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Gutierrez v. Mono County Sheriff's Dept.

California Court of Appeals, Third District, Monoc
Apr 29, 2009
No. C058201 (Cal. Ct. App. Apr. 29, 2009)

Opinion


RAYMOND V. GUTIERREZ, Plaintiff and Appellant, v. MONO COUNTY SHERIFF’S DEPARTMENT et al., Defendants and Respondents. C058201 California Court of Appeal, Third District, Mono April 29, 2009

NOT TO BE PUBLISHED

Super. Ct. No. CV15855

BUTZ, J.

This is an appeal by an incarcerated, pro se litigant from the trial court’s dismissal of his personal injury complaint after it sustained a defense demurrer.

Plaintiff Raymond V. Gutierrez contends the trial court erred in sustaining without leave to amend the demurrer by defendants Mono County Sheriff’s Department (the Department), its sheriff coroner, and two individual sheriff’s deputies. We agree that plaintiff should have been granted leave to amend his complaint as to the two individual sheriff’s deputies. Accordingly, we shall reverse the judgment in favor of those defendants, order the trial court to allow plaintiff to amend his complaint as to those two defendants only, and otherwise affirm the judgment.

PROCEDURAL BACKGROUND

On appeal from a judgment dismissing an action after sustaining a demurrer without leave to amend, the standard of review is well settled. We give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126 (Zelig).) Further, we treat the demurrer as admitting all material facts properly pleaded, but do not assume the truth of contentions, deductions or conclusions of fact or law. (Ibid.; Aubry v. Tri City Hospital Dist. (1992) 2 Cal.4th 962, 966–967.) With these standards in mind, we turn to the complaint.

In his initial complaint for personal injury against the Department, plaintiff alleged that, while he was a detainee at the Mono County Jail, he was instructed by sheriff’s deputy Ray Robles “to get my stuff and move out of A Block.” Robles then threw (or had previously thrown) shampoo bottles onto the hallway floor, and had failed to clean up the spilled shampoo. As plaintiff was carrying his mattress during the move, he fell on the wet floor just outside the door to A Block, injuring his thigh, knee, tailbone, head and lower stomach.

Plaintiff is currently incarcerated in Arizona.

Plaintiff’s complaint also names sheriff’s deputy Joe Burbine, but makes no express allegations as to Burbine, other than Burbine was present when plaintiff was told to get his stuff and move out of A Block.

The trial court sustained defendants’ demurrer to the complaint with leave to amend on the ground it failed to state a viable cause of action, was uncertain, and failed to adequately identify the defendants.

Plaintiff then filed (the operative) amended complaint, in which he named as defendants the Department, its then sheriff-coroner, Daniel A. Paranick (Ret.), and two individual sheriff’s deputies, Ray Robles and Joe Burbine.

The amended complaint repeats plaintiff’s allegation that Robles threw a shampoo bottle on the jail floor, spilling its contents, and thereafter failed to clean it up or warn others of the danger, causing plaintiff to fall and injure himself. Plaintiff also alleged that the Department produced a dangerous condition on its property and/or failed to remedy the dangerous condition (i.e., the wet floor) of which it had notice, and that Paranick, as an elected county official “is legally responsible for the overall operation of the jail,” including Robles’s conduct. As to defendant Burbine, plaintiff alleges Burbine knew about the dangerous condition Robles created by spilling the shampoo, based on the fact that plaintiff saw Burbine with Robles.

The complaint also contains allegations plaintiff is being prevented from litigating this action, has no meaningful access to the courts, and has asked the court to defer the action until he is released.

Defendants demurred to the first amended complaint on the grounds it fails to state a viable cause of action against any defendant; the Department is immune from liability; and the complaint is uncertain.

Following a hearing, the court sustained defendants’ demurrer to plaintiff’s amended complaint without leave to amend. It found that the immunity conferred by Government Code section 844.6 establishes a complete defense to the state law claims as to all defendants and, to the extent the complaint purports to advance a civil rights cause of action under federal law, all are immune from liability, citing Baughman v. State of California (1995) 38 Cal.App.4th 182, 188.

Thereafter, the trial court entered a judgment in favor of all defendants and dismissed plaintiff’s amended complaint.

DISCUSSION

I. Standards of Review

When a demurrer is sustained, we independently determine whether the complaint states facts sufficient to constitute a cause of action. (Zelig, supra,27 Cal.4th at p. 1126.) And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: If it can be, the trial court has abused its discretion and we reverse. (Ibid.; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The burden of proving how the defects in the complaint can be cured by amendment falls on the appellant. (Ibid.)

