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Pennings v. Barrera

United States District Court, S.D. California

April 19, 2017

OTONIEL TYLER PENNINGS, Plaintiff,
v.
BARRERA, et al., Defendants.

          REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE RE: MOTION TO DISMISS [ECF NO. 12]

          HON. MITCHELL D. DEMBIN UNITED STATES MAGISTRATE JUDGE.

         This Report and Recommendation is submitted to the United States District Judge Janis L. Sammartino pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule 72.1(c) of the United States District Court for the Southern District of California.

         For the reasons set forth herein, the Court RECOMMENDS Defendants' Motion to Dismiss be GRANTED IN PART AND DENIED IN PART.

         I. PROCEDURAL HISTORY

         Plaintiff Otoñiel Tyler Pennings (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis. (ECF Nos. 1, 6). On March 7, 2016, Plaintiff filed a complaint pursuant to 42 U.S.C. § 1983. (ECF No. 1). Plaintiff's complaint sets forth various claims against four named individuals working at the George Bailey Detention Facility (“GBDF”) alleging that they violated his civil rights by: (1) retaliating against him in violation of the First Amendment; (2) imposing cruel and unusual conditions of confinement in violation of the Eighth Amendment; (3) treating him inhumanely in violation of the Fourteenth Amendment's Equal Protection Clause; (4) failing to provide Plaintiff his due process rights in violation of the Fourteenth Amendment; (5) using excessive force against him; (6) assaulting and battering him; (7) providing inadequate medical care; (8) providing negligent medical care; and (9) intentionally inflicting emotional distress upon him. (See id.).

         On October 12, 2016, Defendants Stapleton and Benjamin filed a motion to dismiss some of the claims against them. (ECF No. 12). Defendants contend that: (1) Plaintiff's First Amendment retaliation claim against Defendant Benjamin should be dismissed because Defendant Benjamin did not “prevent[] Plaintiff from engaging in protected conduct[;]” (2) Plaintiff's Eighth Amendment claim against both Defendants should be dismissed because Plaintiff did not allege that Defendants caused the unsanitary living conditions; (3) Plaintiff's denial of religious accommodations claim should be dismissed because Plaintiff did not allege “facts indicating that the responding defendants denied him the kosher meals, or that they were necessary for him to practice” his religion;[1] (4) Plaintiff's destruction of property claim against Defendant Stapleton must be dismissed because “Plaintiff does not allege the absence of an administrative remedy to challenge property destruction[;]” (5) Plaintiff's intentional infliction of emotional distress claim against Defendant Stapleton should be dismissed because he does not allege extreme and outrageous conduct; and (6) the state law claims should be dismissed as untimely. (ECF No. 12-1 at 3-7).

         On October 13, 2016, this Court ordered Plaintiff to file a Response in Opposition to Defendants' Motion to Dismiss on or before November 3, 2016, and Defendants to file a reply on or before November 10, 2016. (ECF No. 13). On November 2, 2016, Plaintiff requested a 90-day continuance to file his opposition to Defendants' motion to dismiss in a duplicative action. (Pennings v. San Diego Sheriff's Dep't, et al., S.D. Cal. Civil Case No. 16cv2318-CAB-DHB, ECF No. 7). On January 10, 2017, District Judge Bencivengo closed Plaintiff's duplicative action and denied Plaintiff's motion for a continuance without prejudice to be re-filed in this case. (Id. at ECF No. 11). Plaintiff did not re-file the motion as directed, but the Court nevertheless amended the briefing schedule and ordered Plaintiff to file a Response in Opposition to Defendants' Motion to Dismiss on or before February 8, 2017, and Defendants to file a reply on or before February 15, 2017. (ECF No. 17). The Court granted Plaintiff one continuance and ordered him to file a Response in Opposition to Defendants' Motion to Dismiss on or before March 16, 2017. (ECF Nos. 21, 22). On March 17, 2017, the date of his signature, Plaintiff filed a Response in Opposition to Defendants' Motion to dismiss. (ECF No. 25). The Court will consider Plaintiff's opposition even though it was not timely filed.

         Plaintiff opposes the motion to dismiss on the grounds that: (1) Defendant Benjamin retaliated against Plaintiff by ordering he be moved “to a dirty, feces-covered cell, in a module used as ‘punishment[;]''' (2) Defendant Stapleton intentionally inflicted emotional distress by calling Plaintiff derogatory names and assaulting him because of his religion; and (3) his state law claims are timely because he mailed his Complaint on February 26, 2016.[2] (Id. at 5-9).

