Vasquez v. Mayberg et al
ORDER denying 19 Motion for Relief from Judgment signed by Chief Judge B. Lynn Winmill on 3/27/2014. (Lundstrom, T)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
Case No. 1:10-cv-01973-BLW
AUDREY KING, et al.,
Plaintiff George Vasquez is a civil detainee held at California’s Coalinga State
Hospital (CSH) awaiting trial as an accused sexually violent predator under California’s
Sexually Violent Predator Act (SVPA). This case was case was severed from the
consolidated case of Allen v. King, 1:06-cv-01801-BLW-LMB, and reopened (as were the
individual cases of all remaining plaintiffs in the consolidated cases). Pursuant to the
Court’s August 1, 2013 Memorandum Decision and Order, Plaintiff filed a First
Amended Complaint on September 23, 2013. (Dkt. 11).
On February 7, 2014, the Court dismissed the First Amended Complaint with
prejudice. The Court determined that Plaintiff’s First Amended Complaint failed to state a
claim upon which relief could be granted. (Dkt. 16.) This case is currently on appeal.
Now pending before the Court is Plaintiff’s Motion for Relief from Judgment
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under Federal Rules of Civil Procedure 60(a) and 60(b)(6). (Dkt. 19). The parties are
familiar with the facts of this case, and those facts will not be repeated here except as
necessary to explain the Court’s decision. The Court has concluded that oral argument is
unnecessary. Accordingly, for the following reasons, the Court will deny Plaintiff’s
Standards of Law
Under Rule 60(a), a district court “may correct a clerical mistake or a mistake
arising from oversight or omission whenever one is found in a judgment, order, or other
part of the record.” However, once an appeal has been docketed and while that appeal is
pending, “such a mistake may be corrected only with the appellate court’s leave.” Id.
Under Rule 60(b), a court may grant a party relief from a final judgment for the
following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly
discovered evidence; (3) fraud, misrepresentation, or misconduct by an opposing party;
(4) the judgment is void; (5) the judgment has been satisfied, released or discharged; or
(6) any other reason that justifies relief. Fed. R. Civ. P. 60(b). The last catch-all provision
in Rule 60(b)(6) should only be granted “sparingly as an equitable remedy to prevent
manifest injustice.” United States v. Washington, 98 F.3d 1159, 1163 (9th Cir. 1996)
(internal quotation marks omitted).
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With respect to Plaintiff’s 60(a) request for correction of clerical mistakes,
Plaintiff takes issue with the caption of the case as set forth in the Court’s February 7,
2014 Order, which listed Audrey King and Jack Carter as Defendants. When this case
was still consolidated with the cases of other individuals residing at CSH, the Court
substituted as Defendants Audrey King, the Acting Executive Director for CSH, and
Andrew Berard, the Acting Chief of Protective Services for CSH. (Dkt. 8.) The Court
dismissed all other Defendants from the consolidated actions. Because this Order applied
to all of the consolidated cases, the caption of Plaintiff’s case was, when it was reopened,
changed to reflect that Defendants King and Berard were the Defendants in the case. (See
In the consolidated case, the Court was later informed by Defendants’ counsel that
Andrew Berard was no longer the Acting Chief of Protective Services; rather, the
individual holding that position was now Jack Carter. (See Allen v. King, 1:06-cv-01801BLW-LMB, Dkt. 171.) Therefore, the Court substituted Jack Carter as a Defendant in
place of Andrew Berard in that separate case.
Plaintiff is correct that Mr. Carter was not substituted as a Defendant in Plaintiff’s
individual case. The Court’s use of Mr. Carter’s name in the caption of its February 7,
2014 Order was a clerical mistake. Therefore, the Court would grant this portion of
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Plaintiff’s Motion if given leave to do so by the Ninth Circuit. Unless such leave is
granted, however, this Court does not have the authority correct the mistake. Fed. R. Civ.
P. 60(a). This clerical mistake does not alter the Court’s substantive analysis of Plaintiff’s
First Amended Complaint.
Plaintiff’s remaining claims regarding the caption of the February 7 Order are
without merit. As the Court explained in its February 7 Order, Plaintiff’s allegations
failed to state a claim upon which relief could be granted, and Plaintiff was not allowed to
proceed against any Defendant, including Pam Ahlin, Coalinga State Hospital, Cliff
Allenby, or Edmund G. Brown—the defendants listed in Plaintiff’s proposed First
Amended Complaint. Thus, these individuals properly were not included in the caption of
the February 7 Order.
