(PC) Storm v. Newsom et al

Filing 16

FINDINGS and RECOMMENDATIONS to Dismiss Action, With Prejudice, for Failure to State a Claim, Failure to Obey Court Order, and Failure to Prosecute re 1 Prisoner Civil Rights Complaint signed by Magistrate Judge Barbara A. McAuliffe on 1/6/2025. Referred to Judge Sherriff. Objections to F&R due within fourteen (14) days. (Deputy Clerk AML)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DIMITRI Z. STORM,

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v.

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NEWSOM, et al.,

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Case No. 1:24-cv-00236-KES-BAM (PC)

Plaintiff,

FINDINGS AND RECOMMENDATIONS TO
DISMISS ACTION, WITH PREJUDICE, FOR
FAILURE TO STATE A CLAIM, FAILURE
TO OBEY COURT ORDER, AND FAILURE
TO PROSECUTE

Defendants.

(ECF No. 14)

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FOURTEEN (14) DAY DEADLINE

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I.

Background
Plaintiff Dimitri Z. Storm (“Plaintiff”) is a state prisoner proceeding pro se and in forma

pauperis in this civil rights action under 42 U.S.C. § 1983.

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On August 22, 2024, the Court screened the complaint and found that it failed to comply

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with Federal Rule of Civil Procedure 8 and failed to state a cognizable claim for relief. (ECF No.

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9.) The Court issued a screening order granting Plaintiff leave to file a first amended complaint

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or a notice of voluntary dismissal within thirty (30) days. (Id.) The Court expressly warned

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Plaintiff that the failure to comply with the Court’s order would result in a recommendation for

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dismissal of this action, with prejudice. (Id. at 8.) On October 10, 2024, following Plaintiff’s

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failure to file an amended complaint, the Court issued findings and recommendations to dismiss

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this action, with prejudice, for failure to state a claim, failure to obey a court order, and failure to
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prosecute. (ECF No. 12.) Plaintiff filed objections on October 29, 2024, stating that he had

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already sent an amended complaint to the Court. (ECF No. 13.) Plaintiff implied that the

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amended complaint had been destroyed by staff at Plaintiff’s institution and requested an

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extension of time to file another amended complaint. (Id.)

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The Court found it appropriate to vacate the pending findings and recommendations, and

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granted Plaintiff a thirty-day extension of time to file an amended complaint. (ECF No. 14.)

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Plaintiff was again warned that failure to file a first amended complaint would result in dismissal

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of this action, with prejudice, for failure to obey a court order and failure to state a claim. (Id. at

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3.) Plaintiff has not filed a first amended complaint or otherwise communicated with the Court,

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and the deadline to do so has expired.

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II.

Failure to State a Claim

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A.

Screening Requirement

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

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governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous

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or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary

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relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b).

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A complaint must contain “a short and plain statement of the claim showing that the

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pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not

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required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as

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true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc.,

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572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).

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To survive screening, Plaintiff’s claims must be facially plausible, which requires

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sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable

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for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret

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Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully
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is not sufficient, and mere consistency with liability falls short of satisfying the plausibility

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standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969.

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B.

Plaintiff’s Allegations

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Plaintiff is currently housed at California Substance Abuse Treatment Facility (“SATF”).

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Plaintiff names as defendants: (1) Gavin Newsom, Governor, (2) Robert Bonta, California

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Attorney General, (3) B. Phillips, Warden of SATF. Plaintiff also attempts to name defendants

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“CSATF CDCR staff: all.” As best the Court can determine, Plaintiff alleges as follows.1

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Plaintiff alleges the Warden of SATF, officers of California Department of Corrections

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Rehabilitation (“CDCR”), and staff at SATF have been involved in handling Plaintiff’s property

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and effects. Plaintiff alleges they are now in possession of his J-Pay tablet that was illegally

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stolen along with legal documents and files sent to Plaintiff from the FBI, CIA, and DIA and

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other entities. They engaged in a conspiracy to defraud and steal Plaintiff’s personal property.

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SATF “E” Facility CDCR officers still have possession of his stolen J-pay tablet and his legal

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documents and files that they stole from Plaintiff on March 21, 2023 in Building #5. Plaintiff

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alleges conspiracy, theft, forgery involving CDCR officers for false statements and false reports

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and tampering with evidence.

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C.

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Plaintiff’s complaint fails to comply with Federal Rule of Civil Procedure 8 and fails to

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Discussion

state a cognizable claim under 42 U.S.C. § 1983.

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1.

Federal Rule of Civil Procedure 8

Pursuant to Federal Rule of Civil Procedure 8, a complaint must contain “a short and plain

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statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a).

