Opinion
No. 2:19-cv-02312-TLN-KJN
06-15-2020
HERSEL WAYNE CASTO, II., Plaintiff, v. GAVIN NEWSOM, et al., Defendants.
ORDER
Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On April 8, 2020, the magistrate judge filed findings and recommendations herein which were served on Plaintiff and which contained notice to Plaintiff that any objections to the findings and recommendations were to be filed within fourteen days. (ECF No. 11.) Plaintiff filed objections to the findings and recommendations. (ECF No. 14.)
In his objections, Plaintiff clarifies that he is pursuing a whistleblower complaint in Case No. 12019-1462, currently under investigation by the California Bureau of State Audits. Plaintiff concedes that in this action — in which he challenges the conditions of his confinement under the Eighth and Fourteenth Amendments — Plaintiff relies on California Government Code § 8547, California's Whistleblower Statute, to argue that he was not required to exhaust administrative remedies. (ECF No. 14 at 2.) But Plaintiff claims it was error for the magistrate judge not to apply the federal Whistleblower Protection Act, which Plaintiff claims was the genesis of California's Whistleblower Statute and protects "all whistleblowers." Plaintiff further argues that he was in fact a prison employee, but that anyone may nonetheless file a whistleblower complaint, not just government employees. (ECF No. 14 at 3.) Plaintiff provides no specific case or statute citation, other than § 8547, to support such argument.
Plaintiff claims that at the time of the incident he was employed by California Prison Industry Authority Fabrics. (ECF No. 14 at 3.) However, as a prisoner who was "obligated to work at some job pursuant to a prison work program" under state law, see Cal. Penal Code § 2700, Plaintiff does not have a typical employment relationship with the prison. See Castle v. Eurofresh, Inc., 731 F.3d 901, 906-08 (9th Cir. 2013) (holding that an Arizona inmate was not an employee of a prison contractor under the Americans with Disabilities Act ("ADA") because "his labor belongs to the State of Arizona, which put him to work" in order to comply with a state statute requiring all able-bodied prisoners to work) (citing Hale v. Arizona, 993 F.2d 1387, 1395 (9th Cir. 1993) (en banc) (holding that inmates working for a prison, in a program structured by the prison pursuant to state law requiring prisoners to work, are not "employees" of the prison within the meaning of the Fair Labor Standards Act) and Coupar v. U.S. Dep't of Labor, 105 F.3d 1263, 1266 (9th Cir. 1997) (holding that because a federal prisoner's job fulfilled a prison work requirement, he was not an "employee" who could enforce the "whistleblower protection provisions" of the Clean Air Act and the Toxic Substances Control Act)).
Plaintiff cites 42 U.S.C. § 1915(g) and Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007). However, such authorities do not apply in this context because Plaintiff has not been found to be three-strikes barred under § 1915(g) by filing three or more actions or appeals that were dismissed on the grounds that they were frivolous, malicious, or failed to state a claim. --------
Notwithstanding his objections, Plaintiff provides no persuasive or binding legal authority for his view that he is exempt from the Prison Litigation Reform Act ("PLRA") requirement that he exhaust administrative remedies prior to raising conditions of confinement claims. 42 U.S.C. § 1997e(a). Such Congressional mandate has been reinforced by the United States Supreme Court on multiple occasions. Ross v. Blake, 136 S. Ct. 1850 (2016) (holding that an inmate "must exhaust available remedies, but need not exhaust unavailable ones"); Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014) ("The PLRA mandates that inmates exhaust all available administrative remedies before filing 'any suit challenging prison conditions,' including, but not limited to, suits under § 1983," quoting Woodford v. Ngo, 548 U.S. 81, 85 (2006)).
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the Court finds the findings and recommendations to be supported by the record and by proper analysis.
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations filed April 8, 2020 (ECF No. 11), are ADOPTED IN FULL;
2. This action is DISMISSED without prejudice.
IT IS SO ORDERED. DATED: June 15, 2020
/s/_________
Troy L. Nunley
United States District Judge