Finally, Plaintiff takes issue with the Court’s use of the word “committed” when it
described Plaintiff as “a civil detainee committed to Coalinga State Hospital . . . , where
he is awaiting trial as an accused sexually violent predator.” (Dkt. 16 at 2.) Plaintiff states
that he has never been “committed” because he has not been adjudicated a sexually
The Court’s language of “commitment” was perhaps a bit imprecise, but it was
clear from the Court’s Order that Plaintiff has not been adjudicated a sexually violent
predator, but rather is detained at CSH “awaiting trial as an accused sexually violent
predator.” Because the description of Plaintiff’s status as a civil detainee was clear from
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the context of the Court’s statement, the Court will deny this portion of Plaintiff’s
Plaintiff’s primary complaint under Rule 60(b)(6) appears to be that the Court did
not “acknowledge or consider” Plaintiff’s individual claims when his suit was joined” in
the consolidate cases. (Dkt. 19 at 3.) However, the Court did consider Plaintiff’s
individual claims in its August 1, 2013 Order and determined that they did not appear to
state a claim for relief:
[T]he Court has reconsidered some of the allegations if
previously identified as potentially giving rise to a viable
claim, and determined that some of those allegations—such as
those relating to Plaintiff’s property and movie
claims—appear not to state a colorable claim for relief.
(Dkt. 8 at 19.) However, rather than enter judgment against Plaintiff at that time, the
Court allowed Plaintiff an opportunity to file an amended complaint, which he did.
The Court reviewed the First Amended Complaint and determined that it failed to
state a viable claim for relief. (Dkt. 16.) Any claims that Plaintiff had included in his
initial complaint, but did not include in his First Amended Complaint, are deemed
abandoned. See Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997) (“[An]
amended complaint supersedes the original, the latter being treated thereafter as
non-existent.”), overruled in part on other grounds by Lacey v. Maricopa County, 693
F.3d 896, (9th Cir. 2012) (en banc); Hal Roach Studios, Inc. v. Richard Feiner and Co.,
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Inc., 896 F.2d 1542, 1546 (9th Cir. 1990) (holding that the district court erred by entering
judgment against a party named in the initial complaint, but not in the amended
complaint). The Court carefully reviewed and considered Plaintiff’s initial Complaint, as
well as his First Amended Complaint, and made its decision based on Plaintiff’s own
allegations in those pleadings.
Finally, Plaintiff argues that the First Amended Complaint added an “extra
element” to his claim that he should be allowed to possess a computer at CSH and that the
Court ignored that element. (Dkt. 11 at 4.) This extra element is Plaintiff’s contention that
he had a contract1 allowing him to use a computer and, therefore, a state-created property
interest protected by the Due Process Clause. (Id.)
These allegations do not state a due process claim, because the mere fact that a
contract might have existed at some point in time does not plausibly suggest that such a
contract, by its terms, granted Plaintiff a permanent right to possess a computer even if
the state policies regarding computers at CSH changed (which they did). Plaintiff’s
generalized statements and legal arguments do not support a plausible inference that state
officials changed the computer policy as a form of punishment. See United States v.
Salerno, 481 U.S. 739, 746-47 (1987); Bell v. Wolfish, 441 U.S. 520, 535 (1979). As the
Court explained in previous Orders, the right of a civil detainee to be free from conditions
that amount to punishment is not violated “if restrictions are but an incident of some other
If Plaintiff wishes to assert a breach of contract claim, he should do so in state court.
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legitimate government purpose.” (Dkt. 8 at 6, quoting Valdez v. Rosenbaum, 302 F.3d
1039, 1045 (9th Cir. 2002).) Plaintiff’s allegations of due process violations do not allow
the Court “to draw the reasonable inference that . . . defendant[s] [are] liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Plaintiff has not come forward with any compelling reason for the Court to reopen
Plaintiff’s case under the catch-all provision of Rule 60(b), and Plaintiff therefore has
failed to meet his heavy burden of showing that such relief must be granted to prevent
manifest injustice. Washington, 98 F.3d at 1163.
IT IS ORDERED that Plaintiff’s Motion for Relief from Judgment under Rules
60(a) and 60(b)(6) (Dkt. 19) is DENIED. Although the Court has no authority to grant
Plaintiff’s request to correct the clerical mistake identified above, see Fed. R. Civ. P.
60(a), it would do so if given leave by the Ninth Circuit Court of Appeals.
DATED: March 27, 2014
B. LYNN WINMILL
United States District Court
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