Knox v. Pol CA2/6

Filed 1/22/14 Knox v. Pol CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

JESUS KNOX, 2d Civil No. B244901 (Super. Ct. No. CV120146A) Plaintiff and Appellant, (San Luis Obispo County)

v.

J. POL, et al.,

Defendants and Respondents.

Jesus Knox, a state prison inmate, sued three members of the prison staff for violating prison administrative regulations and for discriminating against him on the basis of sex, race and mental disability in violation of the Fair Employment and Housing Act (FEHA). (Gov. Code, § 12940 et seq.) He appeals from the trial court's order sustaining respondents' demurrer without leave to amend.1 We affirm. Facts Appellant, an African-American state prison inmate who states that he is mentally ill, worked as a cook in the prison kitchen. Respondent Pol is a Caucasian staff cook in the kitchen. Respondent Watains is also employed as a staff cook in the kitchen. Respondent Pechmann is their manager.

1 Although no final judgment was entered in the court below, we construe the order sustaining the demurrer without leave to amend as an appealable order of dismissal. (Sisemore v. Master Financial, Inc. (2007) 151 Cal.App.4th 1386, 1396.)

Appellant's complaint alleges that, in December 2010, he was working in the kitchen, stirring pudding with a large dipper, when Pol walked up to him, gestured as if he was masturbating and said, "How does that feel?" A few days later, Watains told appellant that he had heard about the incident. In January 2011, Pol reported to a corrections officer that appellant felt suicidal. Appellant denied the report and alleges it was false. In February 2011, Pol yelled at appellant for filling rice pans incorrectly and then issued a written warning to him. Appellant complained he was being picked on because of his race. Respondent Pechmann investigated the complaint about one month later and found no misconduct by staff. Staff did, however, receive additional training. In March 2011, appellant was not allowed to work for one day because he showed up for work with two black eyes. In June 2011, Pol and a corrections officer engaged in some horseplay for about an hour, hiding from appellant a job classification review form that appellant needed to have signed. They eventually gave the form back to appellant who had it signed by another officer. The incident caused appellant to have an anxiety attack. Later that same month Pechmann approved Knox's request for a job transfer from the kitchen to the bakery. As he was leaving the kitchen, appellant heard Pechmann yell, "I better not hear anything else from you! Are we clear?" Appellant filed two separate, internal prison grievances against Pol, one relating to the pudding incident and another concerning the rice pans. He exhausted his administrative remedies with regard to the first grievance. Neither grievance mentioned Watains or Pechmann. In his response to respondents' demurrer, appellant claimed he did not file a grievance against Pechmann because he felt threatened and intimidated by Pechmann's statement, "I better not hear anything else from you!" In May 2011, appellant filed a tort claim with the Victim Compensation and Government Claims Board. The claim did not mention Pechmann or allege that appellant had been injured by anyone working in Pechmann's position. Contentions Respondents' demurrer contended: 1. appellant cannot state a claim for violation of FEHA because he is an inmate, not a employee; 2. appellant had no private