Nonnette v. Newsom, Case No. 5:20-cv-01218-CJC (MAA)

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
• Writing for the Court: MARIA A. AUDERO UNITED STATES MAGISTRATE JUDGE
• Parties: NARVIS NONNETTE, Plaintiff, v. GAVIN NEWSOM et al, Defendants.
• Decision Date: 13 April 2021
• Docket Number: Case No. 5:20-cv-01218-CJC (MAA)

NARVIS NONNETTE, Plaintiff,
v.
GAVIN NEWSOM et al, Defendants.

Case No. 5:20-cv-01218-CJC (MAA)

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

April 13, 2021

MEMORANDUM DECISION AND ORDER DISMISSING SECOND AMENDED COMPLAINT WITH LEAVE TO AMEND

I. INTRODUCTION

On June 16, 2020, the Court received a pro se putative class action lawsuit filed by Plaintiffs Narvis Nonnette, William Roberts, and Richard Cooper, alleging violations of their civil rights pursuant to 42 U.S.C. § 1983. (Compl., ECF No. 1.) After Plaintiff Roberts severed his claims on August 31, 2020 (ECF No. 14) and Plaintiff Cooper was terminated on October 16, 2020 (ECF No. 21), the only remaining Plaintiff in this case is Plaintiff Nonnette ("Plaintiff"). Plaintiff filed a Request to Proceed Without Prepayment of Filing Fees on September 15, 2020 (ECF No. 16), which the Court granted on September 18, 2020 (ECF No. 17).

On October 22, 2020, the Court screened and dismissed the Complaint with leave to amend. (Order Dismiss. Compl., ECF No. 22.) On February 3, 2021, the Court received Plaintiff's First Amended Complaint ("FAC"). (FAC, ECF No. 29.)

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On February 19, 2021, the Court received a second document entitled "First Amended Complaint," which differed from the FAC and therefore was docketed as Plaintiff's Second Amended Complaint ("SAC"). (SAC, ECF No. 31.)

The Court has screened the SAC, and dismisses it with leave to amend for the reasons stated below. No later than May 13, 2021, Plaintiff must either: (1) file a Third Amended Complaint; or (2) advise the Court that Plaintiff no longer intends to pursue this lawsuit.

II. PLAINTIFF'S ALLEGATIONS AND CLAIMS¹

A. Defendants

The SAC is filed against: (1) Governor Gavin Newsom, governor of the State of California; (2) Doe #1; (3) Sheriff Chad Bianco, Sheriff of Riverside County; and (4) Doe #2 (each, a "Defendant" and collectively, "Defendants"). (SAC 3-4.)² Each Defendant is sued in his or her individual and official capacities. (Id.)

B. Claim I

On March 19, 2020, Defendant Newsom issued an "illegal and unconstitutional" Executive Order to the state Judicial Council, giving them "carte blanche" discretion to make any modifications to legal practice and procedure necessary in order to continue conducting business. (Id. at 6-7.) Defendant Doe #1 assisted Defendant Newsom. (Id. at 4.) Plaintiff asserts that Defendant Newsom "seized control of the judicial and legislative branches of California government by empowering himself to govern by decree and suspend any laws that stand in his way." (Id. at 9.) Plaintiff contends that even if the language in the Emergency

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Service Act ("Act") is interpreted as giving Defendant Newsom legislative powers, then the Act itself must be struck down as unconstitutional in violation of federal and state constitutions and under the separation of powers doctrine. (Id.)

Armed with the Executive Order from Defendant Newsom, the Judicial Council issued an "illegal and unconstitutional" statewide order on March 23, 2020 to the judicial branch, including all superior courts, continuing all criminal matters indefinitely and eliminating all statutory timelines for prosecuting a criminal case—specifically, the "10-court-day" and "60-calendar-day" rules. (Id. at 7-8.) As a result, the California court system was "closed" between March 19, 2020 to June 17, 2020 ("Closure"). (Id. at 8.)

Plaintiff asserts that by issuing the Executive Order, Defendant Newsom "ordered and set in motion" the deprivation of Plaintiff's rights, as follows. First, the Riverside County Superior Court ("Superior Court") held proceedings without Plaintiff present during the Closure, and without providing notice to Plaintiff or his counsel, in violation of the Sixth Amendment and Fourteenth Amendment Due Process Clause, and also in violation of Plaintiff's Sixth Amendment right to counsel. (Id. at 5, 8-9.) Second, the Superior Court summarily waived Plaintiff's Sixth Amendment right to a speedy trial without Plaintiff's consent. (Id. at 5, 9.) Third, Plaintiff was denied all privileges and immunities as a United States citizen. (Id. at 5-6, 9.) Fourth, Plaintiff was denied equal protection of the laws, in violation of the Fourteenth Amendment. (Id. at 6, 9.)

