Goolsby v. Cate

          FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT BE DENIED FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANTS’ MOTION FOR AN ORDER REQUIRING SECURITY FROM A VEXATIOUS LITIGANT BE DENIED

         I. BACKGROUND

         Plaintiff Thomas Goolsby, along with Kevin Hunt, Paul Diaz, David Baumgaertel, and Jesse Gehrke, state prisoners and former state prisoners proceeding pro se, commenced this action on January 25, 2013, against Defendants Holland, Stainer, Lundy, Foster, Plumlee, Uribe, and Jordan (collectively “Defendants”). (ECF No. 1.)

         On May 2, 2013, the Court issued an order severing the claims and requiring each plaintiff to file an amended complaint for their own actions within thirty days. (ECF No. 9.) On June 5, 2013, Plaintiff Thomas Goolsby (“Plaintiff”) appealed the court’s order to the Ninth Circuit Court of Appeals. (ECF No. 14.) On June 5, 2013, the Court stayed this action pending resolution of Plaintiff’s appeal. (ECF No. 20.) Plaintiff’s appeal was resolved, and on September 23, 2013, the stay was lifted. (ECF Nos. 24, 25, 26.) On September 25, 2013, Plaintiff filed the First Amended Complaint. (ECF No. 31.) Plaintiff is now the sole plaintiff in this case.

         On May 21, 2014, the Court screened Plaintiff’s First Amended Complaint and issued an order requiring Plaintiff to file a Second Amended Complaint that corrected the deficiencies found. (ECF No. 33.) On June 6, 2014, Plaintiff filed the Second Amended Complaint. (ECF No. 34.) On March 24, 2015, the Court screened Plaintiff’s Second Amended Complaint and found that it states certain cognizable claims.^[1] (ECF No. 36.) This case now proceeds on the Second Amended Complaint, on Plaintiff’s Eighth Amendment claims against Defendants Holland, Stainer, and Lundy, for denial of adequate outdoor exercise time; and Defendants Lundy, Foster, Plumlee, Holland, Uribe, and Jordan for deliberate indifference to unsanitary and unsafe conditions stemming from failing to respond reasonably to known conditions including defective plumbing, dripping water, mold, and flooding in Plaintiff’s cell.

         Because the Court found certain cognizable § 1983 claims in screening the Second Amended Complaint, the Court exercised supplemental jurisdiction over Plaintiff’s state law claims that form part of the same case or controversy as Plaintiff’s cognizable federal claims. The Court made no determination about the viability of Plaintiff’s state law claims that related to general negligence, premises liability, violation of the Bane Act, and failing to comply with rules and policies.

         On March 8, 2016, Defendants filed a Rule 56 motion for summary judgment, or in the alternative, partial summary judgment. (ECF No. 74.) In that same motion, Defendants included a motion for an order requiring security from a vexatious litigant. On March 25, 2016, Plaintiff filed an opposition to the motion.^[2] (ECF No. 76.) On April 1, 2016, Defendants filed a reply. (ECF No. 77.) Defendants’ motion is now before the Court. Local Rule 230(l).

         II. PLAINTIFF’S ALLEGATIONS

         Plaintiff is a prisoner in the custody of California Department of Corrections (“CDCR”), presently incarcerated at Pelican Bay State Prison (“PBSP”) in Crescent City, California. The events at issue in the Complaint allegedly occurred at California Correctional Institution (“CCI”), when Plaintiff was incarcerated there. Plaintiff’s factual allegations follow.

         From February 11, 2011 through March 27, 2012, Plaintiff was housed in the segregated housing unit (“SHU”) at CCI. During the thirteen months he was housed in SHU, Plaintiff’s exercise time averaged around 12 minutes per day. Additionally, Plaintiff’s exercise area amounted to a 150 square foot metal cage, which was only 25 square feet larger than Plaintiff’s cell. The small size of the exercise area was such that Plaintiff was unable to run, jog, or walk laps. Plaintiff repeatedly requested that he be provided adequate exercise time and an adequate exercise area; however, these requests were denied. Plaintiff suffered serious physical injuries and psychological injuries.

         Baffles that eroded with time created a back-flowing problem within the cells at CCI. Sewage from the toilet of one cell fills the toilet of another cell each time the toilet is flushed. The toilets lack covers, and each time a prisoner flushes toilet waste, sewage particles fly into the air. Plaintiff was forced to eat every meal in his cell in these conditions. Plaintiff wrote Defendants and made each of them aware of the unsanitary conditions. Plaintiff requested that if he could not get the toilets fixed immediately, that he at least have access to a scrub pad, gloves, and cleaner, in order to sanitize his cell. Plaintiff’s requests went unanswered. Plaintiff contracted a skin infection and stomach illness which caused him pain, itching, burning, and suffering.