Plaintiff is not exempt from the rules governing appeals because he is representing himself in propria persona. A party representing himself is to be treated like any other party and is entitled to the same, but no greater, consideration than other litigants and attorneys. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247; see Leslie v. Board of Medical Quality Assurance (1991) 234 Cal.App.3d 117, 121 [self-represented parties are held to “the same ‘restrictive procedural rules as an attorney’”].)

II. The Court Erred in Sustaining the Demurrer Without Leave to Amend as to all Defendants

Plaintiff alleges Robles “threw a shampoo bottle on the floor,” and “did not tell anyone or clean it up or warn anyone.” As a result of the spilled shampoo, “the floor was extremely slippery” and plaintiff slipped and fell. Both parties agree plaintiff’s complaint attempts to allege a dangerous condition of public property.

A “dangerous condition” of public property is defined by statute as “a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.” (Gov. Code, § 830, subd. (a).)

Preliminarily, we agree that spilled shampoo which remains on the floor over which inmate detainees have been directed to walk while carrying their belongings--including mattresses--created a dangerous condition of public property.

Having so concluded, we next ask whether defendants are afforded immunity from liability for any injury caused by the dangerous condition.

A. The Second Demurrer Was Properly Sustained Without Leave to Amend as to the Department

The Mono County Sheriff’s Department is a public entity and, hence, is wholly immune from liability for an injury to a “prisoner.” (Gov. Code, § 844.6, subd. (a)(2).) This is true even if the injury results from a dangerous condition of public property. (Gov. Code, § 844.6, subd. (c).) As a pretrial detainee of the Mono County Jail at the time of his injury, plaintiff was a “prisoner” for the purpose of Government Code section 844.6 immunity. (See Teter v. City of Newport Beach (2003) 30 Cal.4th 446, 451-453; Gov. Code, § 844.)

Accordingly, plaintiff cannot recover from the Department as a matter of law, and the Department’s demurrer was properly sustained. Plaintiff cannot amend the complaint to overcome this statutory immunity.

B. The Second Demurrer Was Properly Sustained Without Leave to Amend as to Sheriff-Coroner Paranick

A sheriff enjoys broad immunity from suit and may be held liable only upon proof of narrowly focused, specific factual allegations regarding misconduct outside the immunity generally afforded to that office. (See Gov. Code, § 820.2 [public employee not liable for injury where act or omission is result of exercise of discretion, whether or not such discretion is abused]; Taylor v. Buff (1985) 172 Cal.App.3d 384, 390 [sheriff immune from suit under Gov. Code, § 820.2 for policy decision not to use limited funds to replace cell locks in state of disrepair resulting in injuries to inmate]; see also Gov. Code, § 951 [requiring plaintiff suing local official in his or her individual capacity for actions undertaken under color of law to allege “with particularity sufficient material facts to establish the individual liability” of the official].)

Plaintiff makes nothing like a specific allegation against Paranick. Indeed, aside from alleging generally that Paranick is “legally responsible for the overall operation of the jail,” he fails to identify a single action or omission by Paranick, much less to allege specific facts sufficient to meet the rigorous pleading requirement of Government Code section 951 and overcome the statutory immunity ordinarily afforded under Government Code section 820.2. Those deficiencies are fatal to plaintiff’s request for leave to amend to assert a claim against Sheriff-Coroner Paranick. (Blank v. Kirwan, supra, 39 Cal.3d at p. 318 [it is appellant’s burden to demonstrate how he or she can amend the complaint to state a cause of action]; Titus v. Canyon Lake Property Owners Assn. (2004) 118 Cal.App.4th 906, 917-918 [same].)

C. Plaintiff Should Have Been Granted Leave to Amend His Claims Against Defendants Robles and Burbine

Unlike public entities, public employees like defendants Robles and Burbine are not insulated from liability for injury caused to a prisoner by their negligent or wrongful act or omission. (Gov. Code, § 844.6, subd. (d).) The trial court erred in concluding to the contrary.

Rather, a public employee may be liable for injuries arising from a dangerous condition of property, if the employee had the means and the authority to act upon the condition and the dangerous condition was either directly attributable to an act of the employee or the employee had actual or constructive notice of the dangerous condition. (Gov. Code, § 840.2.)

