Rico v. Ducart, 2:19-cv-1989 KJM DB P

• Decision Date: 05 February 2020
• Docket Number: No. 2:19-cv-1989 KJM DB P,2:19-cv-1989 KJM DB P
• Parties: JORGE ANDRADE RICO, Plaintiff, v. CLARK E. DUCART, et al., Defendants.
• Court: U.S. District Court — Eastern District of California

JORGE ANDRADE RICO, Plaintiff, v. CLARK E. DUCART, et al., Defendants.

No. 2:19-cv-1989 KJM DB P

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

February 5, 2020

FINDINGS AND RECOMMENDATIONS

Plaintiff is a state prisoner proceeding through counsel with a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff alleges that use of the Guard One security and welfare check system in the Security Housing Unit at Pelican Bay State Prison in 2017 and 2018 violated his Eighth Amendment rights. On January 31, 2020, this court heard argument on defendants' motion to dismiss the complaint on the grounds that they are protected by qualified immunity. Deputy Attorney General Jeffrey Fisher appeared for defendants. Attorney Kate Falkenstien appeared for plaintiff. For the reasons set forth below, this court will recommend defendants' motion be granted.

BACKGROUND

I. Implementation of Guard One at Pelican Bay State Prison

Coleman v. Newsom is a long-standing class action involving California's provision of health care to seriously mentally ill prison inmates. Coleman, No. 2:90-cv-0520 KJM DB P (E.D. Cal.).¹ In 1995, the court found defendants in that case in violation of their Eighth Amendment duty to provide these inmates with access to adequate mental health care. Coleman, 912 F. Supp. 1282 (E.D. Cal.). One aspect of mentally ill inmates' treatment that the court found inadequate was suicide prevention. Id. at 1315. Over more than two decades, the court has been overseeing defendants' development and implementation of remedies for these Eighth Amendment violations with the assistance of a Special Master.

In February 2015, Judge Mueller² adopted a recommendation of the Special Master's expert on suicide prevention. Judge Mueller ordered defendants to implement the Guard One system for conducting security/welfare checks in the California prisons' security housing units ("SHUs") and administrative housing units ("ASUs"). Coleman, No. 2:90-cv-0520 KJM DB P (Feb. 3, 2015 Order (ECF No. 5271).) Defendants were ordered to conduct the Guard One checks every thirty minutes.

In late 2015, the parties filed a stipulation regarding the use of Guard One in the SHU at PBSP. The stipulation resulted from complaints by inmates in the PBSP SHU that the Guard One checks were interfering with their sleep. Judge Mueller signed that stipulated order. It states:

Because of the unique design of the Pelican Bay State Prison Security Housing Unit (SHU), Security/Welfare Checks utilizing Guard One shall temporarily be conducted only once per hour during First Watch (2200 hours to 0600 hours) while Defendants work to assess and possibly reduce the noise caused by the opening and closing of the Unit's pod doors. Defendants since early August 2015 have been conducting twice-hourly Security/Welfare Checks at the Pelican Bay SHU, including during First Watch, in compliance with the Court's February 3, 2015 Order (Docket # 5271). Plaintiffs have requested this temporary change in the frequency of First Watch Security/Welfare Checks at the Pelican Bay SHU.

Id. (Dec. 28, 2015 Order (ECF No. 5393).)

The stipulation/order then explained that defendants would investigate the pod-door noise and report back regarding any changes to the security/welfare checks that might be made to reduce that noise.

In September 2016, Judge Mueller adopted another stipulation and entered an order requiring the use of Guard One during first watch (10:00 p.m. to 6:00 a.m.) only once per hour in the PBSP SHU on a permanent basis. That stipulation/order states:

In response to concerns and suggestions raised by Plaintiffs' counsel and the Special Master that the welfare checks were disturbing inmates' sleep, the parties agreed to assess the noise levels at the Pelican Bay SHU. On December 28, 2015, this Court approved the parties' stipulation that Security/Welfare checks utilizing Guard One at the Pelican Bay SHU temporarily be conducted only once per hour during First Watch (2200 hours to 0600 hours), while Defendants worked to assess and possibly reduce the noise caused by the opening and closing of the Unit's pod doors. Order, Dec. 28, 2015, ECF No. 5393. That stipulation expired by its terms on May 1, 2016, but was extended by further stipulations of the parties and orders of the Court until August 31, 2016. [Citations omitted.]

