Lipsey v. SATF Prisons AD-Seg Property Officers, et al.

Filing 51

FINDINGS and RECOMMENDATIONS to Dismiss; Twenty-One (21) Day Deadline; Clerk of Court to ASSIGN a District Judge signed by Magistrate Judge Sheila K. Oberto on 4/18/2018. Referred to Judge Lawrence J. O'Neill. New Case Number is 1:15-cv-00691-LJO-SKO(PC). (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CHRISTOPHER LIPSEY, Jr.,

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Plaintiff,

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v.
SATF PRISONS AD-SEG PROPERTY
OFFICERS, et al.,
Defendants.

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Case No. 1:15-cv-00691-SKO (PC)
FINDINGS AND RECOMMENDATION
TO DISMISS
(Docs. 23, 24)
TWENTY-ONE (21) DAY DEADLINE
CLERK OF COURT TO ASSIGN A
DISTRICT JUDGE

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I.

Plaintiff, Christopher Lipsey, Jr., a state prisoner proceeding pro se and in forma pauperis,

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BACKGROUND

filed this civil rights action pursuant to 42 U.S.C. § 1983 and consented to Magistrate Judge
jurisdiction. (Docs. 1, 5.) On April 20, 2017, the undersigned issued an order finding that
Plaintiff failed to state any cognizable claims and dismissing the action with prejudice. (Doc. 41.)
Plaintiff appealed to the Ninth Circuit which vacated the dismissal order and remanded the action
in light of Williams v. King, 875 F.3d 500 (9th Cir. 2017). (Docs. 43, 44, 50.) For the reasons

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discussed below, this action is reopened and it is recommended that it be DISMISSED.
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//
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1 II.

WILLIAMS v. KING

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On November 9, 2017, the Ninth Circuit Court of Appeals held that 28 U.S.C. § 636(c)(1)

3 requires the consent of all parties named in a civil action before a Magistrate Judge’s jurisdiction
4 vests for issuance of dispositive orders. Williams v. King, 875 F.3d 500 (9th Cir. 2017).
5 Accordingly, a Magistrate Judge does not have jurisdiction to dismiss a case or claim based solely
6 on the plaintiff’s consent. Id.
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The defendants were not yet served when this action was dismissed, and therefore had

8 neither appeared nor consented to Magistrate Judge jurisdiction. Because the named defendants
9 had not consented, the prior screening and dismissal of this action was invalid under Williams.
10 The undersigned nevertheless stands by the analysis in the dismissal order and recommends that
11 this action be DISMISSED with prejudice.
12 III.

FINDINGS

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A.

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Screening of the Second Amended Complaint
1.

Screening Requirement

The Court is required to screen complaints brought by prisoners seeking relief against a

16 governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a).
17 The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are
18 legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that
19 seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),
20 (2). “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court
21 shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to
22 state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).
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B.

Pleading Requirements
1.

Federal Rule of Civil Procedure 8(a)

“Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited

26 exceptions," none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534
27 U.S. 506, 512 (2002); Fed. R. Civ. Pro. 8(a). A complaint must contain “a short and plain
28 statement of the claim showing that the pleader is entitled to relief . . . .” Fed. R. Civ. Pro. 8(a).
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1 “Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and
2 the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512.
3

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

4 cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556
5 U.S. 662, 678 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Plaintiff
6 must set forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its
7 face.’” Iqbal, 556 U.S. at 678, quoting Twombly, 550 U.S. at 555. Factual allegations are
8 accepted as true, but legal conclusions are not. Iqbal, at 678; see also Moss v. U.S. Secret Service,
9 572 F.3d 962, 969 (9th Cir. 2009); Twombly, 550 U.S. at 556-557.
10

While “plaintiffs [now] face a higher burden of pleadings facts . . . ,” Al-Kidd v. Ashcroft,

11 580 F.3d 949, 977 (9th Cir. 2009), the pleadings of pro se prisoners are still construed liberally
12 and are afforded the benefit of any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).
13 However, “the liberal pleading standard . . . applies only to a plaintiff’s factual allegations,” Neitze
14 v. Williams, 490 U.S. 319, 330 n.9 (1989), “a liberal interpretation of a civil rights complaint may
15 not supply essential elements of the claim that were not initially pled,” Bruns v. Nat'l Credit Union
16 Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268
17 (9th Cir. 1982), and courts are not required to indulge unwarranted inferences, Doe I v. Wal-Mart
18 Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).
19 The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and “facts that are
20 ‘merely consistent with’ a defendant’s liability” fall short of satisfying the plausibility standard.
21 Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.
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2.

