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Devore v. California Department of Corrections and Rehabilitation

United States District Court, E.D. California

December 13, 2019

DAWN DEVORE, Plaintiff,
v.
CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS

          ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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.

         I. BACKGROUND

         Plaintiff 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 1.

         A. Allegations of the Complaint

         Plaintiff 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.

         Because 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. Id.

         When 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. Id.

         Plaintiff 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.

         Plaintiff 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.

         In 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. Id.

         On 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.

         On 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.

         Dr. 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. Id.

         The SAC 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.

         B. Motions to Dismiss

         Defendants 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.[1] 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.

         II. ANALYSIS

         A. Legal Standards Governing Motions to Dismiss ...


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