CDCR completed its assessment of the noise issues raised by Plaintiffs and submitted a report to the Special Master and Plaintiffs on July 1, 2016. In response to allegations raised by plaintiffs' counsel, CDCR instituted several measures to reduce the noise generated by the security/welfare checks. Without agreeing that the Security/Welfare checks utilizing Guard One at the Pelican Bay SHU create excessive noise levels or cause any harm to inmates, CDCR has agreed to conduct Security/Welfare checks utilizing Guard One at the Pelican Bay SHU only once per hour during First Watch (2200 hours to 0600 hours) on a permanent basis.

Id. (Sept. 1, 2016 Order (ECF No. 5487).)

II. Plaintiff's Challenges to the Use of Guard One

This is plaintiff's second case challenging the use of Guard One in the SHU at PBSP. In his first case, plaintiff complained of the use of Guard One from 2014 to 2016. Rico v. Beard, No. 2:17-cv-1402 KJM DB P (E.D. Cal.). In that case, plaintiff sought relief from three sets of defendants: (1) high-level prison officials ("high level supervisory defendants"); (2) correctional officials who reviewed plaintiff's prison appeals ("appeals review defendants"); and (3) correctional officers who conducted the Guard One checks ("floor officer defendants").

Defendants moved to dismiss the first Rico action based, in part, on the grounds that they were protected by qualified immunity. Judge Mueller held the law was clearly established in2014 that excessive noise causing sleep deprivation can violate the Eight Amendment. Rico v. Beard, 2019 WL 1036075, at *4 (E.D. Cal. Mar. 5, 2019). She concluded that: (1) the high level supervisory defendants were protected by qualified immunity because they were only complying with a facially valid order in Coleman v. Newsom requiring implementation of the Guard One checks; and (2) the appeals review defendants and the floor officer defendants were not so protected because their use of, or knowledge of the use of, the Guard One checks in a way that created excessive noise fell outside the scope of the Coleman order. Id. at *2-5. Defendants appealed this second holding. It remains pending in the Ninth Circuit. Rico v. Ducart, No. 19-15541.

In the present case, plaintiff Rico complains about the use of Guard One at the PBSP SHU between September 2017 and April 2018. This complaint raises one issue - PBSP's use of the Guard One system during first watch (10:00 p.m. to 6:00 a.m.) every thirty minutes. According to plaintiff, this use violated his Eighth Amendment rights because it violated the court's September 2016 order in Coleman requiring PBSP to use Guard One in the SHU only every hour during first watch.³

MOTION TO DISMISS

I. Legal Standards

A. Standard of Review on Motion to Dismiss

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for motions to dismiss for "failure to state a claim upon which relief can be granted." "To survive a motion to dismiss, 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) (citing Bell Atlantic 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. The court must accept as true the allegations of the complaint,Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), and construe the pleading in the light most favorable to plaintiff, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

A motion to dismiss for failure to state a claim should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). In ruling on a motion to dismiss pursuant to Rule 12(b)(6), the court "may 'generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice.'" Outdoor Media Grp., Inc. v. City of Beaumont, 506 F.3d 895, 899 (9th Cir. 2007) (citing Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007)).

B. Eighth Amendment Deliberate Indifference

Under the Eighth Amendment, "prison officials are . . . prohibited from being deliberately indifferent to policies and practices that expose inmates to a substantial risk of serious harm." Parsons v. Ryan, 754 F.3d 657, 677 (9th Cir. 2014); see also Farmer v. Brennan, 511 U.S. 825, 847 (1994) (prison official violates Eighth Amendment if he or she knows of a substantial risk of serious harm to an inmate and fails to take reasonable measures to avoid the harm). Deliberate indifference occurs when "[an] official acted or failed to act despite his knowledge of a substantial risk of serious harm." Farmer, 511 U.S. at 841. Thus, a prisoner may state "a cause of action under the Eighth Amendment by alleging that [prison officials] have, with deliberate indifference, exposed him to [conditions] that pose an unreasonable risk of serious damage to his future health." Helling v. McKinney, 509 U.S. 25, 35 (1993).

"The second step, showing 'deliberate indifference,' involves a two-part inquiry." Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010). "First, the inmate must show that the prison officials were aware of a 'substantial risk of serious harm' to an inmate's health or safety." Id. (quoting Farmer, 511 U.S. at 837). "This part of [the] inquiry may be...