Linkage and Causation

Section 1983 provides a cause of action for the violation of Plaintiff’s constitutional or

24 other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d
25 1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006);
26 Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). “Section 1983 is not itself a source of
27 substantive rights, but merely provides a method for vindicating federal rights elsewhere
28 conferred.” Crowley v. Nevada ex rel. Nevada Sec’y of State, 678 F.3d 730, 734 (9th Cir. 2012)
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1 (citing Graham v. Connor, 490 U.S. 386, 393-94 (1989)) (internal quotation marks omitted). To
2 state a claim, Plaintiff must allege facts demonstrating the existence of a link, or causal
3 connection, between each defendant’s actions or omissions and a violation of his federal rights.
4 Lemire v. California Dep’t of Corr. and Rehab., 726 F.3d 1062, 1074-75 (9th Cir. 2013); Starr v.
5 Baca, 652 F.3d 1202, 1205-08 (9th Cir. 2011).
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Plaintiff’s allegations do not demonstrate that each defendant personally participated in the

7 deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). As discussed
8 below, Plaintiff fails to present factual allegations sufficient to state plausible claims for relief.
9 Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The
10 mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 556 U.S. at
11 678; Moss, 572 F.3d at 969.
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C.

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This is Plaintiff’s third pleading attempt. Plaintiff, who is currently incarcerated at High

The Second Amended Complaint

14 Desert State Prison (“HDSP”) in Susanville, complains of incidents that occurred while he was
15 housed at the California State Prison in Corcoran (“CSP-Cor”). Plaintiff names Librarians Moser
16 and Doe #1; Property Officers Magana and Urban; Appeals Coordinators Pacillas, Goree, Cribbs,
17 Jasso, and Heck; Officers Hernandez, Doe #2, and Doe #3; Sergeant Case; and Warden Davey as
18 Defendants. Plaintiff sets forth four claims in the SAC and seeks monetary damages and
19 injunctive relief.
As discussed below, Claims #1-3 fail to state a claim for which relief may be granted under

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21 28 U.S.C. § 1915A(b)(1). Since Plaintiff has had multiple opportunities to amend these claims
22 and has twice been given the applicable legal standards (see Docs. 17, 29), further amendment
23 need not be granted as it would be futile. Akhtar v. Mesa, 698 F.3d 1202, 1212-13 (9th Cir. 2012).
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24 Although Claim #4 may state a cognizable claim, it is based on events that occurred nearly a year

25 after Plaintiff initiated this action which are unrelated to the claims initially alleged in this action.
26 This exceeds the leave to amend granted to Plaintiff and improperly joins a new claim and
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The Court expresses no opinion regarding whether Claim #4 “contain[s] sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, (2007)); see also Fed. R. Civ. P. 12(b)(6).

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1 defendants. Thus, the SAC is properly dismissed without leave to amend, resulting in closure of
2 this case.
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D.

Plaintiff’s Claims
1.

Claim #1

In Claim #1, Plaintiff alleges that, in 2011, he repeatedly tried to obtain documents from

6 Librarian Moser and Doe #1, but they were “deliberately indifferent to Plaintiff’s access to
7 courts,” and that Doe #1 was “deliberately indifferent by not sending him caselaw (sic) when he
8 requested them or scheduling Plaintiff law library access in 2011.” (Doc. 36, p. 6.) Plaintiff
9 alleges that “not having the dates he received actual access to the library is preventing Plaintiff
10 from substantiating his tolling claim in Federal court, and is the actual injury.” (Id., p. 7.)
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a.

