Naylor v. Allenby et al
FINDINGS and RECOMMENDATIONS to (1) Grant In Part and Deny In Part Defendant's Request for Judicial Notice, and (2) Grant In Part and Deny In Part Defendant's Motion to Dismiss 12 , signed by Magistrate Judge Michael J. Seng on 12/8/14: Matter referred to Judge O'Neill; Fourteen Day Objection Deadline. (Hellings, J)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
TROY MITCHELL NAYLOR,
CLIFF ALLENBY, et al.,
Case No. 1:11-cv-1649-LJO-MJS (PC)
FINDINGS AND RECOMMENDATIONS
TO (1) GRANT IN PART AND DENY IN
PART DEFENDANT’S REQUEST FOR
JUDICIAL NOTICE, AND (2) GRANT IN
PART AND DENY IN PART
DEFENDANT’S MOTION TO DISMISS
(ECF No. 12)
FOURTEEN DAY OBJECTION
Plaintiff is a civil detainee proceeding pro se and in forma pauperis in this civil
rights action brought pursuant to 42 U.S.C. § 1983. (ECF Nos. 1 & 5.) This matter
proceeds against Defendant Duvall on Plaintiff‟s First Amendment retaliation claim and
Fourth Amendment unlawful search claim. (ECF No. 6.)
Before the Court is Defendant‟s motion to dismiss this action under Federal Rule
of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted.
(ECF No. 12.) Plaintiff filed an opposition. (ECF No. 19.) Defendant did not file a reply.
Defendant‟s motion to dismiss is deemed submitted pursuant to Local rule 230(l).
LEGAL STANDARD – MOTION TO DISMISS
A motion to dismiss brought pursuant to Rule 12(b)(6) tests the legal sufficiency
3 of a claim, and dismissal is proper if there is a lack of a cognizable legal theory or the
4 absence of sufficient facts alleged under a cognizable legal theory. Conservation Force
5 v. Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011). In resolving a 12(b)(6) motion, a
6 court‟s review is generally limited to the operative pleading. Daniels-Hall v. Nat‟l Educ.
7 Ass‟n, 629 F.3d 992, 998 (9th Cir. 2010).
To survive a motion to dismiss, a complaint must contain sufficient factual matter,
9 accepted as true, to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal,
10 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
11 (2007)); Conservation Force, 646 F.3d at 1242; Moss v. U.S. Secret Serv., 572 F.3d
12 962, 969 (9th Cir. 2009). The Court must accept the factual allegations as true and draw
13 all reasonable inferences in favor of the non-moving party, Daniels-Hall, 629 F.3d at
14 998, and pro se litigants are entitled to have their pleadings liberally construed and to
15 have any doubt resolved in their favor, Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th
16 Cir. 2012); Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); Silva v. Di Vittorio,
17 658 F.3d 1090, 1101 (9th Cir. 2011); Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).
Plaintiff filed a suit in state court challenging the search of his room and
20 confiscation of his electronic devices by hospital staff. Three days after service of his
21 suit, Defendant retaliated against Plaintiff by conducting another search. Three days
22 later, Defendant confiscated Plaintiff‟s computer and electronic devices. Plaintiff‟s
23 computer and electronic devices were seized and have not been returned.
Defendant argues that he cannot be sued in his official capacity under 28 U.S.C.
26 § 1983, and thus Plaintiff‟s official capacity claims should be dismissed. He also argues
27 that Plaintiff has failed to allege sufficient facts to link Defendant to any retaliatory
28 action, and that Plaintiff‟s claims are contradicted by judicially noticeable facts. Finally,
1 Defendant argues that Plaintiff does not state a First or Fourth Amendment claim for the
2 search and seizure of his computer and electronic device, because he has no
3 constitutional right to possess those devices under California regulations. Defendant
4 asks the Court to take judicial notice of (1) the docket in Plaintiff‟s state court action; (2)
5 an unpublished decision in Allen v. Mayberg, No. 1:10-cv-01973-BLW, 2012 WL
6 3911231 (E.D. Cal. Sept. 7, 2012), reversed in part by 577 Fed. Appx. 728 (9th Cir.
7 2014); and (3) section 4350 of title 9 of the California Code of Regulations.
Request for Judicial Notice
The Court may take judicial notice of documents that are part of the public record
11 to show that a judicial proceeding occurred or that a document was filed in another
12 case. Reyn‟s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006);
13 Lee v. City of Los Angeles, 250 F.3d 668, 689-90 (9th Cir. 2001). Accordingly, the Court
14 may take judicial notice of the docket in Plaintiff‟s pending state action.
