Solares v. Burns

1

DORA SOLARES, Plaintiff, v. JOSEPH BURNS, et al., Defendants.

No. 1:21-cv-01349 JLT BAM

United States District Court, E.D. California

May 19, 2023

ORDER GRANTING DEFENDANT BURNES'

MOTION TO DISMISS

(DOC. 11)

Dora Solares alleges that after her son, Luis Romero, was brutally murdered by a cellmate at Corcoran State Prison, California Department of Corrections and Rehabilitation Sergeant Joseph Burnes^[1] and Does 1-15 took and shared photographs of Mr. Romero's mutilated remains, which were later published on the Internet and witnessed by Plaintiff. (See generally Doc. 1.) She seeks to hold Defendants liable for, inter alia, violating her substantive due process rights under the Fourteenth Amendment of the U.S Constitution. (Id.)

Burnes seeks dismissal of the Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. 11.) Plaintiff opposes dismissal, asserting it states a valid and plausible claim. (Doc. 13.) The Court finds the matter suitable for decision without oral argument pursuant to Local Rule 230(g) and General Order 618. For the reasons set forth below, Burnes' motion to dismiss is GRANTED.

I. Background and Allegations

On March 7, 2019, Luis Romero was transferred from Mule Creek State Prison to California State Prison, Corcoran. (Doc. 1 at ¶ 14.) According to Plaintiff, Defendants failed to follow the “standardized administrative committee process” for determining whether two inmates should share a cell and hastily assigned Mr. Romero to inmate Jaime Osuna's cell. (Id.) Osuna, a convicted murderer, had never been housed with another inmate while at Corcoran due to his extremely violent history, including against fellow inmates. (Id. at ¶ 15.) Defendants were allegedly on notice of these facts, and yet proceeded to make their fatal assignment. (Id. at ¶ 14.)

The day after Mr. Romero arrived, Defendants failed to properly monitor the premises or conduct regular safety checks of Mr. Romero's cell as required and failed to order the bedsheet draped over his cell window to be removed, which prevented outside surveillance. (Doc. 1 at ¶ 15.) Early the next morning, on March 9, 2019, prison officials eventually moved the bedsheet aside to find Mr. Romero brutally murdered. (Id. at ¶ 1.) Using what appeared to be a razor wrapped in string, Osuna had removed Mr. Romero's right ear, forcibly detached his eyes, removed his ribs and lungs, decapitated him, and was wearing a necklace made of his body parts and organs. (Id. at ¶ 16.) Plaintiff asserts Defendants took photographs of Mr. Romero's remains while in uniform and on duty, then possessed, shared, and/or permitted other CDCR employees under their supervision to possess and share the photographs, “which in turn allowed these photographs to be leaked publicly.” (Id. at ¶ 17.) Plaintiff alleges she had “the horrific experience of witnessing the photographs” on various websites and social media, and she continues to experience “intense distress and emotional anguish” caused by Defendants' conduct. (Id. at ¶ 18.)

Based upon these allegations, Plaintiff filed the instant action on behalf of herself and as successor-in-interest to Mr. Romero, asserting a 42 U.S.C. § 1983 claim and pendent state law claims against Burnes and Does 1-15 in their individual capacities.^[2] Pending before the Court is Burnes' motion to dismiss under Rule 12(b)(6). (Doc. 11.) Plaintiff filed an opposition on December 31, 2021, (Doc. 13), to which Burnes replied on January 7, 2022. (Doc. 14.)

II. Motion to Dismiss under Rule 12(b)(6)

A Rule 12(b)(6) motion “tests the legal sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal of a claim under Rule 12(b)(6) is appropriate when “the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). Thus, under Rule 12(b)(6), “review is limited to the complaint alone.” Cervantes v. Porterville of San Diego, 5 F.3d 1273, 1274 (9th Cir. 1993).

“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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Supreme Court explained,

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. The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are “merely consistent with” a defendant's liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.'”