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

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of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678

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On the form complaint, Plaintiff has checked the box that the complaint is pursuant to 28 U.S.C §1343(a) and 42
U.S.C. §1983. Plaintiff has also entitled the complaint as “Writ Habeas Corpus” and Petition for Preliminary
Injunction. The Court addressed the request for a preliminary injunction by separate order. To the extent Plaintiff is
attempting to challenge his conviction or the validity of his continued confinement, the exclusive method for
asserting that challenge is by filing a petition for a writ of habeas corpus. It has long been established that state
prisoners cannot challenge the fact or duration of their confinement in a section 1983 action and their sole remedy
lies in habeas corpus relief. Wilkinson v. Dotson, 544 U.S. 74, 78 (2005).

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(citation omitted). Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a

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claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S.

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at 555). While factual allegations are accepted as true, legal conclusions are not. Id.; see also

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Twombly, 550 U.S. at 556–57.

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Plaintiff’s complaint is relatively short but it is not plain statement of his claims. Many of

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Plaintiff’s allegations are conclusory do not state what happened, when it happened, or which

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defendant was involved. He fails to state the factual basis for the conclusions.

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In addition, Plaintiff attaches numerous exhibits to his complaint. While “much liberality

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is allowed in construing pro se complaints, a pro se litigant cannot simply dump a stack of

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exhibits on the court and expect the court to sift through them to determine if some nugget is

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buried somewhere in that mountain of papers, waiting to be unearthed and refined into a

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cognizable claim.” Samtani v. City of Laredo, 274 F. Supp. 3d 695, 698 (S.D. Tex. 2017). “The

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Court will not comb through attached exhibits seeking to determine whether a claim possibly

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could have been stated where the pleading itself does not state a claim. In short, [Plaintiff] must

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state a claim, not merely attach exhibits.” Stewart v. Nevada, No. 2:09-CV-01063-PMP-GWF,

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2011 WL 588485, at *2 (D. Nev. Feb. 9, 2011).

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2.

Linkage Requirement

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The Civil Rights Act under which this action was filed provides:

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Every person who, under color of [state law] ... subjects, or causes to be subjected,
any citizen of the United States ... to the deprivation of any rights, privileges, or
immunities secured by the Constitution ... shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress.

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42 U.S.C. § 1983. The statute plainly requires that there be an actual connection or link between

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the actions of the defendants and the deprivation alleged to have been suffered by Plaintiff. See

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Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). The

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Ninth Circuit has held that “[a] person ‘subjects’ another to the deprivation of a constitutional

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right, within the meaning of section 1983, if he does an affirmative act, participates in another’s

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affirmative acts or omits to perform an act which he is legally required to do that causes the

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deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
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Here, Plaintiff’s complaint fails to link any Defendant to any wrongful conduct. Further,

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Plaintiff refers to all CDCR officers and staff as defendants, but fails to name any specific officer

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or staff person as a defendant and link that specific person to allegedly wrongful conduct. The

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complaint’s caption must contain the names of the defendants discussed in the body of the

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complaint. See Fed. R. Civ. P. 10(a) (Rule 10(a) requires that plaintiffs include the names of all

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parties in the caption of the complaint). Groups of defendants violate Rule 10.

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3.

Supervisor Liability

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Insofar as Plaintiff is attempting to sue Defendant Warden, or any other defendant, based

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solely upon his supervisory role, he may not do so. Liability may not be imposed on supervisory

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personnel for the actions or omissions of their subordinates under the theory of respondeat

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superior. Iqbal, 556 U.S. at 676–77; Simmons v. Navajo Cty., Ariz., 609 F.3d 1011, 1020–21 (9th

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Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones v. Williams,

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297 F.3d 930, 934 (9th Cir. 2002).

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Supervisors may be held liable only if they “participated in or directed the violations, or

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knew of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045

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(9th Cir. 1989); accord Starr v. Baca, 652 F.3d 1202, 1205–06 (9th Cir. 2011); Corales v.

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Bennett, 567 F.3d 554, 570 (9th Cir. 2009). “The requisite causal connection may be established

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when an official sets in motion a ‘series of acts by others which the actor knows or reasonably

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should know would cause others to inflict’ constitutional harms.” Corales v. Bennett, 567 F.3d at

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570. Supervisory liability may also exist without any personal participation if the official

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

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rights and is the moving force of the constitutional violation.” Redman v. Cty. of San Diego, 942

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F.2d 1435, 1446 (9th Cir. 1991) (citations and quotations marks omitted), abrogated on other

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grounds by Farmer v. Brennan, 511 U.S. 825 (1970). When a defendant holds a supervisory

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position, the causal link between such defendant and the claimed constitutional violation must be

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specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld,

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589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations concerning the involvement

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of supervisory personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents,
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673 F.2d 266, 268 (9th Cir. 1982).