Deliberate Indifference

Deliberate indifference is the standard for claims under the Eighth Amendment. The

13 Eighth Amendment protects prisoners from inhumane methods of punishment and from inhumane
14 conditions of confinement. Farmer v. Brennan, 511 U.S. 825 (1994); Morgan v. Morgensen, 465
15 F.3d 1041, 1045 (9th Cir. 2006). Thus, no matter where they are housed, prison officials have a
16 duty to ensure that prisoners are provided adequate shelter, food, clothing, sanitation, medical
17 care, and personal safety. Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000) (quotation marks
18 and citations omitted). To establish a violation of the Eighth Amendment, the prisoner must
19 “show that the officials acted with deliberate indifference. . . .” Labatad v. Corrections Corp. of
20 America, 714 F.3d 1155, 1160 (9th Cir. 2013) (citing Gibson v. County of Washoe, 290 F.3d 1175,
21 1187 (9th Cir. 2002).
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The deliberate indifference standard involves both an objective and a subjective prong.

23 First, the alleged deprivation must be, in objective terms, “sufficiently serious.” Farmer at 834.
24 Second, subjectively, the prison official must “know of and disregard an excessive risk to inmate
25 health or safety.” Id. at 837; Anderson v. County of Kern, 45 F.3d 1310, 1313 (9th Cir. 1995).
26

Plaintiff’s allegations in Claim #1 fail to show that he was exposed to an excessive risk to

27 his health or safety of which the named defendants were aware and disregarded. The inability to
28 access case law or the law library when needed does not amount to an excessive risk to Plaintiff’s
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1 health or safety. Claim #1 does not state a cognizable deliberate indifference claim under the
2 Eight Amendment.
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b.

Access to Courts (Law Library Access)

As stated in both of the prior screening orders in this case, inmates have a fundamental

5 constitutional right of access to the courts. Lewis v. Casey, 518 U.S. 343, 346 (1996); Silva v. Di
6 Vittorio, 658 F.3d 1090, 1101 (9th Cir. 2011); Phillips v. Hust, 588 F.3d 652, 655 (9th Cir. 2009).
7 To state a viable claim for relief, Plaintiff must show that he suffered an actual injury, which
8 requires “actual prejudice to contemplated or existing litigation.” Greene, 648 F.3d at 1018 (citing
9 Lewis, 518 U.S. at 348) (internal quotation marks omitted); Christopher v. Harbury, 536 U.S. 403,
10 415 (2002); Lewis, 518 U.S. at 351; Phillips, 588 F.3d at 655.
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In either instance, “the injury requirement is not satisfied by just any type of frustrated

12 legal claim.” Lewis, 518 U.S. at 354. Inmates do not enjoy a constitutionally protected right “to
13 transform themselves into litigating engines capable of filing everything from shareholder
14 derivative actions to slip-and-fall claims.” Id. at 355. Instead, the type of legal claim protected is
15 limited to direct criminal appeals, habeas petitions, and civil rights actions such as those brought
16 under section 1983 to vindicate basic constitutional rights. Id. at 354 (quotations and citations
17 omitted). “Impairment of any other litigating capacity is simply one of the incidental (and
18 perfectly constitutional) consequences of conviction and incarceration.” Id. at 355 (emphasis in
19 original).
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Moreover, when a prisoner asserts that he was denied access to the courts and seeks a

21 remedy for a lost opportunity to present a legal claim, he must show: (1) the loss of a non22 frivolous or arguable underlying claim; (2) the official acts that frustrated the litigation; and (3) a
23 remedy that may be awarded as recompense but that is not otherwise available in a future suit.
24 Phillips v. Hust, 477 F.3d 1070, 1076 (9th Cir.2007) (citing Christopher, 536 U.S. at 413-414,
25 overruled on other grounds, Hust v. Phillips, 555 U.S. 1150, 129 S.Ct. 1036, (2009)).
26 Despite having been provided the standards for an access to courts claim on two occasions,
27 Plaintiff fails to set forth any allegations to discern what type of “Federal” claim he was frustrated
28 from pursuing, or any facts upon which to discern whether his underlying claim was “non6

