The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 JUSTIN SALMEN, Case No.: 23-CV-1403 JLS (DEB)
12 Plaintiff,
ORDER (1) ADOPTING REPORT
13 v. AND RECOMMENDATION ON
DEFENDANT’S MOTION TO
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DISMISS; (2) GRANTING THE
15 L. TERRONEZ, PARTIES’ REQUESTS FOR
16 Defendant. JUDICIAL NOTICE; AND
(3) GRANTING IN PART AND
17 DENYING IN PART DEFENDANT’S
MOTION
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19 (ECF Nos. 8, 8-2, 11, 14)
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21 Presently before the Court are Defendant L. Terronez’s Motion to Dismiss Plaintiff’s
22 Complaint (“Mot.,” ECF No. 8) and her supporting Memorandum of Points and
23 Authorities (“Mem.,” ECF No. 8-1). Plaintiff Justin Salmen filed an Opposition to the
24 Motion (“Opp’n,” ECF No. 10), and Defendant submitted a Reply (“Reply,” ECF No. 12).
25 Additionally, both Parties submitted Requests for Judicial Notice (“Def.’s RJN,” ECF
26 No. 8-2) (“Pl.’s RJN,” ECF No. 11), and Defendant filed Objections to Plaintiff’s Request
27 (“Def.’s Objs.,” ECF No. 13). Magistrate Judge Daniel E. Butcher has issued a Report and
28 Recommendation (“R&R,” ECF No. 14) advising the Court to grant the Requests for
1 Judicial Notice and to grant in part and deny in part Defendant’s Motion. Neither Party
2 filed objections to the R&R.
3 BACKGROUND
4 Judge Butcher’s R&R contains an accurate and thorough recitation of this case’s
5 background, see R&R at 1–2, which this Order incorporates by reference.
6 LEGAL STANDARD
7 Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district
8 court’s duties in connection with a magistrate judge’s R&R. The district court must “make
9 a de novo determination of those portions of the report or specified proposed findings or
10 recommendations to which objection is made,” and “may accept, reject, or modify, in
11 whole or in part, the findings or recommendations made by the magistrate judge.”
12 28 U.S.C. § 636(b)(1); see also United States v. Raddatz, 447 U.S. 667, 673–76 (1980);
13 United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). However, in the absence of
14 timely objections, the Court “need only satisfy itself that there is no clear error on the face
15 of the record in order to accept the recommendation.” Fed. R. Civ. P. 72 advisory
16 committee’s note (citing Campbell v. U.S. Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974)).
17 ANALYSIS
18 No party filed timely objections to the R&R. See R&R at 11 (allowing objections
19 to be filed on or before August 14, 2024). The Court thus reviews the R&R for clear error.
20 I. Requests for Judicial Notice
21 The Parties seek judicial notice of weather-related facts. Defendant asks the Court
22 to judicially notice (1) the location of Richard J. Donovan Correctional Center (where the
23 alleged events took place); and (2) the temperature at the Center on May 21, 2023 (the date
24 in question). Id. at 3 & n.3. Defendant provides a “printout from www.almanac.com,”
25 indicating that it was between 57.9- and 71.1-degrees Fahrenheit that day. Id. at 3–4.
26 Meanwhile, Plaintiff requests judicial notice of the UV Index rating for May 21, 2023, and
27 provides a “screenshot from the word-weather.info website” to that effect. Id. at 4–5.
28 / / /
1 The R&R advises the Court to grant both Requests for Judicial Notice on the ground
2 that weather data, like temperatures and UV Index ratings, “can be accurately and readily
3 determined from sources whose accuracy cannot reasonably be questioned.” Id. at 3–5
4 (quoting Fed. R. Evid. 201(b)).
5 II. Defendant’s Motion to Dismiss
6 Defendant moves to dismiss Plaintiff’s Complaint (“Compl.,” ECF No. 1)—which
7 brings claims under 42 U.S.C § 1983—on three grounds: “(1) it does not plead a
8 cognizable Eighth Amendment violation; (2) qualified immunity protects [Defendant]
9 from suit; and (3) [Defendant] is impermissibly sued in her official capacity.” Id. at 3. The
10 Court reviews the R&R’s discussion of each issue in turn.
11 A. Eighth Amendment Claim
12 The R&R notes that pleading an Eighth Amendment conditions-of-confinement
13 claim requires a plaintiff to allege that “prison officials acted with deliberate indifference
14 to a substantial risk of serious harm,” an element that has objective and subjective
15 components. Id. at 5 (internal quotation marks omitted) (quoting Frost v. Agnos,
16 152 F.3d 1124, 1128 (9th Cir. 1998)). The objective prong demands that “conditions of
17 confinement pose ‘a substantial risk of serious harm.’” Id. (quoting Farmer v. Brennan,
18 511 U.S. 825, 834 (1994)). As to the subjective piece, a plaintiff “must prove the prison
19 official inflicted the deprivation with a ‘sufficiently culpable state of mind,’ that is, with
20 ‘deliberate indifference to [the plaintiff’s] health or safety.’” Id. at 7 (alteration in original
21 and one set of internal quotation marks omitted) (quoting Farmer, 511 U.S. at 834).