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4.

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Fourteenth Amendment – Property Deprivation

Insofar as Plaintiff also alleges that any Defendant wrongfully took his property, these

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allegations also are not sufficient to support a cognizable claim. Prisoners have a protected

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interest in their personal property. Hansen v. May, 502 F.2d 728, 730 (9th Cir. 1974). An

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authorized, intentional deprivation of property is actionable under the Due Process Clause. See

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Hudson v. Palmer, 468 U.S. 517, 532 n.13 (1984) (citing Logan v. Zimmerman Brush Co., 455

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U.S. 422, 435–36 (1982)); Quick v. Jones, 754 F.2d 1521, 1524 (9th Cir. 1985). However, “an

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unauthorized intentional deprivation of property by a state employee does not constitute a

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violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment

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if a meaningful post deprivation remedy for the loss is available.” Hudson, 468 U.S. at 533.

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Plaintiff contends that unnamed CDCR officers and staff took his property. As it appears

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that such conduct was an unauthorized deprivation of property, due process is satisfied if there is

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a meaningful post-deprivation remedy available to Plaintiff. Id. Plaintiff has an adequate post-

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deprivation remedy available under California law. Barnett v. Centoni, 31 F.3d 813, 816–17 (9th

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Cir. 1994) (citing Cal. Gov’t Code §§ 810–95). Therefore, Plaintiff fails to allege a cognizable

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due process claim for the alleged deprivation of his property.

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5.

False Reports

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The creation of false evidence, standing alone, is not actionable under § 1983. See

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Hernandez v. Johnston, 833 F.2d 1316, 1319 (9th Cir. 1987) (independent right to accurate prison

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record has not been recognized); Johnson v. Felker, No. 1:12–cv–02719 GEB KJN (PC), 2013

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WL 6243280, at *6 (E.D. Cal. Dec. 3, 2013) (“Prisoners have no constitutionally guaranteed right

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to be free from false accusations of misconduct, so the mere falsification of a report does not give

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rise to a claim under section 1983.”) (citations omitted). Moreover, “plaintiff cannot state a

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cognizable Eighth Amendment violation based on an allegation that defendant[ ] issued a false

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rule violation against plaintiff.” Jones v. Prater, No. 2:10-cv-01381 JAM KJN P, 2012 WL

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1979225, at *2 (E.D. Cal. Jun. 1, 2012); see also Youngs v. Barretto, No. 2:16-cv-0276 JAM AC

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P, 2018 WL 2198707, at *3 (E.D. Cal. May 14, 2019) (noting that issuance of false rules violation
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report does not rise to the level of cruel and unusual punishment) (citations omitted).
Accordingly, Plaintiff’s complaint does not state a cognizable claim against any
Defendant for an allegedly falsified statement.

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6.

Conspiracy

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To state a claim for conspiracy under section 1983, Plaintiff must show the existence of an

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agreement or a meeting of the minds to violate his constitutional rights, and an actual deprivation

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of those constitutional rights. Avalos v. Baca, 596 F.3d 583, 592 (9th Cir.2010); Franklin v. Fox,

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312 F.3d 423, 441 (9th Cir. 2001). To have standing to bring this type of claim, Plaintiff must

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also allege he suffered an actual injury. Vandelft v. Moses, 31 F.3d 794, 798 (9th Cir. 1994). To

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establish a conspiracy, Plaintiff allege specific facts showing “an agreement or meeting of the

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minds to violate constitutional rights. To be liable, each participant in the conspiracy need not

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know the exact details of the plan, but each participant must at least share the common objective

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of the conspiracy.” Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2002) (internal citations and

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quotation marks omitted). The mere conclusory statement that defendants “conspired” together is

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not sufficient to state a cognizable claim. Woodrum v. Woodward Cty., 866 F.2d 1121, 1126 (9th

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Cir. 1989).

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Plaintiff makes general, omnibus allegations that the Defendants engaged in some

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conspiracy. Plaintiff must plead the basic elements of a civil conspiracy: an agreement and

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concerted action amongst the defendants in the furtherance of that agreement, and that each

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defendant conspired to violate Plaintiff’s constitutional rights. See also Kendall v. Visa U.S.A.,

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Inc., 518 F.3d 1042, 1047 (9th Cir. 2008) (noting that a bare allegation of a conspiracy is almost

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impossible to defend against where numerous individuals are concerned).

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7.

