Suarez v. Beard

Decision Date19 September 2019
Docket NumberNo. 2:18-cv-0340 KJM DB P,2:18-cv-0340 KJM DB P
PartiesMAHER CONRAD SUAREZ, Plaintiff, v. JEFFREY BEARD, et al., Defendants.
CourtU.S. District Court — Eastern District of California

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 check system caused him sleep deprivation in violation of the Eighth Amendment. Before the court are defendants' motion to dismiss, defendants' motion to stay these proceedings, and plaintiff's motion to substitute a party. For the reasons set forth below, this court will recommend: (1) the motion to dismiss be granted in part, denied in part, and stayed in part; (2) the motion to stay be granted; and (3) the motion to substitute a party be denied without prejudice.

I. Plaintiff's Allegations

This case is proceeding on plaintiff's second amended complaint ("SAC") filed November 17, 2017. (ECF No. 53.) Plaintiff alleges that starting in August 2015 when he was incarcerated in the Security Housing Unit ("SHU") at Pelican Bay State Prison ("PBSP") he was subjected to frequent security checks that caused loud sounds which prevented him from sleeping. The security checks were implemented through the Guard One system, which requires officers to strike a metal plate on each cell door in the SHU with a metal pipe. The metal pipe has an electronic sensor that records each such contact. Plaintiff identifies numerous defendants who he classifies into three groups: PBSP floor officers, PBSP high-level officers, and state-level officers employed by the California Department of Corrections and Rehabilitation ("CDCR"). The court refers to those groups herein as the floor officer defendants, the appeals review defendants, and the high-level supervisory defendants.1

In December 2015, plaintiff was transferred out of PBSP. Since then, plaintiff has not been subjected to Guard One checks. Plaintiff seeks injunctive and declaratory relief and damages.

II. Procedural Background

Plaintiff initiated this action in pro per by filing a complaint in 2015 in the Northern District of California. In October 2016, defendants filed a motion to dismiss and for summary judgment and moved for a stay of these proceedings pending resolution of the motion. (ECF Nos. 28-30.) The court granted a stay and denied the motion to dismiss/for summary judgment without prejudice. (ECF Nos. 33, 38.) In June 2017, defendants filed a second motion for summary judgment. (ECF No. 39.) That motion was also denied without prejudice. (ECF No. 51.) In addition, on September 19, 2017, the judge stayed discovery "pending the determination of whether the cases will remain in NDCA." (Id.)

In 2017, the court appointed counsel for plaintiff. Plaintiff filed his SAC on November 17, 2017. (ECF No. 53.)

On January 3, 2018, defendants filed a motion to dismiss the SAC. (ECF No. 58.) Defendants argue that plaintiff's action is precluded because the Guard One system was required in the PBSP SHU by an order issued by Judge Mueller in the class action Coleman v. Newsom, No. 2:90-cv-0520 KJM DB P (E.D. Cal.). Shortly after the parties argued the motion in the Northern District, the judge transferred the case to the Eastern District. In March 2018, this case was related to Coleman and to another case involving use of the Guard One system in the California prisons. Since then, several other cases challenging use of the Guard One system have been related to Coleman as well.

From September 2018 through June 2019, the parties conducted some discovery. (See Bajwa Decl. (ECF No. 90-1), ¶¶ 4-6.)

In March 2019, Judge Mueller granted in part and denied in part the defendants' motion to dismiss in Rico v. Beard, No. 2:17-cv-1402 KJM DB P (E.D. Cal.). She dismissed plaintiff's claims for injunctive and declaratory relief because he was no longer housed in the SHU or Administrative Segregation Unit ("ASU") where Guard One checks were used. Judge Mueller held that the Guard One system was not, on its face, unconstitutional. On that basis, she distinguished the high-level supervisory defendants, who only bore responsibility for instituting the Guard One system as required by the order in Coleman, and the other two categories of defendants, who were responsible for the day-to-day implementation of the Guard One system. Judge Mueller dismissed the high-level supervisory defendants because they are protected by qualified immunity. She held that the appeals review defendants and floor officer defendants were not so protected.

At this court's request, the parties filed briefs regarding the effects of Judge Mueller's decision in Rico on defendants' motion to dismiss in the present case. (ECF Nos. 85, 86, 87.) When the Rico defendants filed an interlocutory appeal of Judge Mueller's order, this court ordered the parties to state their positions on a stay of these proceedings pending the Ninth

////Circuit's decision on the qualified immunity issues in Rico.2 Shortly thereafter, defendants filed a motion for a stay. (ECF No. 90.) Plaintiff opposes a stay. (ECF No. 92.)

Most recently, on July 22, 2019, plaintiff filed a motion to substitute a recently deceased defendant with the administrator of her estate. (ECF No. 95.) Defendants have not opposed that motion.


Initially, this court must determine whether to reach any of the issues raised by the motion to dismiss or whether to solely address the motion to stay pending an appellate decision in Rico. The issues raised by the Rico defendants in their interlocutory appeal are whether the appeals review defendants and floor officer defendants in that case are entitled to qualified immunity. Therefore, to the extent this action should be stayed, it need only be stayed with respect to the proceedings on those issues. In their motion to dismiss, defendants raise additional issues. In addition to qualified immunity for appeals review defendants and floor officer defendants, they argue: (1) the high-level supervisory defendants are protected by qualified immunity; (2) plaintiff's claims are precluded by principles of judicial comity; and (3) the court should decline to exercise supplemental jurisdiction over the state law claims. While raised indirectly in their reply, defendants also contend plaintiff no longer has standing to seek injunctive or declaratory relief.

As discussed below, this court finds the best course at this juncture is a stay of proceedings on the claims potentially affected by the pending interlocutory appeal in Rico and resolution of the remaining issues raised by defendants' motion to dismiss.

I. Motion to Dismiss

In the following section, this court addresses a stay of these proceedings on the issues likely affected by the Rico appeal. Because the court will recommend a stay on the claims affected by those issues, in this section, the court addresses defendants' motion to dismiss on the grounds that will be unaffected by the Rico appeal.

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. Analysis
1. Qualified Immunity

As explained above, the court considers here the issue of qualified immunity for just one class of defendants - the high level supervisory defendants. Plaintiff identifies those defendants as: (1) Voong, Chief of the Office of Appeals; (2) T. Lee, Appeals Examiner in the Office of Appeals at CDCR; (3) Stainer, Assistant Director and Director of Adult Institutions at CDCR from 2013 to 2014; (4) Harrington, Direction of the Division of Adult Institutions from 2014 to March 2016; (5) Allison, Director of the Division of Adult Institutions at CDCR since April 2016; (6) Beard, Secretary of CDCR from December 2012 through December 2015; and (7)

////Kernan, Secretary of CDCR since January 2016. (See ECF No. 86 at 2 n. 3; ECF No. 53 at 8, ¶¶ 82-88.)

In Rico, the court held that the high level supervisory defendants, most of whom are the same as those identified here, were entitled to qualified immunity because they did nothing more than carry out a facially valid order by instituting the Guard One system. Rico, No. 2:17-cv-1402 KJM DB P (Order filed Mar. 5, 2019 (ECF No. 102) at 3). Plaintiff argues that his allegations against the high level supervisory defendants in this case are distinguishable from those in Rico. He argues that he has plead these defendants were involved in not only the initial institution of the Guard One...

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