Garrison Johnson v. Cate et al

Filing 23

FINDINGS and RECOMMENDATIONS Recommending Defendants' Motion to Dismiss be Granted 18 , signed by Magistrate Judge Dennis L. Beck on 11/17/11. Referred to Judge O'Neill. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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GARRISON S. JOHNSON,

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Plaintiff,

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CASE NO. 1:10-CV-1918-LJO-DLB PC
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DEFENDANTS’
MOTION TO DISMISS BE GRANTED

v.
MATTHEW CATE, et al.,

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(DOC. 18)

Defendants.

OBJECTIONS, IF ANY, DUE WITHIN
TWENTY-ONE DAYS

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Findings And Recommendations
I.

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Background
Plaintiff Garrison S. Johnson (“Plaintiff”) is a prisoner in the custody of the California

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Department of Corrections and Rehabilitation (“CDCR”), proceeding pro se. This action is

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proceeding on Plaintiff’s complaint, filed October 14, 2010, against Defendants Matthew Cate

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and Kelly Harrington for racial discrimination in violation of the Equal Protection Clause of the

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Fourteenth Amendment. Pending before the Court is Defendants’ motion to dismiss, filed July

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18, 2011. Defs.’ Mot. Dismiss, Doc. 18. Plaintiff filed his opposition on August 5, 2011. Pl.’s

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Opp’n, Doc. 19. Defendants filed their reply on August 12, 2011. Defs.’ Reply, Doc. 20. The

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matter is submitted pursuant to Local Rule 230(l).

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II.

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Motion To Dismiss
Defendants move to dismiss on two grounds: 1) pursuant to Rule 12(b)(6) of the Federal

Rules of Civil Procedure and 2) statute of limitations.
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A.

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“The focus of any Rule 12(b)(6) dismissal . . . is the complaint.” Schneider v. California

Failure To State A Claim

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Dept. of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998). In considering a motion to dismiss for

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failure to state a claim, the court must accept as true the allegations of the complaint in question,

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Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), construe the pleading in

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the light most favorable to the party opposing the motion, and resolve all doubts in the pleader's

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favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). The federal system is one of notice

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pleading. Galbraith v. County of Santa Clara, 307 F.3d 1119, 1126 (9th Cir. 2002).

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Pursuant to Rule 8(a), a complaint must contain “a short and plain statement of the claim

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showing that the pleader is entitled to relief . . .” Fed. R. Civ. P. 8(a). Detailed factual

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allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action,

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supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937,

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1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set

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forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’”

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Id. (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal

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conclusions are not. Id.

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Plaintiff’s complaint alleged the following. Plaintiff has been in CDCR custody since

Summary Of Complaint

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1987, and has been housed at seven prisons. Pl.’s Compl. ¶ 1. Plaintiff was allowed only to vote

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for African American prisoners for the inmate advisory council (“IAC”) at each prison. Id.

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Defendant Cate, the secretary of CDCR, and Defendant Harrington, warden of Kern Valley State

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Prison, where the events alleged occurred, had instituted a policy, practice, or pattern of not

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allowing Plaintiff to participate in the voting process of Mexican and Caucasian prisoners to the

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IAC housing unity representatives. Id. ¶ 2. African American prisoners are not allowed to vote

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for Mexican or Caucasian IAC housing unit representatives. Id.

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On November 23, 2009, Plaintiff, an African American, participated in the election of an

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African American prisoner for IAC representative of C5 housing unit in KVSP. Id. ¶ 3. Only

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African Americans were allowed to vote for black inmates who were running for IAC building
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representative. Id.
Plaintiff alleges that Defendants were aware that in each of their prison institutions

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inmates established self-imposed politics discouraging inmates from voting outside of their race

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for inmates to be IAC representatives and their failure to correct these problems subjected

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Plaintiff to racial discrimination for the past 24 years. Id. ¶ 7.

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2.