The Court may take judicial notice of another court‟s opinion “not for the truth of
16 the facts recited therein, but for the existence of the opinion, which is not subject to
17 reasonable dispute over its authenticity.” Lee, 250 F.3d at
690 (citation omitted).
18 However, Defendant asks the Court to take judicial notice of the opinion in Allen v.
19 Mayberg, not for the existence of the opinion, but as authority for the proposition that
20 civil detainees do not have a constitutional right to possess a computer. This proposition
21 is not judicially noticeable, and the request to take judicial notice of the opinion in Allen
22 should be denied. The Court will address below whether Allen constitutes persuasive
23 authority for the proposition cited.
The Court may take judicial notice of title 9, section 4350 of the California Code
25 of Regulations. See Roemer v. Bd. of Pub. Works of Md., 426 U.S. 736, 742 n.4 (1976).
Although these records are outside the pleadings, they do not convert
27 Defendant‟s motion to dismiss into a motion for summary judgment. Lee, 250 F.3d at
28 189, 688 (9th Cir. 2001); Mack v. South Bay Beer Distributors, Inc., 798 F.2d 1279,
1 1282 (9th Cir. 1986) (“[O]n a motion to dismiss a court may properly look beyond the
2 complaint to matters of public record and doing so does not convert a Rule 12(b)(6)
3 motion to one for summary judgment[.]”).
Motion to Dismiss
Official Capacity Claims
Plaintiff‟s complaint names Defendant in his official and individual capacities.
7 (ECF No. 1 at 4.) Defendant contends that he may not be sued in his official capacity.
8 The Court‟s screening order did not address Plaintiff‟s official capacity claims. (ECF No.
“Official capacity” suits require that a policy or custom of the governmental entity
11 is the moving force behind the violation. McRorie v. Shimoda, 795 F.2d 780, 783 (9th
12 Cir. 1986). Plaintiff‟s complaint does not directly state that a policy or custom motivated
13 the alleged violations. (ECF No. 1.) However, he alleges three separate incidents in
14 which his premises were searched, and in two of those his property was seized. (ECF
15 No. 1 at 7.) In his opposition, Plaintiff states that “a practice of taking property has gone
16 on since operation of the hospital first started.” (ECF No. 19 at 2.) Although not directly
17 stated, the Court finds that the allegations contained in the complaint are sufficient to
18 allow an inference that a policy or custom was the moving force behind the alleged
Nonetheless, Defendant contends that “a state officer in his official capacity in
21 not a „person‟ subject to suit under Section 1983.” (ECF No. 12 at 5.) This is true with
22 respect to claims seeking money damages. Will v. Michigan Dep‟t of State Police, 491
23 U.S. 58, 71 (1989); see also Aholelei v. Dept. of Public Safety, 488 F.3d 1144, 1147
24 (9th Cir. 2007) (citations omitted). It is not true with respect to claims seeking
25 prospective relief. Will, 491 U.S. at n.10; see also Wolfson v. Brammer, 616 F.3d 1045,
26 1065-66 (9th Cir. 2010).
Plaintiff‟s complaint seeks both monetary damages and injunctive relief. Plaintiff‟s
2 claims for money damages against Defendant in his official capacity should be
3 dismissed. His claims for injunctive relief should not.
First and Fourth Amendment Claims
Prior Screening Order
As noted, to survive a Rule 12(b)(6) motion to dismiss, a complaint must contain
7 sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its
8 face. Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555); Moss, 572 F.3d at 969.
9 This is the same standard the Court applies in screening a prisoner‟s complaint to
10 determine whether it states a cognizable claim. Indeed, it is the very standard the Court
11 applied in evaluating Plaintiff's complaint, and which lead to the Court's conclusion that
12 the complaint stated cognizable claims. That is, the Court found that Plaintiff alleged
13 claims which, when accepted as true for pleading purposes, would survive a Rule
14 12(b)(6) motion.
Nothing has since changed.
Nevertheless, Defendant argues that the very pleading which this Court found
17 stated a cognizable claim does not state a cognizable claim and should be dismissed
18 pursuant to Rule 12(b)(6). The Court would prefer not to duplicate its efforts and explain
19 again why it reached the conclusions it did on screening, but the present Motion to
20 Dismiss effectively asks it to do so. Accordingly, the Court will herein address the
21 substantive issues presented by Defendant's motion.