         In November 2011, Plaintiff was placed in a cell that had a leaking roof. The leaking was constant, and Plaintiff observed mold patches all along the five to six foot crack in his ceiling. Plaintiff submitted numerous work orders and complained directly to numerous Defendants, however, the leak was never fixed. Plaintiff slipped and fell on the concrete floor, which resulted in a back injury. Plaintiff also suffered respiratory injuries.

         Plaintiff requests monetary damages as relief.

         III. MOTION FOR SUMMARY JUDGMENT

         A. Legal Standard

         Any party may move for summary judgment, and the Court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a) (quotation marks omitted); Washington Mutual Inc. v. U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). Each party’s position, whether it be that a fact is disputed or undisputed, must be supported by (1) citing to particular parts of materials in the record, including but not limited to depositions, documents, declarations, or discovery; or (2) showing that the materials cited do not establish the presence or absence of a genuine dispute or that the opposing party cannot produce admissible evidence to support the fact. Fed.R.Civ.P. 56(c)(1). The Court may consider other materials in the record not cited to by the parties, but it is not required to do so. Fed.R.Civ.P. 56(c)(3); Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010).

         Defendant does not bear the burden of proof at trial and in moving for summary judgment, he need only prove an absence of evidence to support Plaintiff’s case. In re Oracle Corp. Securities Litigation, 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). If Defendant meets his or her initial burden, the burden then shifts to Plaintiff “to designate specific facts demonstrating the existence of genuine issues for trial.” Id. (citing Celotex Corp., 477 U.S. at 323). This requires Plaintiff to “show more than the mere existence of a scintilla of evidence.” Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).

         In judging the evidence at the summary judgment stage, the Court may not make credibility determinations or weigh conflicting evidence, Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007), and it must draw all inferences in the light most favorable to the nonmoving party and determine whether a genuine issue of material fact precludes entry of judgment, Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011), cert. denied, 132 S.Ct. 1566 (2012). The Court determines only whether there is a genuine issue for trial and in doing so, it must liberally construe Plaintiff’s filings because he is a pro se prisoner. Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010).

         B. Failure to Exhaust an Available Administrative Remedy

         Initially, Defendants argued that Plaintiff’s Appeals were not filed timely making them procedurally deficient, and therefore, Plaintiff failed to properly exhaust an administrative remedy.^[3] However, confronted with clear law, Defendants withdrew the argument. Defendants’ Reply, p. 2. (ECF No. 77.) The Court briefly summarizes the issue for the record below, and for the potential relevance to other issues pending in this motion.

         Defendants allege that Plaintiff first became aware of the inadequate exercise time, toilet backflow, and mold and leaking roof issues when he first arrived to SHU on February 11, 2011. Defendants assert that Plaintiff: (1) did not submit his inadequate exercise time Appeal until December 17, 2011; (2) did not submit his toilet backflow Appeal until September 4, 2011; and (3) did not submit his mold and leaking roof Appeal until January 24, 2012. (RJN Exhs. N, P, R.) Because these grievances were filed more than thirty days after the time these continuing issues were first noticed, Defendants initially claimed Plaintiff’s case should be dismissed for non-exhaustion.

         It is undisputed that Plaintiff’s appeals were heard on the merits. (RJN Exhs. N, P, R.) Plaintiff properly cites to Reyes v. Smith, which recently held that the failure to name defendants or comply with any procedural requirements does not bar a claim if an Appeal is heard on the merits by prison officials. 810 F.3d 654, 659 (9th Cir. 2016). Courts tend to agree that if the public entity accepted the Appeal, and weighed in on the merits, the administrative remedy is properly exhausted. Given that Plaintiff’s appeals were accepted by CCI’s Appeals Coordinator, and heard on the merits, the Court finds that Plaintiff properly exhausted the appropriate administrative remedies in regards to his appeals.

         Defendants’ motion for summary judgment as to their argument pertaining to Plaintiff’s failure to exhaust administrative appeals has now been withdrawn.

         C. Failure to Comply with the California Government Claims Act

         Defendants next argue that Plaintiff’s inadequate exercise time and leaking roof Government Claims were submitted too long after the first time these continuing issues arose, and failed to name individual prison officials responsible for these prison conditions. For these reasons, Defendants argue that Plaintiff’s claims of negligence and violation of the Bane Act should be dismissed on summary judgment.