C. Claim II

Defendant Bianco ordered and set in motion "detaining and clustering of Plaintiff with other pre-trial detainees in small living spaces waiting for Coronavirus to explode." (Id. at 11.) On April 10, 2020, Defendant Bianco ordered a lockdown of all Riverside County Jail inmates, including Plaintiff, due to the Coronavirus, which remains in effect as of February 8, 2021. (Id. at 12.) Defendant Bianco failed

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to put in place any type of safety measures that would slow or stop the spread of infection. (Id.) Defendant Bianco has turned Riverside County Jail into a "superspreader distribution center." (Id. at 13.) Defendant Doe #2 assisted Defendant Bianco. (Id. at 4.)

Defendant Bianco has not followed this Court's order to provide social distancing. (Id. at 13.) On court days, inmates are: packed into holding cells to await transport to the court; chained up and packed in "side by side like sardines" in the bus; unloaded from the buses and packed into court holding cells; and are only socially-distanced once they enter the courtroom. (Id.) Dorms consist of ten-man and twenty-man units and bunk beds are space approximately twenty inches apart and twenty inches above. (Id.) Inmates are ordered to their beds at 11 p.m. and program resumes the following day at 8 a.m., so inmates are forced to spend nine hours each day confined to their beds in close proximity with each other. (Id. at 14.)

On October 28, 2020, Plaintiff was moved from cell E1-18 to E3-56. (Id.) Plaintiff did not request a cell move. (Id.) Plaintiff's new cellmate was Scott Lapresle. (Id. at 15.) That night Plaintiff could not sleep because Mr. Lapresle was breathing and snoring so loudly it sounded like he was dying. (Id.) When Plaintiff asked Mr. Lapresle about his breathing the next morning, Mr. Lapresle said it was due to growths on his heart. (Id.) A few days later, medical staff came to give the over fifty inmates Coronavirus tests, which are given every two weeks. (Id.) Medical staff gave Plaintiff a Coroavirus test, but did not ask Mr. Lapresle to test. (Id.) When Plaintiff asked Mr. Lapresle why he did not take the test, Mr. Lapresle said they "they no [sic] better than to ask him." (Id.)

On November 8, 2020, Mr. Lapresle was breathing erratically and struggling to get air, wheeled himself to the nurses' station, and was rushed to an outside hospital at Moreno Valley. (Id. at 15-16.) At 11:30 p.m. that night, Plaintiff was called to the nurses' station and informed that Mr. Lapresle had a serious case of Coronavirus and was on a respirator and that Plaintiff had to test for the virus. (Id.

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at 16.) Plaintiff was tested and placed into quarantine; the test came back positive five days later. (Id.) Plaintiff was transferred to Banning County Jail for an additional seventeen days of quarantine and treatment. (Id.) Plaintiff asserts that the unrequested cell move from a Coronavirus-free cell to a Coronavirus-infected cell with Mr. Lapresle repeatedly refusing the test demonstrates a deliberate indifference to Plaintiff's safety and well-being and is punishment without due process of law. (Id.)

Plaintiff asserts a violation of the Eighth Amendment right against cruel and unusual punishment and Fifth Amendment guarantee of due process. (Id. at 11.)

D. Relief Requested

Plaintiff seeks: (1) damages in excess of $1,000,000; (2) a declaration affirming that a state governor cannot suspend Plaintiff's constitutional rights as a United States citizen for any reason, "Coronavirus or otherwise"; (3) a declaration affirming that a state governor cannot steal liberty without due process of law for any reason "pandemic or otherwise"; (4) a declaration that a state governor cannot change the law, and that only the legislature can; and (5) a preliminary injunction staying all state court proceedings pending federal court adjudication of this case. (Id. at 17-18.)

III. LEGAL STANDARD

Federal courts must conduct a preliminary screening of any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity (28 U.S.C. § 1915A), or in which a plaintiff proceeds in forma pauperis (28 U.S.C. § Section 1915(e)(2)(B)). The court must identify cognizable claims and dismiss any complaint, or any portion thereof, that is: (1) frivolous or malicious, (2) fails to state a claim upon which relief may be granted, or (3) seeks

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b).

When screening a complaint to determine whether it fails to state a claim upon which relief can be granted, courts apply the Federal Rule of Civil Procedure³ 12(b)(6) ("Rule 12(b)(6)") standard. See Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (applying the Rule 12(b)(6) standard to 28 U.S.C. § Section 1915A); Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012) (applying the Rule 12(b)(6) standard to 28 U.S.C. § 1915(e)(2)(B)(ii)). To survive a Rule 12(b)(6) dismissal, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Although "detailed factual allegations" are not required, "an unadorned, the-defendant-unlawfully-harmed-me accusation"; "labels and conclusions"; "naked assertion[s] devoid of further factual enhancement"; and "[t]hreadbare recitals of the elements of a cause of action, supported by mere...