1 frivolous or arguable.” Although he alleges that Librarian Moser and the Doe defendant did not
2 give him case-law or law library access pursuant to his request, this alone is insufficient to show
3 they acted to frustrate his litigation efforts. Nor does Plaintiff allege any remedy that may be
4 awarded but is not otherwise available in a future suit. Phillips, 477 F.3d at 1076. Since Claim #1
5 is not cognizable, it should be dismissed with prejudice.
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2.

Claim #2

In Claim #2, Plaintiff alleges that Officer Magana, Sgt. Case, and “the three appeal

8 coordinators conspired to retaliate against Plaintiff for filing a 602 and preliminary injunction” in
9 acts that “were carried out from 9-23-14 to 1-22-15.” (Doc. 36, p. 8.) Plaintiff alleges that, as a
10 result, he was deprived of a TV, “about 5 CDs and other property,” but he acknowledges that this
11 “is irrelevant because Plaintiff was reimbursed for them.” (Id.)
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a.

Conspiracy

As quoted above, Plaintiff uses the word “conspired” in Claim #2. However, mere use of

14 that word is insufficient to state a cognizable conspiracy claim.
15

A claim brought for violation of section 1985(3) requires “four elements: (1) a conspiracy;

16 (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the
17 equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act
18 in furtherance of this conspiracy; (4) whereby a person is either injured in his person or property
19 or deprived of any right or privilege of a citizen of the United States.” Sever v. Alaska Pulp Corp.,
20 978 F.2d 1529, 1536 (9th Cir. 1992) (citation omitted). A claim for violation of section 1985(3)
21 requires the existence of a conspiracy and an act in furtherance of the conspiracy. Holgate v.
22 Baldwin, 425 F.3d 671, 676 (9th Cir. 2005) (citation omitted). A mere allegation of conspiracy is
23 insufficient to state a claim. Id. at 676-77. “A racial, or perhaps otherwise class-based,
24 invidiously discriminatory animus is an indispensable element of a section 1985(3) claim.”
25 Sprewell v. Golden State Warriors, 266 F.3d 979, 989 (9th Cir. 2001) (quotations and citation
26 omitted). Restraint must be exercised in extending section 1985(3) beyond racial prejudice.
27 Butler v. Elle, 281 F.3d 1014, 1028 (9th Cir. 2002).
28 / / /
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1

Any conspiracy claim that Plaintiff may have intended to allege is not cognizable as he

2 simply suggests that Officer Magana, Sgt. Case and the three appeals coordinators conspired with
3 each other. Bare allegations that a group of defendants conspired to harass and/or retaliate against
4 Plaintiff are conclusory at best. See Iqbal, 556 U.S. at 678. Plaintiff also fails to show any racial
5 or class-based invidiously discriminatory animus on the part of any of the defendants.
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b.

Retaliation

Prisoners have a First Amendment right to file grievances against prison officials and to be

8 free from retaliation for doing so. Waitson v. Carter, 668 F.3d 1108, 1114-1115 (9th Cir. 2012);
9 Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir.2009). A retaliation claim has five elements. Id.
10 at 1114.
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First, the plaintiff must allege that the retaliated-against conduct is protected. Id. The

12 filing of an inmate grievance is protected conduct, Rhodes v. Robinson, 408 F.3d 559, 568 (9th
13 Cir. 2005), as are the rights to speech or to petition the government, Rizzo v. Dawson, 778 F.2d
14 527, 532 (9th Cir. 1985); see also Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989);
15 Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995).
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Second, the plaintiff must show the defendant took adverse action against the plaintiff.

