Robinson v. Adams, et al.
Filing
117
ORDER Partially Adopting Findings and Recommendations 97 and Granting in Part and Denying in Part Defendants' Motion for Summary Judgment 75 ; ORDER Denying Plaintiff's Motion to Preserve his Right to File an Opposition to Defendants' Objections 104 ; ORDER Denying Plaintiff's Motion for a Preliminary Injunction 106 , signed by Chief Judge Anthony W. Ishii on 8/9/11. (Verduzco, M)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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GEORGE H. ROBINSON,
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Plaintiff,
ORDER PARTIALLY ADOPTING FINDINGS
AND RECOMMENDATIONS AND GRANTING
IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT
Defendants.
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CASE NO. 1:08-cv-01380-AWI-SMS PC
(ECF Nos. 75, 97, 102)
v.
D. ADAMS, et al.,
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ORDER DENYING PLAINTIFF’S MOTION TO
PRESERVE HIS RIGHT TO FILE AN
OPPOSITION TO DEFENDANTS’
OBJECTIONS
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(ECF No. 104)
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ORDER DENYING PLAINTIFF’S MOTION
FOR A PRELIMINARY INJUNCTION
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(ECF No. 106)
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I.
Procedural History
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Plaintiff George H. Robinson (“Plaintiff”) is a state prisoner proceeding pro se in this civil
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rights action pursuant to 42 U.S.C. § 1983. This action was removed from Kings County Superior
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Court and is proceeding on the complaint filed May 13, 2008, against Defendants David, Miranda,
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Melo, Garcia, Mendoza, Martinez, and Masiel for the use of excessive force and Defendants Adams
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and Ruiz for failing to protect Plaintiff in violation of the Eighth Amendment; and state law claims
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for assault and battery against Defendants Martinez, David, Miranda, and Garcia; intentional
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infliction of emotional distress against David, Miranda, Melo, Garcia, Mendoza, Martinez, and
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Masiel; and negligence against Defendants David, Miranda, Melo, Garcia, Mendoza, Martinez, and
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Masiel. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. §
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636(b)(1)(B) and Local Rule 302.
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On February 4, 2011, findings and recommendations were issued recommending Defendants’
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motion for summary judgment be denied. The parties were given thirty days within which to file
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objections and Defendants filed an objection to the findings and recommendations on March 8, 2011.
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Plaintiff filed a motion to preserve his right to file an opposition to Defendants objections on March
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21, 2011(ECF No. 104.) On April 4, 2011, Plaintiff filed a motion for a preliminary injunction.
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(ECF No. 106.)
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II.
Motion to Preserve Right to File Opposition
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Plaintiff has filed a motion to preserve his right to file an opposition if the Court makes a
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finding that he has failed to exhaust administrative remedies. Based upon the recommendation in
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the findings and recommendations Plaintiff’s request shall be denied as moot.
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III.
Motion for Preliminary Injunction
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Plaintiff requests a preliminary injunction because correctional officers searched his cell on
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April 10, 2011. He alleges that the officers spent two hours in his cell going through his legal
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documents. Since this is the only case he has pending he infers that the officers were acting on
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behalf of Defendants to steal evidence he plans to use at trial. Plaintiff requests a court order to
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prohibit Defendants or their agents from taking any of his documents relating to this matter.
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“A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter v.
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Natural Resources Defense Council, Inc., 129 S. Ct. 365, 376 (2008) (citation omitted). “A plaintiff
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seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is
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likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips
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in his favor, and that an injunction is in the public interest.” Marlyn Nutraceuticals, Inc. v. Mucos
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Pharma GmbH & Co., 571 F.3d 873, 877 (9th Cir. 2009) quoting Winter, 129 S. Ct. at 374. An
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injunction may only be awarded upon a clear showing that the plaintiff is entitled to relief. Winter,
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129 S. Ct. at 376 (citation omitted) (emphasis added).
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For each form of relief sought in federal court, Plaintiff must establish standing. Mayfield
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v. United States, 599 F.3d 964, 969 (9th Cir. 2010), cert.denied, 131 S. Ct. 503 (2010). This requires
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Plaintiff to “show that he is under threat of suffering ‘injury in fact’ that is concrete and
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particularized; the threat must be actual and imminent, not conjectural or hypothetical; it must be
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fairly traceable to challenged conduct of the defendant; and it must be likely that a favorable judicial
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decision will prevent or redress the injury.” Summers v. Earth Island Institute, 129 S. Ct. 1142, 1149
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(2009) (citation omitted); Mayfield, 599 F.3d at 969 (citation omitted).
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In addition, any award of equitable relief is governed by the Prison Litigation Reform Act,
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which provides in relevant part, “Prospective relief in any civil action with respect to prison
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conditions shall extend no further than necessary to correct the violation of the Federal right of a
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particular plaintiff or plaintiffs. The court shall not grant or approve any prospective relief unless
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the court finds that such relief is narrowly drawn, extends no further than necessary to correct the
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violation of the Federal right, and is the least intrusive means necessary to correct the violation of
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the Federal right.” 18 U.S.C. § 3626(a)(1)(A).
