Andersen v. Martino

Filed 9/13/07 Andersen v. Martino CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Hugh Michael Brenner, Judge. Affirmed.

Andrew Andersen, in pro. per., for Plaintiff and Appellant.

Benjamin P. de Mayo, County Counsel, Thomas F. Morse and James C. Harman, Deputy County Counsel, for Defendant and Respondent.

* * *

Appellant brought this lawsuit against an individual sheriffs deputy, alleging civil rights violations and intentional and negligent infliction of emotional distress during his time in jail. The trial court sustained respondents demurrer without leave to amend, and because we find appellants arguments without legal merit, we affirm.

I

FACTS

Appellant Andrew Andersen was an inmate at the Orange County jail (OCJ) while awaiting trial on criminal charges. He is now serving time in prison. In July 2005, he filed a lawsuit against Orange County Sheriffs Deputy Cory Martino, alleging that while incarcerated, he was prevented from fully participating in Arizona divorce proceedings. He further alleged that he was an indigent defendant at all times relevant.

In brief, Andersens complaint alleged that he was not permitted access to the telephones in the OCJs dayroom at the times needed to participate in his settlement conference and divorce trial. He also claimed that Martino denied him access to the law library and its materials to prepare a case against Martino, and that Martino failed to give Andersen inmate message slips. He also asserted he was denied access to the grievance system.

The complaint alleged claims under 42 United States Code, section 1983 (section 1983) and the Due Process and Equal Protection Clauses of the Fourteenth Amendment, the First Amendment, intentional infliction of emotional distress, negligent infliction of emotional distress, and declaratory relief. The damages he alleged were emotional and mental distress. He did not allege that he suffered any physical injury or economic damage.

Martino filed a demurrer and supporting request for judicial notice. He argued the facts alleged failed to state a cause of action and a defect in joinder. Martinos supporting declaration stated that during the relevant period, he worked three 12-hour shifts per week in the OCJ and was responsible for 244 inmates. Andersen, because he was an accused pedophile, was a protective custody inmate. Because of that classification, he could not be placed in the dayroom at the same time as certain other inmates. Jail policy and state regulations required a minimum number of hours of dayroom access per day, and this required starting dayroom rotations early in the morning and extending them until late evening.

The trial court sustained the demurrer without leave to amend. Andersen now appeals.

II

DISCUSSION

Request for Judicial Notice

Andersen has requested we take judicial notice of court records in two other superior court cases. Andersen did not comply with California Rule of Court, rule 8.252 which requires attaching copies of the documents, or an explanation why it is impracticable to do so. This court, however, requested transmittal of the indicated records from the superior court. Although we find they have little or no relevance to this action, the request for judicial notice is granted. As always, however, judicial notice extends only to the existence of the records, not the truth of any matter asserted therein.

Standard of Review

In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules. We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed. [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] 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; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff. [Citation.] (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) We review the trial courts decision de novo to determine whether it alleges facts sufficient to state a cause of action under any legal theory. (McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415.)

As a state court, we look to federal law to determine the validity of an action under section 1983. (Buenavista v. City and County of San Francisco (1989) 207 Cal.App.3d 1168, 1174.) [S]tate law that would produce a different outcome in state than in federal court [on a claim under section 1983] must yield to federal law. (County of Los Angeles v. Superior Court (1999) 21 Cal.4th 292, 300.)

Constitutional Claims

In his opening brief, Andersen asserts that his constitutional claims are brought as federal civil rights claims under [section] 1983.^[1] That statute states: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof 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.

Among the rights protected by section 1983 is the access to courts.^[2]

(Lewis v. Casey (1996) 518 U.S. 343, 346, 350.) When access to courts is at issue, a prison or jail inmate must allege actual injury, such as actual prejudice with respect to contemplated or existing litigation as a result of the purported violation. (Id. at p. 348.) With respect to the alleged denial of access to the law library to prepare a civil rights case against Martino, he suffered no actual injury because he eventually did prepare and file a timely action. Further, the standard of actual injury does not encompass claims where the purported injury is purely emotional distress. Emotional distress is not actual prejudice with respect to contemplated or existing litigation and therefore not compensable injury in this context. (Ibid.) 

Moreover, even if Andersen could establish actual injury, an inmates right of access to the civil courts is not unlimited. The Constitution does not guarantee inmates the wherewithal to transform themselves into litigating engines capable of filing everything from shareholder derivative actions to slip-and-fall claims. The tools it requires to be provided are those that the inmates need in order to attack their sentences, directly or collaterally, and in order to challenge the conditions of their confinement. Impairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration. (Lewis v. Casey, supra, 518 U.S. at p. 355.)

Given the state of the law and the facts alleged, Martino is also entitled to immunity under the qualified immunity standard. (Saucier v. Katz (2001) 533 U.S. 194, 201.) To overcome qualified immunity, a plaintiff must establish a violation of a clearly established constitutional right, in light of the context of the case. As there is no clearly established constitutional right to participate in civil proceedings unrelated to a prisoners criminal case or civil cases unrelated to his confinement, Andersen would be unable to overcome the barrier of qualified immunity.