17 Rhodes, at 567. The adverse action need not be a full-fledged independent constitutional
18 violation. Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995). “[T]he mere threat of harm can be
19 an adverse action. . . .” Brodheim, 584 F.3d at 1270. Not every allegedly adverse action will be
20 sufficient to support a claim under section 1983 for retaliation. In the prison context, cases in this
21 Circuit addressing First Amendment retaliation claims involve situations where action taken by
22 the defendant was clearly adverse to the plaintiff. See e.g. Rhodes, 408 F.3d at 568 (arbitrary
23 confiscation and destruction of property, initiation of a prison transfer, and assault in retaliation for
24 filing grievances); Bruce v, Ylst, 351 F.3d 1283, 1288 (9th Cir. 2003) (retaliatory validation as a
25 gang member for filing grievances); Hines v. Gomez, 108 F.3d 265, 267(9th Cir. 1997) (retaliatory
26 issuance of false rules violation and subsequent finding of guilt); Pratt, 65 F.3d at 806 (retaliatory
27 prison transfer and double-cell status); Valandingham, 866 F.2d at 1138 (inmate labeled a snitch
28 and approached by other inmates and threatened with harm as a result); Rizzo, 778 F.2d at 530-32
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1 (retaliatory reassignment out of vocational class and transfer to a different prison).
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Third, the plaintiff must allege a causal connection between the adverse action and the

3 protected conduct. Waitson, 668 F.3d at 1114. “[A] plaintiff alleging retaliation for the exercise of
4 constitutionally protected rights must initially show that the protected conduct was a ‘substantial’
5 or ‘motivating’ factor in the defendant’s decision.” Soranno’s Gasco, Inc. v. Morgan, 874 F.2nd
6 1310, 1314 (9th Cir. 1989) (quoting Mt. Healthy City School Dist. Bd. Of Educ. v. Doyle, 429 U.S.
7 274, 287 (1977)). Because direct evidence of retaliatory intent rarely can be pleaded in a
8 complaint, allegations relating a chronology of events from which retaliation can be inferred are
9 sufficient to survive dismissal. See Pratt, 65 F.3d at 808 (“timing can properly be considered as
10 circumstantial evidence of retaliatory intent”); Murphy v. Lane, 833 F.2d 106, 108-09 (7th
11 Cir.1987).
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Fourth, the plaintiff must allege that the “official’s acts would chill or silence a person of

13 ordinary firmness from future First Amendment activities.” Robinson, 408 F.3d at 568 (internal
14 quotation marks and emphasis omitted). “[A] plaintiff who fails to allege a chilling effect may
15 still state a claim if he alleges he suffered some other harm,” Brodheim, 584 F.3d at 1269, that is
16 “more than minimal,” Robinson, 408 F.3d at 568 n.11. That the retaliatory conduct did not chill
17 the plaintiff from suing the alleged retaliator does not defeat the retaliation claim at the motion to
18 dismiss stage. Waitson, 668 F.3d at 1114 (citing Robinson, at 569).
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Fifth, the plaintiff must allege “that the prison authorities’ retaliatory action did not

20 advance legitimate goals of the correctional institution. . . .” Rizzo v. Dawson, 778 F.2d 527, 532
21 (9th Cir.1985). “A plaintiff successfully pleads this element by alleging, in addition to a
22 retaliatory motive, that the defendant’s actions were arbitrary and capricious, or that they were
23 unnecessary to the maintenance of order in the institution.” Waitson, 668 F.3d at 1115 (quotations
24 and citations omitted).
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Plaintiff was previously instructed that while he need only allege facts sufficient to support

26 a plausible claim for relief, the mere possibility of misconduct is not sufficient, Iqbal, 556 U.S. at
27 678-79, and the Court is “not required to indulge unwarranted inferences,” Doe I v. Wal-Mart
28 Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).
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1 The conduct identified by Plaintiff as retaliatory must have been motivated by his engaging in a
2 protected activity, and the conduct must not have reasonably advanced a legitimate penological
3 goal. Brodheim, 584 F.3d at 1271-72 (citations omitted). Thus, the mere allegation that Plaintiff
4 engaged in protected activity, without knowledge resulting in animus by a Defendant, is
5 insufficient to establish that Plaintiff’s protected activity was the motivating factor behind a
6 Defendant’s actions.
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Plaintiff’s allegations that Officer Magana, Sgt. Case, and the appeals coordinators