Government Code section 840.2 states: “An employee of a public entity is liable for injury caused by a dangerous condition of public property if the plaintiff establishes that the property of the public entity was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either: [¶] (a) The dangerous condition was directly attributable wholly or in substantial part to a negligent or wrongful act of the employee and the employee had the authority and the funds and other means immediately available to take alternative action which would not have created the dangerous condition; or [¶] (b) The employee had the authority and it was his responsibility to take adequate measures to protect against the dangerous condition at the expense of the public entity and the funds and other means for doing so were immediately available to him, and he had actual or constructive notice of the dangerous condition under [Government Code] Section 840.4 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”

Admittedly, the complaint is inartfully drafted by this pro se plaintiff. Yet, as to defendant Robles, plaintiff effectively alleges that the property was in a dangerous condition (i.e., the floor was slippery with spilled shampoo) at the time of the injury; plaintiff’s injury was caused by his falling on the slippery floor; the floor was slippery because of Robles’s negligent act of throwing the shampoo bottle to the floor; and Robles had the power to clean up the mess or to warn others of the danger. Only one missing allegation prevents plaintiff from utterly fulfilling the requirement of Government Code section 840.2, subdivision (a): that falling was a reasonably foreseeable risk of the slippery floor. Plaintiff can easily amend his complaint to add that allegation. He should be permitted to do so.

In contrast, plaintiff does not accuse defendant Burbine of spilling the shampoo, but of knowing about it and doing nothing: Plaintiff alleges Burbine “was [there] with [Robles] when Robles created an injury producing dangerous condition in the hallway” and that Burbine “knew about the dangerous condition [Robles] had created.” These assertions effectively allege Burbine had notice of the dangerous condition, but lack the necessary allegation that Burbine had the authority and responsibility “to have taken measures to protect against the dangerous condition” but failed to do so. (Gov. Code, § 840.2, subd. (b).)

As a detainee at the jail at the time he was injured, plaintiff may not have known the chain of command, and the extent of Burbine’s authority and responsibility. However, if there exists any basis for making such an allegation, plaintiff should be permitted to amend his complaint to add it.

D. No Federal Civil Rights Violation Was or Can Be Alleged

Although the body of plaintiff’s amended complaint raises a general negligence claim under state law, under the “Conclusion” heading at the end of the amended complaint are 14 numbered non sequitur statements, including assertions that “Suit was brought in good faith, with reasonable cause and for proper purpose” and “Writ of habeas corpus, case No. 15560 for forms at Mono County Jail.”

Among these statements appears the following: “42 U.S.C. § 1983 provides civil rights statute. I was ill-prepared, I lack exper[t]ise and experience.”

In an apparent abundance of caution, the trial court treated this statement referring to section 1983 as possibly asserting a separate cause of action, and ruled that it fails to raise a cognizable allegation that plaintiff’s federal civil rights were violated. We agree with the trial court’s conclusion.

Section 1983 provides, in part, that “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State... subjects, or causes to be subjected, any citizen of the United States... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....”

Thus, in any section 1983 action, the initial inquiry must focus on the presence of two essential elements: “(1) whether the conduct complained of was committed by a person acting under color of state law; and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States.” (Parratt v. Taylor (1981) 451 U.S. 527, 535 [68 L.Ed.2d 420, 428], overruled on other grounds in Daniels v. Williams (1986) 474 U.S. 327, 330-331 [88 L.Ed.2d 662, 667-668].)

Here, we do not consider that plaintiff’s complaint can be construed as a genuine effort to plead a section 1983 cause of action. If it were, it would fail.

First, neither a state nor its officials acting in their official capacities are “persons” within the meaning of section 1983; accordingly, plaintiff cannot maintain a civil rights claim against defendants. (Will v. Michigan Dept. of State Police (1989) 491 U.S. 58, 71 [105 L.Ed.2d 45, 58]; Baughman v. State of California, supra, 38 Cal.App.4th at p. 188.) Second, plaintiff’s claim against the individual defendants for personal injury damages for slipping on spilled shampoo sounds a claim for negligence, and allegations of negligence will not support a section 1983 action. (Daniels v. Williams, supra, 474 U.S. at pp. 330-331 [88 L.Ed.2d at pp. 667-668].)

Accordingly, the trial court properly concluded that, to the extent plaintiff’s amended complaint may be read to assert a cause of action under section 1983, it fails as a matter of law, and cannot be cured by amendment.

DISPOSITION

The judgment entered in favor of defendants Ray Robles and Joe Burbine is reversed. The court shall enter an order sustaining with leave to amend the demurrer of these defendants to plaintiff’s amended complaint. In all other respects, the judgment is affirmed.

We concur: RAYE, Acting P. J., HULL, J.


Summaries of

Gutierrez v. Mono County Sheriff's Dept.

California Court of Appeals, Third District, Monoc
Apr 29, 2009
No. C058201 (Cal. Ct. App. Apr. 29, 2009)
Case details for

Gutierrez v. Mono County Sheriff's Dept.

Case Details

Full title:RAYMOND V. GUTIERREZ, Plaintiff and Appellant, v. MONO COUNTY SHERIFF’S…

Court:California Court of Appeals, Third District, Monoc

Date published: Apr 29, 2009

Citations

No. C058201 (Cal. Ct. App. Apr. 29, 2009)