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Defendants contend that Plaintiff has failed to state a claim. Defendants contend that

Analysis

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Plaintiff has not alleged specific facts linking Defendants Cate and Harrington to a policy that

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caused the alleged violation. Defs. Mot. Dismiss 4:26-5:17. Defendants contend that Plaintiff’s

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allegations are at most conclusory. Id. Additionally, Defendants contend that Defendant

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Harrington could not have caused violations at each of Plaintiff’s previous prisons over the past

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24 years, as Defendant Harrington is the warden of KVSP. Id. Defendants contend that

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Plaintiff’s allegations are unreasonable inferences and vague.

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Plaintiff contends that he did not allege a violation against Defendants Cate and

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Harrington for the alleged violations at previous prisons, but only for KVSP, when he first

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attempted to vote outside of his race. Pl.’s Opp’n 4:1-14. Plaintiff attaches a declaration to his

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opposition. Ex. A, Pl.’s Decl. ¶ 3. However, a motion to dismiss for failure to state a claim can

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only examine the operative pleading, not declarations in oppositions. Cooper v. Pickett, 137

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F.3d 616, 622 (9th Cir. 1998) (district court may not consider materials outside the complaint and

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pleadings when resolving motion to dismiss for failure to state a claim).

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Defendants’ argument is correct. Plaintiff’s only allegation against Defendants Cate and

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Harrington is that they implemented a policy of not allowing Plaintiff to vote outside of his race

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for IAC representatives. Plaintiff’s allegations are conclusory, as he has not sufficiently linked

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Defendants to such policy.

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The term “supervisory liability,” loosely and commonly used by both courts and litigants

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alike, is a misnomer. Iqbal, 129 S. Ct. at 1949. “Government officials may not be held liable for

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the unconstitutional conduct of their subordinates under a theory of respondeat superior.” Id. at

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1948. Rather, each government official, regardless of his or her title, is only liable for his or her
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own misconduct.

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When the named defendant holds a supervisory position, the causal link between the

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defendant and the claimed constitutional violation must be specifically alleged. See Fayle v.

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Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir.

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1978). To state a claim for relief under § 1983 for supervisory liability, plaintiff must allege

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some facts indicating that the defendant either: personally participated in the alleged deprivation

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of constitutional rights; knew of the violations and failed to act to prevent them; or promulgated

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or “implemented a policy so deficient that the policy ‘itself is a repudiation of constitutional

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rights’ and is ‘the moving force of the constitutional violation.’” Hansen v. Black, 885 F.2d 642,

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646 (9th Cir. 1989) (internal citations omitted); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.

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1989). Plaintiff alleges at most legal conclusions that Defendants participated in the alleged

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deprivation of Plaintiff’s constitutional rights through the promulgation of this alleged policy,

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which is insufficient to state a claim. Iqbal, 129 S. Ct. at 1949.

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B.

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Defendants contend that Plaintiff’s claims violate the statute of limitations because it

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involves a violation that occurred over 24 years ago. Defs.’ Mot. Dismiss 6:17-8:2. Plaintiff

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contends that he did not become aware of the alleged violation until November 23, 2009. Pl.’s

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Opp’n 5-6.

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Statute Of Limitations

Because § 1983 contains no specific statute of limitations, federal courts should borrow

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state statutes of limitations for personal injury actions in § 1983 suits. See Wallace v. Kato, 549

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U.S. 384, 387 (2007); Lukovsky v. City of San Francisco, 535 F.3d 1044, 1048 (9th Cir. 2008).

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Federal courts should also borrow all applicable provisions for tolling the limitations period

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found in state law. Wallace, 549 U.S. at 387. Prior to January 1, 2003, the limitations period for

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an action for a personal injury caused by the wrongful or negligent act of another was one year.

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Cal. Civ. Proc. Code § 340.3 (Deering 2002). Beginning January 1, 1995, prisoners were limited

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to two years tolling during incarceration. Cal. Civ. Proc. Code § 352.1(a) (West 2006). The

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two-year tolling statute, effective January 1, 1995, “applies retroactively as long as a plaintiff had

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a reasonable time after January 1, 1995 to bring suit.” Fink v. Shedler, 192 F.3d 911, 915 (9th
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Cir. 1999). Thus, claims that “accrued before January 1, 1995, are tolled for two years from

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accrual, or until January 1, 1995, whichever occurs later, as long as such an application does not

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result in manifest injustice.” Id. at 916. Federal law determines when a cause of action accrues

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and the statute of limitations begins to run for a § 1983 claim. Lukovsky, 535 F.3d at 1048. A

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federal claim accrues when the plaintiff knows or has reason to know of the injury which is the

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basis of the action. Id.

