United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
is proceeding in this matter pro se, and pre-trial
proceedings are accordingly referred to the undersigned
pursuant to Local Rule 302(c)(21). Pending is a motion to
dismiss the operative Second Amended Complaint
(“SAC”) by Lara Saich, Janet Lewis, Christine
Milne, and Glen Welker (“individual state
defendants”). ECF No. 31-1 at 7. Plaintiff has opposed
the motion (ECF No. 35) and defendants replied (ECF No. 37).
For the reasons explained below, the undersigned recommends
the motion to dismiss be GRANTED.
initially filed this case and paid the filing fee on
September 13, 2018. ECF No. 1. Following a stipulation and
briefing in response to an order to show cause, the district
judge in this case adopted the undersigned's findings and
recommendations allowing plaintiff to file a Second Amended
Complaint against CDCR, Christopher Gates, Lara Saich, Janet
Lewis, Christine Milne, California Occupational Safety and
Health Administration (“Cal-OSHA”), and Marie
Blake. ECF No. 26. Plaintiff's Second Amended Complaint,
the currently operative complaint in this case, was filed on
September 20, 2019. The SAC makes claims against each of
individual state defendants and defendant Blake for the
following: (1) negligence; (2) violation of 42 U.S.C. §
1983 (“Section 1983”); and (3) infliction of
emotional distress (negligent and intentional). ECF No. 30 at
Allegations of the Complaint
is a 61-year-old woman who worked for the State of California
for over 26 years, with the last 10 years spent working in
the medical healthcare program for CDCR. ECF No. 30 at 4.
During her employment at CDCR plaintiff made a complaint to
defendants that she was being over-exposed to
“nonionizing radiation” (electromagnetic
frequencies) in the workplace. Id. Plaintiff advised
the defendants that she had medical monitoring devices on her
body that made these exposures potentially lethal.
Id. Plaintiff made 19 requests for security camera
footage to positively identify the perpetrators but was
prevented from getting footage because the workplace camera
system was out of order for about four months. Id.
defendants Lewis, Saich, and Welker did not provide a
hazard-free workplace, and because Cal-OSHA and its employee
Marie Blake did not conduct an inspection of the workplace,
plaintiff hired experts from AAA Security in Salt Lake City,
Utah, at her own expense to conduct an investigation of her
workplace. Id. at 5. The results showed that
electromagnetic frequencies harming plaintiff at her
workplace “doubled in power” when she arrived at
work, and were connected to plaintiff's employer, CDCR.
Id. The results further showed that the
electromagnetic frequencies were being used to remotely
conduct nonconsensual medical research on CDCR inmates.
plaintiff learned of the above, CDCR employees Saich and
Milne attempted to evade liability and discredit plaintiff by
claiming plaintiff was suffering from some sort of mental
malady and tried to “railroad” plaintiff into a
psychiatric evaluation with a CDCR contractor, even after
plaintiff presented them with medical evidence in support of
her physical injuries and evidence of plaintiff's mental
soundness, which plaintiff obtained at her own expense for
$5, 500.00 while on authorized federal medical leave.
also learned that defendant Saich was working to protect the
interests of IBM corporation, and potentially Hewlett
Packard, who were using CDCR inmates for testing of their
“IBM 2020 Neural Brain Chip.” Id. at 6.
Plaintiff alleges that Saich wrongfully fired plaintiff
because plaintiff knew about the research. Id.
Defendants did not respond to plaintiff's complaint and
as a direct and proximate result, plaintiff has been severely
damaged and injured, and plaintiff's experts have opined
that plaintiff is suffering from acute and chronic radiation
poisoning, lead and other heavy metals poisoning,
hematologic, cardiologic and immunological illnesses and
symptoms, and has evidence of DNA damage and stem cell
failure indicating cancer. Id.
alleges she began experiencing physical symptoms at work in
mid-2016, after she learned that CDCR inmates were being used
for nonconsensual medical experiments and reported the issue
pursuant to CDCR's “Zero Tolerance Code of
Silence” policy which she signed as a condition of her
employment. Id. at 8-9. Her physical symptoms caused
her to fall three times at work. Id. at 9. During
this time plaintiff also experienced sporadic vehicular
assaults and noticed some vehicles repeatedly following her.