         In opposition, Plaintiff maintains that his Government Claims pertaining to inadequate exercise time and a leaking roof, like his appeals, were accepted and heard on the merits. (RJN Exhs. O, S.) Additionally, the Government Claims Board never refused to accept either claim for failure to name defendants. (RJN Exhs. O, S.) As to Defendants’ argument that Plaintiff waited too long to file his lawsuit after learning of his leaking roof Government Claim denial, Plaintiff maintains that summary judgment should be denied because the limitations period was tolled while he was exhausting administrative remedies.^[4]

         1. Legal Standard

         The requirement to submit a Government Claim is a separate requirement from the requirement to exhaust an available administrative remedy, both of which must be satisfied before suit can be filed. LaCava v. Merced Irrigation Dist., 2012 U.S. Dist. LEXIS 36050 *39 (E.D. Cal. March 16, 2012). The Government Claim requirement applies to Plaintiff’s claims of negligence under California law and violation of the Bane Act, California Civil Code section 52.1, with respect to the alleged denial of exercise time and roof leaks. The California Government Claims Act requires that before a claim for money or damages is brought against a state entity, the claim must have first been presented to, and acted upon or rejected by, the Victims Compensation and Government Claims Board (“VCGCB”). Cal. Gov. Code § 945.4. A plaintiff must plead compliance with this act in his complaint or be subject to dismissal for failure to state a claim. Mangold v. California Pub. Utils. Com’n, 67 F.3d 1470, 1477 (9th Cir. 1995). Under Government Code section 911.2(a), a Government Claim must be submitted within six months of the accrual of the cause of action.

         Based on the doctrine of equitable tolling, the running of the six-month limitations period under the California Government Claims Act can be suspended in certain instances. Addison v. State, 21 Cal.3d 313, 316 (1978). As the court in Addison held, “occasionally and in special situations, the foregoing statutory procedure does not preclude application of the equitable tolling doctrine, the purpose of which is to soften the harsh impact of technical rules which might otherwise prevent a good faith litigant from having a day in court.” Id. “In the case of a [prisoner] who has acted in good faith to pursue his claims, the balance tips sharply in favor of equitable tolling the statute of limitations to ensure fundamental practicality and fairness.” Jones v. Blanas, 393 F.3d 918, 929 (9th Cir. 2004) (internal quotations omitted). Application of the doctrine of equitable tolling “requires a balancing of the injustice to the plaintiff occasioned by the bar of his claim against the effect upon the important public interest or policy expressed by the limitations statute.” Id. at 928 (internal punctuation omitted).

         2. Discussion

         In regards to Plaintiff’s inadequate exercise time Claim, Defendants allege that Plaintiff knew of the issue and alleged injury beginning on February 11, 2011, the first time these continuing problems took place, but that a Claim was not submitted until August 20, 2012. (RJN Ex. O.) Additionally, the Claim also failed to list the names of the staff members involved.

         Though there is dispute as to whether the claims were procedurally deficient, it is undisputed that Plaintiff did file Government Claims pertaining to inadequate exercise time and a leaking roof. (RJN Exhs. O, S.) The claim intake letters, provided by Defendants, each state that “The VCGCB will act on your claim at the . . . hearing. You do not need to appear at this hearing. The VCGCB’s rejection of your claim will allow you to initiate litigation should you wish to pursue this matter further.” (RJN Exhs. O, S.) These letters sufficiently show that Plaintiff’s Government Claims, at the very least, were allowed to proceed to a hearing before the Government Claims Board. Therefore, irrespective of any procedural deficiencies, the Government Claims Board accepted Plaintiff’s claims and did not reject them for being late.

         The issue of when a claim accrues in the case of a continuing violation is not a clear one. Where a temporary and brief leak in a roof (or any of the other alleged problems) may not rise to the level of a constitutional violation, a continued and unfixed leaky roof over a long period of time may. The Court is not persuaded that the claim for such continuing violations began to accrue on the first day the issue was noticed. In the end, the Court looks to the fact that the Government Claims Board accepted Plaintiff’s complaint without finding it deficiently late. The Court does not find any case precedent establishing applicable law related to deficient Government Claims that are nonetheless accepted and heard on the merits. Nonetheless, the Court finds that the same principle regarding deficient administrative appeals heard on the merits, discussed above, is guiding here for the same reason. The principle, provided by the court in Reyes, contends that the failure to name defendants or comply with any procedural requirements does not bar a claim if an Appeal is heard on the merits by prison officials. 810 F.3d at 659. The Court finds that, if the public entity accepted the Claim and weighed in on the ...