8 retaliated against him for filing a 602 and preliminary injunction based on acts they “carried out
9 from 9-23-14 to 1-22-15” are insufficient. Although Plaintiff’s allegations show protected
10 conduct, he fails to allege facts to establish how these defendants knew that Plaintiff filed a 602
11 and preliminary injunction; what adverse actions Plaintiff believes they took against him which
12 were sufficient to chill a person of ordinary firmness from future First Amendment activities; how
13 their adverse acts toward Plaintiff were motivated by animus from Plaintiff having filed a 602 and
14 preliminary injunction; and why their acts did not advance legitimate penological goals.
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In sum, Claim #2 is not cognizable and should be dismissed with prejudice.
3.

Claim #3

In Claim #3, Plaintiff alleges his TV began to malfunction in late 2011 and that he

18 contacted the vendor who said they would reimburse Plaintiff if the officers would “verify it.”
19 (Doc. 36, pp. 9-10.) Plaintiff told Officer Urban this “for many months before he finally decided
20 to take the TV to the mailroom” to be returned to the vendor, even though Plaintiff showed Officer
21 Urban the paper which stated that all he had to do was call the vendor and verify the TV was
22 damaged. (Id.) Plaintiff states that “the state has not provided an adequate remedy.” (Id.)
23 Plaintiff further alleges Appeals Coordinators Jasso and Heck conspired to deprive Plaintiff a TV
24 “by their circumvention during appeals.” (Id.)
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26

a.

Due Process

The Due Process Clause protects prisoners from being deprived of property without due

27 process of law, Wolff v. McDonnell, 418 U.S. 539, 556 (1974), and prisoners have a protected
28 interest in their personal property, Hansen v. May, 502 F.2d 728, 730 (9th Cir. 1974). However,
10

1 while an authorized, intentional deprivation of property is actionable under the Due Process
2 Clause, see Hudson v. Palmer, 468 U.S. 517, 532, n.13 (1984) (citing Logan v. Zimmerman Brush
3 Co., 455 U.S. 422 (1982)); Quick v. Jones, 754 F.2d 1521, 1524 (9th Cir. 1985), neither negligent
4 nor unauthorized intentional deprivations of property by a state employee “constitute a violation of
5 the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a
6 meaningful post-deprivation remedy for the loss is available,” Hudson v. Palmer, 468 U.S. 517,
7 533 (1984). Despite twice having been advised of these standards, Plaintiff’s allegations fail to set
8 forth a basis to find that his difficulty getting correctional personnel to contact the vendor about
9 his damaged TV was the result of an authorized deprivation of his property. His allegations
10 instead reveal that it was either a negligent or an unauthorized intentional deprivation. In this
11 circumstance, California law provides an adequate post-deprivation remedy for Plaintiff’s loss and
12 he therefore may not pursue a due process claim arising out of the unlawful confiscation of his
13 personal property. Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994)(citing Cal. Gov’t Code
14 §§810-895). It is noteworthy that Plaintiff has apparently already received a post-deprivation
15 remedy since, in Claim #2, he states that he was reimbursed for his “TV, about 5 CD’s and other
16 property.” (Doc. 36, p. 8.)
17

Finally, as in Claim #2, any conspiracy claim Plaintiff may have intended to allege is not

18 cognizable as he does little more than suggest that Officer Urbano and Appeals Coordinators Jasso
19 and Heck conspired together. Bare allegations that a group of defendants conspired to harass
20 and/or retaliate against Plaintiff are conclusory at best. See Iqbal, 556 U.S. at 678. Plaintiff also
21 fails to establish any conspiratorial racial or class-based invidiously discriminatory animus on the
22 part of any of the defendants in this claim.
23
24
25

In sum, Claim #3 is not cognizable and should be dismissed with prejudice.
4.