22 Defendant first argues the Complaint fails to satisfy the objective side of the Eighth-
23 Amendment equation. Id. at 5. Defendant allegedly caused Plaintiff to suffer a second-
24 degree burn by forcing him to sit on a metal bench in the sun, even though Plaintiff had
25 pointed out the burn risk to Defendant. See id. at 6. The R&R states that a “second-degree
26 burn is serious,” and that the Complaint’s allegations—if true—suffice to show Defendant
27 “created a substantial risk of that harm.” Id. (citing cases). Defendant contends that the
28 purportedly mild temperature (“a high of 71 degrees”) makes Plaintiff’s version of events
1 implausible. Id. But, per the R&R, this argument cannot prevail at the pleading stage
2 given Plaintiff’s allegations of prolonged sun exposure. See id. The R&R similarly rejects
3 another of Defendant’s arguments—that Plaintiff was clothed and unrestrained—on the
4 ground that such issues of fact are not resolvable at the motion-to-dismiss stage. Id.
5 Next, Defendant targets the test’s subjective prong. See id. at 7. Defendant allegedly
6 “‘ordered’ [Plaintiff] to sit ‘directly in the sun with no shade’” and “failed to abate” the
7 risk of sunburn even after Plaintiff said he was “‘burn[ing] up’ from the direct sun
8 exposure.” Id. at 7 (quoting Compl. at 3). The R&R concludes these allegations suffice
9 for purposes of Federal Rule of Civil Procedure 12(b)(6) and advises the Court to deny the
10 Motion as to Plaintiff’s Eighth Amendment claim. See id.
11 B. Qualified Immunity
12 Additionally, Defendant asserts qualified immunity. See id. The R&R explains that
13 “[q]ualified immunity shields government actors from civil liability under 42 U.S.C.
14 § 1983 unless ‘(1) they violated a federal statutory or constitutional right, and (2) the
15 unlawfulness of their conduct was clearly established at the time.’” Id. at 8 (one set of
16 internal quotation marks omitted) (quoting D.C. v. Wesby, 583 U.S. 48, 62–63 (2018)).
17 The R&R further notes that qualified immunity applies when existing precedent “squarely
18 governs” the facts at issue and “place[s] the statutory or constitutional question beyond
19 debate.” Id. (first quoting Kisela v. Hughes, 584 U.S. 100, 104 (2018); and then quoting
20 White v. Pauly, 580 U.S. 73, 79 (2017)).
21 The R&R recommends denying Defendant’s qualified immunity argument. See id.
22 at 9. Defendant allegedly subjected Plaintiff to sun exposure unnecessarily; she was
23 purportedly motivated by a desire to deprive Plaintiff of the chance to send a photograph
24 to his family, not by “penological or safety” concerns. Id. And, per the R&R, decades-old
25 decisions from both the Supreme Court and the Ninth Circuit clearly establish that such
26 conduct violates the Eighth Amendment. Id. (first citing Hope v. Pelzer, 536 U.S. 730, 738
27 (2002); and then citing Johnson v. Lewis, 217 F.3d 726, 732 (9th Cir. 2000)). The R&R
28 also rejects Defendant’s attempt to distinguish these authorities on the ground that the
1 Complaint alleges only “temporary deprivations,” as Plaintiff claims the exposure lasted
2 long enough to cause a second-degree burn. Id. at 9 n.4 (quoting Mem. at 6).
3 C. Plaintiff’s Official Capacity Claim
4 Finally, Defendant seeks to dismiss Plaintiff’s “claim against her in her official
5 capacity.” Id. Defendant argues said claim is barred by the Eleventh Amendment. See id.
6 The R&R notes that “[a] suit against a state official in his or her official capacity . . . is no
7 different from a suit against the State itself,” id. (quoting Will v. Michigan Dep’t of State
8 Police, 491 U.S. 58, 71 (1989)), and that the “Eleventh Amendment bars suits for money
9 damages against states and their agencies under § 1983,” id. at 10. As Plaintiff—who is
10 suing Defendant in both her individual and official capacity—seeks compensatory
11 damages, and California has not waived its Eleventh Amendment immunity with respect
12 to § 1983 claims brought in federal court, the R&R concludes Plaintiff’s official-capacity
13 claim is jurisdictionally barred. See id. The R&R further advises the Court to dismiss
14 Plaintiff’s official capacity claim with prejudice because amendment could not cure the
15 above jurisdictional defect.1 See id.
16 The Court finds no clear error in the R&R. Accordingly, the Court ADOPTS the
17 R&R and GRANTS IN PART AND DENIES IN PART Defendant’s Motion.
18 CONCLUSION
19 In light of the foregoing, the Court ADOPTS Judge Butcher’s R&R (ECF No. 14),
20 GRANTS the Parties’ respective Requests for Judicial Notice, and GRANTS IN PART
21 AND DENIES IN PART Defendant’s Motion (ECF No. 8). Plaintiff’s official capacity
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26 1 Typically, dismissals for lack of subject matter jurisdiction should be without prejudice. See, e.g.,
Freeman v. Oakland Unified Sch. Dist., 179 F.3d 846, 847 (9th Cir. 1999). However, the Ninth Circuit
27 has found that an action can appropriately be dismissed with prejudice on Eleventh Amendment grounds
when providing leave to amend would be futile. See, e.g., Doe v. Regents of the Univ. of Cal.,
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1 1983 claim is thus DISMISSED WITH PREJUDICE; the Motion is otherwise
2 || DENIED.
3 IT IS SO ORDERED.
4 ||Dated: August 19, 2024 tt
5 jen Janis L. Sammartino
6 United States District Judge
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