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Plaintiff contends that his complaint does not violate the statute of limitations, as his suit

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concerns an alleged incident on November 23, 2009. However, as currently alleged in the

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complaint, Plaintiff’s claim is in violation of the statute of limitations. Plaintiff’s pleadings

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concern a discriminatory voting policy for the past 24 years, thus implying Plaintiff’s awareness

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of the violation over 24 years ago. See Compl. ¶ 7. Plaintiff’s complaint, filed October 14, 2010,

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would clearly be untimely. Plaintiff’s declaration attached to his opposition indicates that he did

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not become aware of the violation until November 23, 2009, when he attempted to vote outside

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of his race. However, pleadings cannot be amended via a declaration attached to an opposition.

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See L. R. 220 (amended pleading is to be complete in itself). Thus, Plaintiff’s complaint, as

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currently plead, is in violation of the statute of the limitations.

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C.

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The Court finds that Plaintiff may be able to amend his pleadings to state a cognizable

Leave To Amend

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claim. Thus, leave to amend will be granted. See Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir.

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2000) (en banc). Once filed and served, the Court will screen Plaintiff’s first amended complaint

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pursuant to 28 U.S.C. § 1915A before ordering Defendants to respond. The Court provides the

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following instructions regarding Equal Protection claims and amended pleadings.

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Equal Protection

The Equal Protection Clause . . . is essentially a direction that all persons similarly

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situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432,

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439 (1985) (citing Plyler v. Doe, 457 U.S. 202, 216 (1982)). An equal protection claim may be

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established by showing that the defendant intentionally discriminated against the plaintiff based

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on the plaintiff’s membership in a protected class, Serrano v. Francis, 345 F.3d 1071, 1082 (9th
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Cir. 2003), or that similarly situated individuals were intentionally treated differently without a

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rational relationship to a legitimate state purpose, Village of Willowbrook v. Olech, 528 U.S. 562,

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564 (2000); Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008); North Pacifica

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LLC v. City of Pacifica, 526 F.3d 478, 486 (9th Cir. 2008). A plaintiff must allege sufficient

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facts either showing intentional unlawful discrimination or “that are at least susceptible of an

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inference of discriminatory intent.” Byrd v. Maricopa County Sheriff’s Dep’t, 565 F.3d 1205,

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1212 (9th Cir. 2009) (internal quotations and citation omitted); see Iqbal, 129 S. Ct. at 1949-50.

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2.

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Amended Pleadings

Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but must state what

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each named defendant did that led to the deprivation of Plaintiff’s constitutional or other federal

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rights. Iqbal, 129 S. Ct. at 1949. Although accepted as true, the “[f]actual allegations must be

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[sufficient] to raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555

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(citations omitted). Plaintiff is advised that an amended complaint supersedes the original

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complaint, Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814

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F.2d 565, 567 (9th Cir. 1987), and must be “complete in itself without reference to the prior or

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superseded pleading,” L. R. 220. Plaintiff is warned that “[a]ll causes of action alleged in an

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original complaint which are not alleged in an amended complaint are waived.” King, 814 F.2d

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at 567 (citing to London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981)); accord

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Forsyth, 114 F.3d at 1474.

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III.

Conclusion And Recommendation

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Based on the foregoing, it is HEREBY RECOMMENDED that:

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Defendants’ motion to dismiss, filed July 18, 2011, should be granted;

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2.

Plaintiff’s complaint, filed October 14, 2010, be dismissed for failure to state a

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claim upon which relief may be granted; and

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3.

Plaintiff be granted leave to file a first amended complaint within thirty days from

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the date of service of the District Judge’s order resolving these Findings and

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Recommendations.

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These Findings and Recommendations will be submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-

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one (21) days after being served with these Findings and Recommendations, the parties may file

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written objections with the Court. The document should be captioned “Objections to Magistrate

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Judge’s Findings and Recommendations.” The parties are advised that failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Martinez v.

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Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:
3b142a

November 17, 2011

/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE

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