Given the multiple reasons why Andersens constitutional claims were insufficient as a matter of law, we find no opportunity to amend would have cured them.^[3] Therefore, the demurrer to these claims without leave to amend was properly sustained, and we need not address Andersens additional arguments on this point.

Declaratory Relief

Declaratory relief operates prospectively, and not merely for the redress of past wrongs. It serves to set controversies at rest before they lead to repudiation of obligations, invasion of rights or commission of wrongs; in short, the remedy is to be used in the interests of preventive justice, to declare rights rather than execute them. [Citations.] (Babb v. Superior Court (1971) 3 Cal.3d 841, 848.)

Andersens complaint requested declaratory relief stating that 1. Defendants actions regarding Plaintiffs divorce case violated Plaintiffs United States constitutional rights. [] 2. Defendants actions regarding Plaintiffs divorce case violated Plaintiffs California constitutional rights. [] 3. Defendants denial of Plaintiffs access to the law library to prepare and file a civil rights action is in violation of Plaintiffs United States constitutional rights.

All of the declarations sought purported to address past wrongs, not to prevent future ones. Thus, they were never the appropriate subject for declaratory relief. Martinos demurrer was properly sustained without leave to amend.

Intentional Infliction of Emotional Distress

[T]o state a cause of action for intentional infliction of emotional distress a plaintiff must show: (1) outrageous conduct by the defendant; (2) the defendants intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiffs suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendants outrageous conduct. [Citation.] (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1259.) Conduct, to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized society. [Citation.] (Ibid.)

Andersen does not argue that the allegations of his complaint were sufficient, but he claims it could be amended. We disagree, in part because he argues he has already pled the first and third elements. Although at trial, whether the conduct was outrageous would properly be a question of fact, appellate courts are permitted to determine that the allegations of outrageous conduct are insufficient as a matter of law. (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 494.)

Even if we take Andersens allegations as true, in the context in which they arise, we do not find it to be sufficiently outrageous as a matter of law. At the end of the day, Andersen was denied privileges to which he claims he was entitled. A denial of jail privileges, even wrongfully, does not exceed all bounds of that usually tolerated in a civilized society. We do not find that any amendment would substantively change Andersens allegations to cure this patent defect. Therefore, the court did not err by sustaining the demurrer without leave to amend.

Negligent Infliction of Emotional Distress

There is no independent tort of negligent infliction of emotional distress. (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984 (Potter).) Such claims are merely species of negligence. (Wooden v. Raveling (1998) 61 Cal.App.4th 1035, 1042.) Recovery of emotional distress damages for negligence, when no physical impact or injury has occurred, is only permitted in a limited number of circumstances under California law.

These include situations such as the mishandling of a relatives remains, bystander recovery for witnessing an accident in which a relative was the victim, medical malpractice directed at a third party which impacted the plaintiff, and certain situations involving fiduciaries or other special relationships. (See Branch v. Homefed Bank (1992) 6 Cal.App.4th 793, 800.) As a more general principle, unless the defendant has assumed a duty to plaintiff in which the emotional condition of the plaintiff is an object, recovery is available only if the emotional distress arises out of the defendants breach of some other legal duty and the emotional distress is proximately caused by that breach of duty. Even then, with rare exceptions, a breach of the duty must threaten physical injury, not simply damage to property or financial interests. (Potter, supra, 6 Cal.4th at p. 985.)

Contrary to Andersens understanding of the law, more than a mere allegation of a duty and a breach is required when no physical harm is suffered. We find no circumstances under which Andersen could allege any of this highly specialized facts which would permit recovery. Therefore, the trial court did not err by sustaining the demurrer or denying further leave to amend.

III

DISPOSITION

The judgment is affirmed. Due to appellants indigent status, we decline to award costs.

MOORE, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

ARONSON, J.

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^[1] While Andersen claims he brought six different causes of action, the civil rights claims were properly considered one cause of action supported by varying facts. Thus, we do not find Andersens claim of deliberate indifference of his right to court access to be any different from his general claim that court access was denied.

^[2] Andersens brief also raises his complaints allegation of punishment. We find no independent factual allegations to support even the barest contention of punishment. To the extent that the purported punishment was the denial of access to courts, the same standard of actual injury applies.

^[3] Andersen additionally claims he was denied access to the jails grievance system. The authorities he cites, however, do not support the argument that a bare contention of denial is sufficient to plead a claim under section 1983. Title 15 of the California Code of Regulations, section 1073, merely states that facilities must establish such a procedure. Graham v. Hendersen (2nd Cir. 1996) 89 F.3d 75, did not address denial of access to the grievance system, but retaliation for its use. Andersen asks us to consider his declaration, purporting to set forth additional facts, in support of this claim. As it was not part of the record below, such consideration would be highly inappropriate and we decline to do so. See California Rule of Court, rule 8.204(a)(2)(C), which provides that an appellants opening brief must Provide a summary of the significant facts limited to matters in the record. (Italics added.) Based on the record, we find no error.