Iqbal, 556 U.S. at 678 (internal citations omitted). “The issue is not whether a plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test.” Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The Court “will dismiss any claim that, even when construed in the light most favorable to plaintiff, fails to plead sufficiently all required elements of a cause of action.” Student Loan Marketing Assoc. v. Hanes, 181 F.R.D. 629, 634 (S.D. Cal. 1998). To the extent pleading deficiencies can be cured by the plaintiff alleging additional facts, leave to amend should be granted. Cook, Perkiss & Liehe, Inc. v. Northern Cal. Collection Serv., 911 F.2d 242, 247 (9th Cir. 1990) (citations omitted).

III. Discussion and Analysis

A. Substantive due process under 42 U.S.C. § 1983

“To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that (1) he or she was deprived of a right secured by the Constitution or federal law; and (2) the defendant acted ‘under color of state authority' in depriving the plaintiff of this right.” Franklin v. Terr, 201 F.3d 1098, 1100 (9th Cir. 2000) (quoting Hafer v. Melo, 502 U.S. 21, 25 (1991)).

1. Defendants acted under color of state law

Though not in dispute, Plaintiff alleges Defendants were acting within the course and scope of their employment with CDCR, (Doc. 1 at ¶ 7), which is adequate to satisfy the second prong. See Anderson v. Warner, 451 F.3d 1063, 1068 (9th Cir. 2006) (explaining that there is no “rigid formula” in determining whether a state or local official acted under color of state law and “state employment is generally sufficient to render the defendant a state actor”). Thus, the Court is left to determine whether Plaintiff sufficiently alleges the deprivation of a constitutional right.

2. A parent's control over a child's death images is a secured right

Plaintiff's substantive due process claim rests upon on her constitutional right to control the death images of her son as established in Marsh v. County of San Diego, 680 F.3d 1148 (9th Cir. 2012). (Doc. 1 at ¶ 25.) Indeed, “[a] parent's right to control a deceased child's remains and death images flows from the well-established substantive due process right to family integrity.” Marsh, 680 F.3d at 1154. The Constitution protects this right “against unwarranted public exploitation by the government.” Id. In Marsh, the Ninth Circuit held that a retired prosecutor's release of a copy of the plaintiff's child's autopsy photograph to the press in an attempt to publish it violated the plaintiff's Fourteenth Amendment due process rights. The Court reasoned:

Mutilation of a deceased family member's body, desecration of the burial site and public display of death images are the kind of conduct that is likely to cause the family profound grief and therefore “shocks the conscience” and “offend[s] the community's sense of fair play and decency.”

680 F.3d at 1155 (quoting Rochin v. California, 342 U.S. 165, 172-73 (1952)). Thus, by attempting to publish the image, the Court found the prosecutor's “intrusion into the grief of a mother over her dead son-without any legitimate governmental purpose- ‘shocks the conscience' and therefore violate[d] [the plaintiff's] substantive due process right.” Id. (emphasis added).

The “cognizable level of executive abuse of power” for a substantive due process violation is egregious conduct which “shocks the conscience and violates the decencies of civilized conduct.” Cty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998) (internal quotation marks omitted); see also Marsh, 680 F.3d at 1154; Goldyn v. Clark Cty., Nevada, 346 Fed.Appx. 153, 155 (9th Cir. 2009). Both parties focus, in large part, on surmising the basis for the holding in Marsh. Burnes argues that his conduct doesn't shock the conscience and Marsh is distinct because Plaintiff doesn't allege Burnes was involved in the publication of the photographs. (See Doc. 11-1 at 4-6.) Plaintiff contends that “taking and/or sharing” the photographs with others, is enough to shock the conscience under Marsh. (Doc. 13 at 5.)

Irrespective of the form or subject of delivery, an essential consideration in Marsh was whether the defendant acted with a legitimate government purpose. See Marsh, 680 F.3d at 1155. Moreover, while it is relatively clear that whether the photographs were published is of no import as the photographs were not ultimately published in Marsh, the Court finds no indication as to whether the Ninth Circuit's decision relied upon the prosecutor's attempt to publish the photographs by delivering them to the press as opposed to, for example sharing the photos with an employer, co-worker, or friends. In other words, it is unclear whether the decision hinged on how or ...