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The case or controversy requirement cannot be met in light of the fact that the issue Plaintiff
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seeks to remedy in his motion bears no relation to the claim that prison guards used excessive force
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on him. Lyons, 461 U.S. at 102; 18 U.S.C. § 3626(a)(1)(A); also Summers v. Earth Island Inst., 129
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S. Ct. 1142, 1148-49 (2009); Steel Co., 523 U.S. at 102-04, 107. Because the case-or-controversy
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requirement cannot be met, the pendency of this action provides no basis upon which to award
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Plaintiff the injunctive relief he is requesting. Steel Co., 523 U.S. at 102-103. Additionally, the
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relief sought is not related to the underlying claims in this action and would not remedy the violation
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of the Federal right at issue here. Therefore, the Court cannot grant the requested relief and
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Plaintiff’s motion for equitable relief shall be denied.
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IV.
Findings and Recommendations
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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a
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de novo review of this case. Having carefully reviewed the entire file, the Court adopts the findings
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and recommendations in part and declines to adopt in part for the reasons set forth below.
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Defendants object to the Magistrate Judges decision to disregard their argument that Plaintiff
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failed to exhaust administrative remedies as it was not timely. “A scheduling order is not a frivolous
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piece of paper, idly entered. . . .” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 610 (9th
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Cir. 1992). Modification requires a showing of good cause, Fed. R. Civ. P. 16(b), and good cause
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requires a showing of due diligence, Johnson, 975 F.2d at 609. Defendants argue that they moved
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to modify the scheduling order on July 30, 2010, when they became aware that they had mis-
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calendared the date the motion was due. “Carelessness is not compatible with a finding of diligence
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and offers no reason for a grant of relief.” Johnson, 975 F.2d at 609. The deadline set for filing a
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motion to dismiss for failure to exhaust was October 20, 2009. The Magistrate Judge’s decision was
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proper in declining to consider the issue when raised in the motion for summary judgment filed over
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ten months after the deadline.
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Defendants also object that Plaintiff’s Government Claim did not raise claims of negligence
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or emotional distress and, therefore ,Plaintiff failed to comply with the requirements of the California
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Tort Claims Act and those claims are barred. A claim must provide “[t]he date, place, and other
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circumstances of the occurrence or transaction which give rise to the claim asserted” and provide a
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“general description of the . . . injury, damage, or loss incurred so far as it may be known at the time
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of presentation of the claim.” Cal. Gov. Code § 910. A claim is not required to be detailed or
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include the specificity required of a pleading, but must fairly describe what the entity has done.
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Stockett v. Ass’n of California Water Agencies Joint Powers Ins. Auth., 34 Cal.4th 441, 446 (2004).
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Where the complaint elaborates or adds further detail, but is based upon the same fundamental
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actions by the defendants, courts generally find that “the claim fairly reflects the facts pled in the
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complaint.” Id. at 447. Plaintiff’s claim stated the dates of incidents occurred from January 22,
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2007, to April 12, 2007. Plaintiff alleged that he was beaten by correctional officers causing injuries.
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The purpose of the Tort Claim Act is to allow public entities to investigate and settle disputes
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without the cost of litigation. City of San Jose v. Superior Court, 12 Cal.3d 447, 455 (1974). The
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substantial compliance test controls where there has been some compliance with the Act, but a claim
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is defective. The question is whether sufficient information was disclosed on the face of the claim
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to allow the entity to investigate the claim and settle it without litigation. Id. at 456. Plaintiff’s
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complaint that he was pepper sprayed by Defendant Martinez on January 22, 2007, would be an
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elaboration of the facts as to what was alleged to have occurred in the claim. Plaintiff’s claim would
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be sufficient to satisfy the substantial compliance test for the pepper spray incident.
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However, where “a plaintiff relies on more than one theory of recovery against the
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[government agency], each cause of action must have been reflected in the timely claim.” Dixon v.
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City of Livermore, 127 Cal.App.4th 32, 40 (2005). Plaintiff’s claim stated that he was beaten
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causing injuries. Additionally, he alleged he was taken from his cell and beaten by correctional
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officers, his property was taken, and he was cold because he was forced to sleep in a cell with no
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blanket and underwear for weeks. While Plaintiff’s claim did allege assault and battery, it was not
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sufficient to allege negligence or intentional infliction of emotional distress. Therefore, the Court
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will dismiss Plaintiff’s state law claims of negligence and intentional infliction of emotional distress
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for failure to comply with the California State Tort Claims Act.
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Accordingly, IT IS HEREBY ORDERED that:
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1.
The findings and recommendations, filed February 4, 2011, is ADOPTED IN PART;
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2.
Defendants’ motion for summary judgment, filed September 3, 2010, is GRANTED
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as to the state law claims of negligence and intentional infliction of emotional
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distress;
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3.
Defendants’ motion for summary judgment is DENIED in all other respects;
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4.
Plaintiff’s motion to preserve his right to file an opposition to Defendants’
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objections, filed March 21, 2011, is DENIED as moot;
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5.
Plaintiff’s motion for a preliminary injunction, filed April 22, 2011, is DENIED; and
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This matter is referred back to the Magistrate Judge for further proceedings.
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IT IS SO ORDERED.
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Dated:
0m8i78
August 9, 2011
CHIEF UNITED STATES DISTRICT JUDGE
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