         Defendants reply that Plaintiff's Complaint should be dismissed because: (1) Plaintiff failed to timely file his opposition; (2) Plaintiff provided no proof that his Complaint was mailed on February 26, 2016; and (3) Plaintiff's Complaint “consist[s] of mere conclusions in the form of allegations . . . . [that] fall woefully short of establishing a claim against Defendants for any constitutional violation.” (ECF No. 26 at 2-5).

         II. BACKGROUND FACTS

         The facts are taken from Plaintiff's Complaint and are not to be construed as findings of fact by the Court.

         Plaintiff's claims arise from a series of events that occurred while Plaintiff was held at GBDF as a subpoenaed witness for an evidentiary hearing in the criminal case of another state prisoner. (ECF No. 1 at 3). Plaintiff was placed in an administrative segregation unit (“Module 5A”) and immediately “noticed unconstitutional living conditions . . . and began the ‘grievance process.'” (Id.). Plaintiff filed grievances alleging cruel and unusual living conditions, lack of access to the law library and law books, failure to provide three hours of recreation time, failure to provide a kosher diet or religious services and reading material and that Defendants were posting “excessive personal and private information” on cell doors. (Id. at 4).

         Plaintiff's Complaint describes his claim in nine counts as follows:

         In count one, Plaintiff contends that Defendants Barrera, Stapleton and Benjamin violated his First Amendment right to freedom of speech by retaliating against him for filing grievances. (Id. at 4-6).

         In count two, Plaintiff contends that Defendants Barrera, Sanchez, Stapleton and Benjamin imposed cruel and unusual conditions of confinement in violation of the Eighth Amendment. (Id. at 7-8).

         In count three, Plaintiff contends Defendants Barrerra and Sanchez violated his equal protection rights when they treated him differently than other inmates and made “racially insensitive slurs” targeted at his Jewish faith. (Id. at 8-9).

         In count four, Plaintiff contends that Defendants Benjamin, Barrera, Sanchez and Stapleton violated his due process rights under the Fourteenth Amendment. (Id. at 9; ECF No. 1-1 at 1).

         In count five, Plaintiff contends that on November 17, 2014, Defendants Benjamin, Stapleton, Barrera and Sanchez used excessive force upon him. (ECF No. 1-1 at 1-3).

         In count six, Plaintiff contends Defendants Barrera, Sanchez and Stapleton assaulted and battered him during the excessive force incident explained in count six. (Id. at 5).

         In count seven, Plaintiff contends that he received inadequate medical care from an unknown person treating Plaintiff's injuries sustained during the assault, battery and excessive force incident. (Id. at 5-6).

         In count eight, Plaintiff contends that some unknown person committed medical malpractice and was medically negligent when treating Plaintiff's injuries. (Id. at 6).

         In count nine, Plaintiff contends Defendants Barrera, Sanchez, Stapleton and Benjamin intentionally inflicted emotional distress upon Plaintiff. (Id.).

         III. STANDARD OF REVIEW

         “A Rule 12(b)(6) motion tests the legal sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a short and plain statement of the claim showing that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (internal quotations omitted). The pleader must provide the Court with “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. “Although for the purposes of a motion to dismiss [a court] must take all of the factual allegations in the complaint as true, [a court is] not bound to accept as true a legal conclusion couched as a factual allegation.” Iqbal, 556 U.S. at 678 (internal quotations omitted).

         A pro se pleading is construed liberally on a defendant's motion to dismiss for failure to state a claim. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002) (citing Ortez v. Washington Cnty. Oregon, 88 F.3d 804, 807 (9th Cir. 1996)). The pro se pleader must still set out facts in his complaint that bring his claims “across the line from conceivable to plausible.” Twombly, 550 U.S. at 570. A court “may not supply essential elements of the claim that were not initially pled.” Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982). A pro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity to amend, unless the complaint's deficiencies cannot be cured by amendment. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).

         IV. DISCUSSION

         The Court will only address challenged claims brought against Defendants Benjamin and Stapleton. Those claims are: (1) count one, First Amendment retaliation against Defendant Benjamin; (2) count two, Eighth Amendment cruel and unusual punishment against both Defendants; (3) count three, Fourteenth Amendment violation of the Equal Protection Clause against Defendant Benjamin; (4) count four, Fourteenth Amendment violation of due process against Defendant Stapleton; (5) count nine, intentional infliction of emotional distress against Defendant Stapleton; and (6) the timeliness of Plaintiff's state law claims. (See ECF Nos. 1, 12-1).

         A. First Amendment ...


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