State Law Claims

To the extent Plaintiff also alleges violations of California law, Plaintiff is informed that

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the California Government Claims Act requires that a tort claim against a public entity or its

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employees be presented to the California Victim Compensation and Government Claims Board

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no more than six months after the cause of action accrues. Cal. Gov’t Code §§ 905.2, 910, 911.2,

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945.4, 950-950.2. Presentation of a written claim, and action on or rejection of the claim are
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conditions precedent to suit. State v. Super. Ct. of Kings Cnty. (Bodde), 32 Cal.4th 1234, 1239

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(Cal. 2004); Shirk v. Vista Unified Sch. Dist., 42 Cal.4th 201, 209 (2007). To state a tort claim

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against a public employee, a plaintiff must allege compliance with the California Tort Claims

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Act. Cal. Gov’t Code § 950.6; Bodde, 32 Cal. 4th at 1244. “[F]ailure to allege facts demonstrating

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or excusing compliance with the requirement subjects a complaint to general demurrer for failure

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to state a cause of action.” Bodde, 32 Cal.4th at 1239.

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Plaintiff does not allege that he has complied with the Government Claims Act.
III.

Failure to Prosecute and Failure to Obey a Court Order

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A.

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Local Rule 110 provides that “[f]ailure . . . of a party to comply with these Rules or with

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any order of the Court may be grounds for imposition by the Court of any and all sanctions . . .

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within the inherent power of the Court.” District courts have the inherent power to control their

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dockets and “[i]n the exercise of that power they may impose sanctions including, where

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appropriate, . . . dismissal.” Thompson v. Hous. Auth., 782 F.2d 829, 831 (9th Cir. 1986). A

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court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action,

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failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46

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F.3d 52, 53–54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet,

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963 F.2d 1258, 1260–61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring

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amendment of complaint); Malone v. U.S. Postal Serv., 833 F.2d 128, 130–33 (9th Cir. 1987)

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(dismissal for failure to comply with court order).

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Legal Standard

In determining whether to dismiss an action, the Court must consider several factors:

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(1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its

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docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of

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cases on their merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779

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F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988).

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B.

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Here, Plaintiff’s first amended complaint is overdue for the second time, and he has failed

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Discussion

to comply with the Court’s order. The Court cannot effectively manage its docket if Plaintiff
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ceases litigating his case. Thus, the Court finds that both the first and second factors weigh in

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favor of dismissal.

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The third factor, risk of prejudice to defendant, also weighs in favor of dismissal, since a

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presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action.

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Anderson v. Air W., 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor usually weighs against

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dismissal because public policy favors disposition on the merits. Pagtalunan v. Galaza, 291 F.3d

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639, 643 (9th Cir. 2002). However, “this factor lends little support to a party whose

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responsibility it is to move a case toward disposition on the merits but whose conduct impedes

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progress in that direction,” which is the case here. In re Phenylpropanolamine (PPA) Products

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Liability Litigation, 460 F.3d 1217, 1228 (9th Cir. 2006) (citation omitted).

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Finally, the Court’s warning to a party that failure to obey the court’s order will result in

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dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262;

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Malone, 833 at 132–33; Henderson, 779 F.2d at 1424. The Court’s August 22, 2024 screening

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order and order granting Plaintiff’s motion for extension of time to file a first amended complaint

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both expressly warned Plaintiff that his failure to file an amended complaint would result in a

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recommendation of dismissal of this action, with prejudice, for failure to obey a court order and

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for failure to state a claim. (ECF No. 9, p. 8; ECF No. 14, p. 3.) Thus, Plaintiff had adequate

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warning that dismissal could result from his noncompliance.

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Additionally, at this stage in the proceedings there is little available to the Court that

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would constitute a satisfactory lesser sanction while protecting the Court from further

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unnecessary expenditure of its scarce resources. As Plaintiff is proceeding in forma pauperis in

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this action, it appears that monetary sanctions will be of little use and the preclusion of evidence

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or witnesses is likely to have no effect given that Plaintiff has ceased litigating his case.

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IV.

Conclusion and Recommendation

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Accordingly, the Court finds that dismissal is the appropriate sanction and HEREBY

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RECOMMENDS that this action be dismissed, with prejudice, for failure to state a claim, for

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failure to obey a court order, and for Plaintiff’s failure to prosecute this action.

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These Findings and Recommendation will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen

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(14) days after being served with these Findings and Recommendation, Plaintiff may file written

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objections with the Court. The document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendation.” Objections, if any, shall not exceed fifteen (15) pages or

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include exhibits. Exhibits may be referenced by document and page number if already in

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the record before the Court. Any pages filed in excess of the 15-page limit may not be

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considered. The parties are advised that failure to file objections within the specified time may

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result in the waiver of the “right to challenge the magistrate’s factual findings” on

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appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838–39 (9th Cir. 2014) (citing Baxter v. Sullivan,

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923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

/s/ Barbara A. McAuliffe

January 6, 2025

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UNITED STATES MAGISTRATE JUDGE

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