Claim #4

In Claim #4, Plaintiff alleges that on March 27, 2016, Officer Hernandez and Doe #2

26 escorted him to his cell. (Doc. 36, pp. 11-13.) At the door of his cell, Plaintiff kicked off his
27 shoes as required by prison procedures. (Id.) In doing so, Plaintiff lost his balance. (Id.) Officer
28 Hernandez was mad at Plaintiff for previously ridiculing Officer Doe #2 (for making a mistake
11

1 when Officer Doe #2 had previously alleged Plaintiff had some contraband, but none was found
2 after “an extensive strip search in front of a dozen individuals”). (Id.) While Plaintiff was off
3 balance at his cell door, Officer Hernandez “used the opportunity of Plaintiff’s off-balance
4 movement to claim Plaintiff pulled him in the cell and assaulted him.” (Id.) Officer Hernandez
5 threw Plaintiff into the cell and Officer Hernandez “and the Does” punched Plaintiff for about two
6 minutes. (Id.) Although Plaintiff was able to put the handcuffs in front of his face for protection,
7 he still suffered “a busted nose and a black eye.” (Id.) Plaintiff also alleges that Warden “Davey
8 didn’t have these officer[s] properly trained and failed to investigate the incident.” (Id.) For the
9 reasons set forth above, Plaintiff may not proceed with Claim #4 in this action.
10
11

a.

Scope of Leave to Amend

As an initial matter, the SAC is the first time that Plaintiff named Officer Hernandez as a

12 defendant in this action. The allegations of excessive force against Officer Hernandez and the Doe
13 officers are also not factually related to any of the other claims on which Plaintiff has been
14 proceeding on in this action. When leave to amend was granted, Plaintiff was expressly prohibited
15 from changing the nature of this suit by adding new, unrelated claims in his amended pleading.
16 (See Doc. 17, p. 7; Doc. 29, p. 15 (both citing George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007)
17 (no “buckshot” complaints)). Claim #4 is unrelated—both in factual allegations and defendants
18 named—to Plaintiff’s other claims. Accordingly, this exceeds the leave to amend Plaintiff was
19 granted in this case.
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21

b.

Improper Joinder

Plaintiff was also previously placed on notice that he may not bring unrelated claims

22 against unrelated parties in a single action. Fed. R. Civ. P. 18(a), 20(a)(2); Owens v. Hinsley, 635
23 F.3d 950, 952 (7th Cir. 2011); George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Plaintiff may
24 bring a claim against multiple defendants so long as (1) the claim arises out of the same
25 transaction or occurrence, or series of transactions and occurrences, and (2) there are common
26 questions of law or fact. Fed. R. Civ. P. 20(a)(2); Coughlin v. Rogers, 130 F.3d 1348, 1351 (9th
27 Cir. 1997); Desert Empire Bank v. Insurance Co. of North America, 623 F.3d 1371, 1375 (9th Cir.
28 1980). Only if the defendants are properly joined under Rule 20(a) will the Court review the other
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1 claims to determine if they may be joined under Rule 18(a), which permits the joinder of multiple
2 claims against the same party.
3

Claim #4 is unrelated to Claims #1-3. Plaintiff’s injuries alleged in each claim “are

4 distinct and independent from one another, and [he] has not alleged any legal relationship between
5 them.” Rush v. Sport Chalet, Inc., 779 F.3d 973, 975 (9th Cir. 2015). Dismissal, rather than
6 severance of improperly joined claims/parties is proper only if prejudice to Plaintiff will not result
7 when a prejudice analysis is conducted, including whether “loss of otherwise timely claims if new
8 suits are blocked by statutes of limitations.” Id. (quoting DirecTV, Inc. v. Leto, 467 F.3d 842, 8469 47 (3d Cir.2006); ref Elmore v. Henderson, 227 F.3d 1009, 1011-13 (7th Cir.2000) (“The judge
10 could and should have allowed [plaintiff's] claims against [a co-defendant] to continue as a
11 separate suit so that it would not be time-barred.”)). Claim #4 should be severed if Plaintiff would
12 be barred by the statute of limitations from bringing this claim in a new action. However, as
13 discussed below, Claim #4 would not be time-barred and need not be severed. Thus, dismissal is
14 proper.
15
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c.

