Gonzales v. Podsakoff, et al.

Filing 82

ORDER adopting 76 FINDINGS AND RECOMMENDATIONS signed by District Judge Dale A. Drozd on 6/11/2018. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL GONZALES,

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No. 1:15-cv-00924-DAD-SKO

Plaintiff,
v.

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS

A. PODSAKOFF, et al.,
(Doc. No. 49, 62, 67, 69, 72, 76)
Defendants.

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Plaintiff Michael Gonzales is a state prisoner proceeding pro se and in forma pauperis in

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this civil rights action brought pursuant to 42 U.S.C. § 1983. The matter was referred to a United

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States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On February 14, 2018, the assigned magistrate judge issued findings and

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recommendations, recommending that defendants’ motion for an order requiring plaintiff to post

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a security before proceeding in this action be denied. (Doc. No. 65.) On February 22, 2018,

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defendants filed objections, arguing that the magistrate judge erred by applying the federal

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standard governing such motions, rather than the standard under California law. (Doc. No. 68.)

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The magistrate judge thereafter issued amended findings and recommendations finding that under

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both federal and state standards, defendants’ motion should be denied. (Doc. No. 76.) In

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addition, the amended findings and recommendations recommended that plaintiff’s request to be

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removed from California’s vexatious litigant list (Doc. No. 62) be denied for lack of jurisdiction,
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that plaintiff’s motion for an extension of time to file a surreply (Doc. No. 69) be disregarded as

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moot, and that plaintiff’s surreply (Doc. No. 72) be stricken from the record. On March 26, 2018,

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defendants objected to the amended findings and recommendations. Plaintiff filed no objections.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a

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de novo review of this case. Having carefully reviewed the entire file, including defendants’

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objections, the court finds the amended findings and recommendations to be supported by the

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record and by proper analysis.

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Under California Code of Civil Procedure § 391.1, a defendant may move the court for an

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order requiring plaintiff to post a security if (1) the plaintiff is a vexatious litigant, and (2) there is

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not a reasonable probability that he or she will prevail in the litigation against the moving

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defendant. Cal. Code Civ. P. § 391.1. Defendants raise several arguments as to why, contrary to

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the recommendation set forth in the pending findings and recommendations, plaintiff should be

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required to post a security here. First, defendants contend that the assigned magistrate judge

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misapplied the law in determining whether plaintiff has a reasonable probability of prevailing in

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this action. The assigned magistrate judge quoted language from the decision in Devereaux v.

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Latham & Watkins, 32 Cal. App. 4th 1571, 1583 (1995), stating in this regard that a defendant is

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required to “show that the plaintiff’s recovery is foreclosed as a matter of law or that there are

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insufficient facts to support recovery by the plaintiff on its legal theories, even if all the plaintiff’s

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facts are credited.” Defendants take issue with this latter statement in particular, noting that this

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language in Devereaux has been disapproved of by the California Supreme Court. See Moran v.

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Murtaugh Miller Meyer & Nelson, LLP, 40 Cal. 4th 780, 785 n.7 (2007).

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The undersigned notes, however, the magistrate judge’s opinion made clear that it did not

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necessarily credit all of plaintiff’s factual allegations. In the very next sentence of the findings

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and recommendations, the magistrate judge cited to the decision in Moran and stated that in

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making its determination as to whether there is a reasonable probability plaintiff will prevail, “the

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Court performs an evaluative function and is required to weigh the evidence; it does not assume

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the truth of Plaintiff’s allegations.” (Doc. No. 76 at 11 (emphasis added).) Accordingly, the

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undersigned concludes that the magistrate judge employed the correct test under California law in
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determining whether plaintiff has a reasonable probability of prevailing.
Next, defendants contend that plaintiff does not have a reasonable probability of

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succeeding here because he did not adequately exhaust his administrative remedies. Specifically,

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defendants argue that although plaintiff is proceeding on a claim that prison staff was unlawfully

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medicating his food, his administrative grievance was focused on allegations that he was not

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receiving food. (See Doc. No. 78 at 5.) However, as noted in the findings and recommendations,

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the Third Level Decision on his inmate appeal acknowledged plaintiff’s request that he be “given

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three meals a day without any medication or contaminants.” (Id. at 14.) Defendants were

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therefore plainly on notice as to the allegation that plaintiff was receiving tainted food. See Reyes

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v. Smith, 810 F.3d 654, 659 (9th Cir. 2016) (“Under the PLRA, a grievance ‘suffices if it alerts

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the prison to the nature of the wrong for which redress is sought.’”) (quoting Sapp v. Kimbrell,

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623 F.3d 813, 824 (9th Cir. 2010)).

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For these reasons,

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1. The amended findings and recommendations issued March 14, 2018 (Doc. No. 76)

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are adopted in full;

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2. The findings and recommendations issued February 14, 2018 (Doc. No. 67) will be

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disregarded;
3. Defendants’ motion for an order requiring security (Doc. No. 49) is denied without

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prejudice;
4. Plaintiff’s motion for an extension of time to file a surreply (Doc. No. 69) is

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denied as moot;

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5. Plaintiff’s surreply (Doc. No. 72) is ordered stricken from the court’s docket; and

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6. The matter is referred back to the assigned magistrate judge for further

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proceedings.
IT IS SO ORDERED.
Dated:

June 11, 2018
UNITED STATES DISTRICT JUDGE

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