Legal Standard – Retaliation
“Within the prison context, a viable claim of First Amendment retaliation entails
24 five basic elements: (1) An assertion that a state actor took some adverse action
25 against an inmate (2) because of (3) that prisoner‟s protected conduct, and that such
26 action (4) chilled the inmate‟s exercise of his First Amendment rights, and (5) the action
27 did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408
28 F.3d 559, 567-68 (9th Cir. 2005).
In the civil detention context, a search or seizure that is retaliatory violates the
2 Fourth Amendment. Hydrick v. Hunter, 500 F.3d 978, 993 (9th Cir. 2007).
Defendant first contends that the complaint fails to state a claim for retaliation
5 because Plaintiff did not adequately allege that Defendant undertook the search
6 “because of” Plaintiff‟s protected conduct. More specifically, Plaintiff did not allege that
7 Defendant was served with or knew of Plaintiff‟s state court action. Additionally,
8 Defendant contends that the docket in Plaintiff‟s state court action reflects that
9 Defendant Duvall is not a defendant in the state court action, and was not served with
10 Plaintiff‟s pleadings.
The temporal proximity (three days) between the filing and serving of Plaintiff‟s
12 legal documents and the search and seizure is sufficient circumstantial evidence of
13 causation to survive a motion to dismiss, regardless of whether Defendant was named
14 or served in the state court action. Bruce v. Ylst, 351 F.3d 1283, 1289 (9th Cir. 2003)
15 (finding that a prisoner established a triable issue of fact regarding prison officials‟
16 retaliatory motives by raising issues of suspect timing, evidence, and statements); Hines
17 v. Gomez, 108 F.3d 265, 267-68 (9th Cir. 1997); Pratt v. Rowland, 65 F.3d 802, 808
18 (9th Cir. 1995) (“timing can properly be considered as circumstantial evidence of
19 retaliatory intent”). Defendant‟s motion to dismiss on this basis should be denied.
Defendant next contends that Plaintiff fails to state a claim because he has no
21 constitutional right to possess a computer pursuant to section 4350 of title 9 of the
22 California Code of Regulations. The regulation prohibits the possession of “electronic
23 devices with the capability to connect to a wired . . . and/or wireless . . . communications
24 network to send and/or receive information.” Defendant also relies on Allen for this
The District Court‟s decision in Allen, cited by Defendant, concluded that civil
27 detainees have no Fourteenth Amendment interest in the possession of certain
28 electronic devices. However, the United States Court of Appeals for the Ninth Circuit
1 reversed Allen on that basis, concluding that a detainee who alleged that his electronic
2 devices were confiscated without justification had sufficiently alleged a Fourteenth
3 Amendment claim. Thus, Defendant‟s argument based on Allen is unpersuasive.
The issue in this case is not whether Plaintiff had a constitutional right to possess
5 his electronic devices, but rather whether he had the right to be free from unreasonable
6 searches, and to engage in constitutionally protected behavior -- bringing a lawsuit –
7 without suffering retaliation. He has sufficiently alleged these claims. Defendant‟s
8 motion to dismiss on this basis should be denied.
CONCLUSION AND RECOMMENDATION
Based on the foregoing, the Court HEREBY RECOMMENDS that Defendant‟s
11 request for judicial notice (ECF No. 12) be GRANTED IN PART AND DENIED IN PART.
12 Specifically, the Court recommends that the Court take judicial notice of the docket in
13 Plaintiff‟s state court proceeding and section 4350 of title 9 of the California Code of
14 Regulations. Defendants‟ request should otherwise be denied.
The Court FURTHER RECOMMENDS that Defendant‟s motion to dismiss (ECF
16 No. 12) be GRANTED IN PART AND DENIED IN PART. Specifically, the Court
17 recommends that Plaintiff‟s claim for money damages against Defendant in his official
18 capacity be dismissed. Defendants‟ motion should otherwise be denied.
These Findings and Recommendations are submitted to the United States
20 District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1).
22 Recommendations, any party may file written objections with the Court and serve a
23 copy on all parties. Such a document should be captioned “Objections to Magistrate
24 Judge‟s Findings and Recommendations.” Any reply to the objections shall be served
25 and filed within ten days after service of the objections. The parties are advised that
26 failure to file objections within the specified time may result in the waiver of rights on
1 appeal. Wilkerson v. Wheeler, __ F.3d __, __, No. 11-17911, 2014 WL 6435497, at *3
2 (9th Cir. Nov. 18, 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
IT IS SO ORDERED.
December 8, 2014
Michael J. Seng
UNITED STATES MAGISTRATE JUDGE
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