Statute of Limitations

The applicable statute of limitations begins to run upon accrual of the Plaintiff’s claim—

17 i.e., when he knows or has reason to know of the injury that is the basis of his action, Douglas v.
18 Noelle, 567 F.3d 1103, 1109 (9th Cir. 2009), which usually occurs on the date of injury, Ward v.
19 Westinghouse Canada, Inc., 32 F.3d 1405, 1407 (9th Cir.1994). Actions under section 1983 fall
20 under the limitations period from the forum state’s statute of limitations for personal injury torts,
21 see Wallace v. Kato, 549 U.S. 384, 387 (2007), which is two years in California, see Maldonado v.
22 Harris, 370 F.3d 945, 954 (9th Cir. 2004); Cal. Civ. Proc. Code § 335.1.
23

The two-year statute of limitations period is tolled for two years if the plaintiff is a prisoner

24 serving a term of less than life which gives such prisoners effectively four years to file a federal
25 suit. See Cal. Civ. Proc. Code § 352.1(a); Azer v. Connell, 306 F.3d 930, 936 (9th Cir. 2002)
26 (federal courts borrow the state’s California’s equitable tolling rules if they are not inconsistent
27 with federal law). Although the term of Plaintiff’s sentence is not known, the limitations period
28 for his claims would not differ if he were serving a term of life with the possibility of parole, as
13

1 that is considered a term of less than life. Martinez v. Gomez, 137 F.3d 1124, 1126 (9th Cir.
2 1998). Further, in California “[l]imitations are tolled during period of imprisonment of persons
3 sentenced to life imprisonment.” Cal. Civ. Proc. Code § 352.1, note (West Ann. 2017) (2.
4 Construction and application) (citing Grasso v. McDonough Power Equip., 264 Cal.App.2d 597,
5 601, 70 Cal.Rptr. 458 (1968) (reversed dismissal on demurrer based on statute of limitations of
6 action brought by inmate sentenced to a life term roughly nine years after precipitating incident,));
7 see also Brooks v. Mercy Hosp., 1 Cal.App.5th 1, 6-7 (2016) (finding “. . . Grasso remains good
8 law.”)
9

Thus, Plaintiff has a minimum of four years from the date of the incidents at issue in Claim

10 #4 to file suit. Plaintiff alleges that the subject events for Claim #4 occurred approximately two
11 years ago, “on or about 3-27-16.” (Doc. 36, p. 11.) Thus, Claim #4 need not be severed, since
12 Plaintiff is not time-barred from bringing it in a new action.
13 IV.

CONCLUSION and RECOMMENDATION

14

Despite repeatedly having been provided the requisite legal standards for Claims #1-3,

15 Plaintiff fails, and appears unable, to state cognizable claims thereunder. Thus, further
16 amendment need not be granted as it would be futile, Akhtar, 698 F.3d at 1212-13, and Claims #117 3 should be dismissed with prejudice. Plaintiff improperly attempted to join Claim #4 against
18 Officers Hernandez and Doe #2. This claim should be dismissed without prejudice since Plaintiff
19 is not time-barred from alleging this claim in a new action.
20

Accordingly, IT IS HEREBY RECOMMENDED that Claims #1-3 be dismissed with

21 prejudice because of Plaintiff’s failure to state a cognizable claim and that Claim #4 be dismissed
22 without prejudice to being brought in a new action. The Clerk of the Court is directed to assign a
23 District Judge to this action.
24

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

25 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within
26 twenty-one (21) days after being served with these Findings and Recommendations, the parties
27 may file written objections. The document should be captioned “Objections to Magistrate Judge’s
28 Findings and Recommendations.” Failure to file objections within the specified time may result in
14

1 the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing
2 Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
3
4 IT IS SO ORDERED.
5
Dated:
6

April 18, 2018

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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