Id. She reported this to defendants Saich and Lewis.
early 2017 plaintiff reached out to Dr. Hildegarde Staninger,
Ph.D., RIET-1, who is an OSHA institute graduate and actively
certified compliance and safety health expert, nationally
recognized as an expert in industrial toxicology.
Id. at 9-10. Dr. Staninger referred plaintiff to a
private investigator and bioenergy engineer at Columbia
Investigations, Melinda Kidder. Id. at 10.
Investigator Kidder provided preliminary evidence of the
medical monitoring devices in plaintiff's body and
referred her to AAA Security for testing with a professional
electrical engineer. Id. AAA Security tested
plaintiff on four occasions in 2017 and positively confirmed
that plaintiff had medical devices installed on her body
without her consent. Id. Plaintiff believes the
devices were installed during a routine plastic surgery.
August 1, 2017, plaintiff had three specimens surgically
removed by Dr. Susan E. Kolb, whom plaintiff understands to
be licensed by the State of Georgia as a medical doctor and
surgeon with expertise in providing a broad spectrum of
plastic and reconstructive surgical care and who has removed
numerous similar devices in other patients. Id. at
11. The removed foreign bodies were determined by
pictomicrographs and physical examination at 30x
magnification to be medical monitoring devices and piece
parts of the same. Id. at 11-12. Some of the parts
were identified as built by the Department of Defense at the
U.S. Naval Laboratory, and one was positively identified as a
particle accelerator. Id. at 12. Additional testing
by Applied Consumer Services, Inc. confirmed the specimens
were devices which can be used for radiation research and to
monitor physiological responses of the person in whom they
are installed, and that the devices were in the category of
3D Semiconductors. Id.
September 5, 2017, plaintiff filed a workplace safety/hazard
complaint with Cal-OSHA stating that she was being
overexposed to nonionizing radiation in her workplace.
Id. A copy of the letter was provided to defendants
Lewis, Saich, and Milne. Id. at 13. When plaintiff
did not receive a response, Dr. Staninger followed up with an
October 2, 2017 letter, expressing her concerns that
plaintiff was in imminent danger. Id. Due to the
lack of response, Dr. Staninger recommended plaintiff hire a
private company to investigate her workplace. Id. It
was at this point that plaintiff flew AAA Security to
California to conduct an inspection. Id. Results
were provided to Dr. Staninger for analysis, which showed the
radio signals being received by plaintiff's body while
she was at work were directly and/or tangentially connected
to CDCR. Id.
Staninger sent a follow-up letter to Cal-OSHA on October 30,
2017, referencing the additional private testing.
Id. Following the October 30, 2017 letter, defendant
Marie Blake issued a letter disclaiming any responsibility
for plaintiff's request and referring plaintiff to the
Federal Communications Commission to investigate the claims
of nonionizing radiation in the workplace. Id. at
15. Plaintiff contacted the FCC, but they referred her back
to Cal-OSHA. Id. Dr. Staninger sent a letter to the
National Institute for Occupational Safety and Health in
November 2017, and received a response confirming any
investigation would be the responsibility of Cal-OSHA.
names 5 defendants: Saich, Lewis, Milne, Welker
(“individual state defendants”) and District
Manager of California Occupational Safety and Health
Organization (Cal-OSHA) Marie Blake, as well as DOES 1-20.
Id. at 7-8. No. state agencies are listed. Each
named defendant is sued in his or her professional capacity.
Id. at 7-8.
Motions to Dismiss
CDCR, Gates, and the individual state defendants (Saich,
Lewis, Milne, and Welker) move to dismiss plaintiff's
complaint. ECF No. 31-1 at 21. They argue that the
plaintiff's claims against the individual state
defendants are barred by Eleventh Amendment Immunity.
Id. They also contend that formerly named and served
defendants Christopher Gates and the California Department of
Corrections and Rehabilitation (“CDCR”) must be
dismissed because the SAC does not allege any claims against
them. Id. Defendants argue that plaintiff's
common law claims are barred by the Government Claims Act and
Labor Code section 3601. Finally, they assert plaintiff
failed to state a plausible claim against any of the
individual state defendants under any of her asserted
theories, and that no claims are alleged against CDCR or
Gates. Id. Moving defendants argue no leave to amend
should be granted because the current pleading constitutes
plaintiff's third attempt to state claims against the
defendants, and it is apparent that she is unable to state
viable claims. Id.
Legal Standards Governing Motions to Dismiss ...