 2018); see also Mitchell v. L.A. Cmty. Coll. Dist., 861 F.2d 198, 201 22 (9th Cir. 1988). California has not waived its Eleventh Amendment immunity with respect 23 to claims brought under Section 1983 in federal court. Dittman v. California, 191 F.3d 24 1020, 1025–26 (9th Cir. 1999); see also Brown v. Cal. Dep’t of Corr., 554 F.3d 747, 752 25 (9th Cir. 2009) (CDCR is entitled to Eleventh Amendment immunity). A suit against a 26 public employee in her official capacity is equivalent to a claim against her employer. 27 Kentucky v. Graham, 473 U.S. 159, 165–66 (1985); Butler v. Elle, 281 F.3d 1014, 1023 28 n.8 (9th Cir. 2002). Accordingly, the Eleventh Amendment bars Plaintiff’s Section 1983 1 claim for damages against Defendant in her official capacity. See Mitchell v. Washington, 2 818 F.3d 436, 442 (9th Cir. 2016); David v. Giurbino, 488 F. Supp. 2d 1048, 1055 (S.D. 3 Cal. 2007).10 4 Therefore, the Court RECOMMENDS that Plaintiff’s claim for damages against 5 Defendant in her official capacity be DISMISSED. 6 E. Leave to Amend 7 The Court RECOMMENDS that Plaintiff be given leave to amend his claim for 8 damages against Defendant in her individual capacity, as it is not absolutely clear from the 9 complaint that the deficiencies in his Eighth Amendment claim cannot be overcome with 10 amendment. See Karim-Panahi, 839 F.2d at 623–24; James, 221 F.3d at 1077. 11 IV. CONCLUSION 12 For the reasons stated above, the Court RECOMMENDS that the District Court 13 issue an Order: (1) adopting this Report and Recommendation; and (2) GRANTING 14 Defendants’ Motion to Dismiss (ECF No. 9) with leave to amend. 15 IT IS SO ORDERED that no later than January 29, 2021, any party to this action 16 may file written objections with the Court and serve a copy on all parties. The document 17 should be captioned “Objections to Report and Recommendation.” 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26

27 10 The Eleventh Amendment does not, however, bar claims for damages against 28 1 IT IS FURTHER ORDERED that any reply to the objections shall be filed with 2 Court and served on all parties no later than February 12, 2021. The parties are advised 3 || that failure to file objections within the specified time may waive the right to raise those 4 || objections on appeal of the Court’s order. See Martinez v. Yist, 951 F.2d 1153, 1156 (9th 5 1991). 6 IT IS SO ORDERED. 7 ||Dated: January 4, 2021 g ope Boalt n. Jill L. Burkhardt 9 1ited States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28