Gonzalez, Jr. v. Gamberg, et al.

Filing 23

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 5/18/15 RECOMMENDING that Defendants' motion to dismiss (ECF No. 16 ) be granted; Plaintiff's remaining claims against defendant Gamberg be dismissed; Plaint iff's claims arising under California law for battery against defendants Wheeler and Lively be dismissed; and Defendants Wheeler and Lively be ordered to file their answer with respect to plaintiff's remaining claims within 20 days. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSE GONZALEZ, JR.,

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Plaintiff,

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No. 2:14-cv-0737 KJM CKD P

v.

FINDINGS AND RECOMMENDATIONS

R. GAMBERG, et al.,

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Defendants.

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Plaintiff is a California prisoner proceeding pro se with an action for violation of civil

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rights under 42 U.S.C. § 1983. The remaining defendants, defendants Gamberg, Wheeler and

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Lively (defendants) have filed a motion to dismiss.

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I. Plaintiff’s Remaining Claims
On October 14, 2014, the court screened plaintiff’s complaint pursuant to its obligation to

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do so under 28 U.S.C. § 1915A. The court found service of process appropriate for defendants

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Gamberg, Wheeler and Lively based upon the following allegations:
1. Defendant Wheeler used excessive force against plaintiff in violation of the Eighth

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Amendment on October 15, 2010 when he applied handcuffs too tightly.
2. Defendant Gamberg directed defendant Wheeler to use the excessive force described

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above against plaintiff in violation of the Eighth Amendment.

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3. The excessive force described above was, in part, the result of plaintiff filing inmate

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grievances against defendant Gamberg in violation of plaintiff’s First Amendment rights.

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4. Defendant Wheeler committed a battery upon plaintiff on October 15, 2010 in

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violation of California law when he applied handcuffs too tightly.

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5. Defendant Gamberg directed defendant Wheeler to commit the battery described above
against plaintiff.

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6. Defendant Lively used excessive force against plaintiff in violation of the Eighth
Amendment on December 6, 2010 when he applied handcuffs too tightly.

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7. Defendant Lively committed a battery upon plaintiff on December 6, 2010 in violation
of California law when he applied handcuffs too tightly.

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8. Defendant Lively began a course of retaliation against plaintiff on December 6, 2010,

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which resulted in adverse action against plaintiff including the use of excessive force described

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above, as a result of plaintiff’s utilization of the inmate grievance process and in violation of the

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First Amendment.

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II. Battery
Defendants argue that plaintiff’s claims for battery against defendants are barred by the

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applicable statute of limitations. In the briefing regarding defendants’ motion to dismiss, the

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parties agree as to the following:

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1. Before plaintiff could pursue a claim for battery arising under California law in this

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court, he had to present the claim to, and have the claim rejected by the California Victim

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Compensation and Government Claims Board (Board).
2. Plaintiff’s claims for battery were presented to the Board and rejected on May 19,

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2011.
3. Under California law, plaintiff then had six months from May 27, 2011--the date the

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notice of rejection was mailed to plaintiff--to file his claims in this court. See Cal. Gov’t Code §

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945.6(a)(1).

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This action was not commenced by plaintiff until March 16, 2014, when he gave his

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complaint to prison officials for mailing. See Houston v. Lack, 487 U.S. 266, 270 (1988). Unless
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there is a basis for tolling the limitations period approximately 27 1/2 months, petitioner’s state

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law battery claims are time-barred.

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Plaintiff alleges the limitations period concerning his battery claims was tolled on

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November 27, 2011 when he submitted his complaint filed in 2:11-cv-3196 GEB EFB for

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mailing. Plaintiff raised the same battery claims in that action as he does here. The claims were

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dismissed on December 24, 2014 for being improperly joined in violation of Federal Rule of Civil

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Procedure. ECF Nos. 16 & 18. It appears (and defendants concede) that as presented in the

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complaint filed in 2:11-cv-3196 GEB EFB, plaintiff’s battery claims were timely. But, plaintiff

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fails to point to anything suggesting that the pendency of claims in one action which were

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dismissed for a violation of the Federal Rules of Civil Procedure can form the basis for tolling of

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the limitations period with respect to a subsequent action. Therefore, plaintiff has not shown a

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basis for tolling the six month limitation period which began running on May 27, 2011 and ran

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out well before this action was commenced.
In light of the foregoing, defendants’ motion to dismiss plaintiff’s battery claims as time-

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barred should be granted.

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II. Defendant Gamberg

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With respect to plaintiff’s remaining excessive force and retaliation claims against

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defendant Gamberg, defendants argue that the claims are either barred by the res judicata

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doctrine, or are duplicative of claims still pending in 2:11-cv-3196 GEB EFB.
As for the excessive force claim, which is essentially premised upon plaintiff’s allegation

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that defendant Wheeler’s applying handcuffs to plaintiff too tightly on October 15, 2010 was at

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the direction of defendant Gamberg, it is clear that allegations underlying the claim were made in

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the second amended complaint in 2:11-cv-3196 GEB EFB as well. See ECF No. 15 at 7 & 14

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(defendant Gamberg indicated in defendant Wheeler’s presence that he would “make plaintiff’s

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life miserable” and Wheeler, Gamberg’s subordinate employee, applied handcuffs to plaintiff in a

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manner which constituted excessive force). The allegations were found not to amount to a claim

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upon which relief could be granted. ECF No. 16 at 3-4 & 18.

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With respect to the retaliation claim, which is premised upon plaintiff’s assertion that

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defendant Wheeler’s use of excessive force against plaintiff on October 15, 2010 was due at least

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in part to plaintiff filing prisoner grievances against defendant Gamberg, the allegations

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supporting plaintiff’s claim also appear in the second amended complaint filed in 2:11-cv-3196

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GEB EFB. See ECF No. 15 at 13, 14. These allegations were also found not to amount to a

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claim upon which relief could be granted. ECF No. 16 at 3-4; No. 18.

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Essentially, in his second amended complaint in 2:11-cv-3196 GEB EFB, plaintiff puts

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forth the same allegations against defendant Gamberg as the allegations which support plaintiff’s

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remaining claims against Gamberg in this action. In 2:11-cv-3196 GEB EFB and pursuant to the

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court’s obligation to screen complaints filed by prisoners against governmental employees (28

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U.S.C. § 1915A), the allegations were found not to amount to a claim upon which relief can be

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granted. To the extent plaintiff seeks relief from that ruling, he must do so in 2:11-cv-3196 GEB

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EFB, which is still an open case, or on appeal after judgment is entered.

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For all of the foregoing reasons, the court will recommend that all of plaintiff’s remaining
claims against defendant Gamberg be dismissed.

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In accordance with the above, IT IS HEREBY RECOMMENDED that:

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1. Defendants’ motion to dismiss (ECF No. 16) be granted;

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2. Plaintiff’s remaining claims against defendant Gamberg be dismissed;

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3. Plaintiff’s claims arising under California law for battery against defendants Wheeler

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and Lively be dismissed; and
4. Defendants Wheeler and Lively be ordered to file their answer with respect to
plaintiff’s remaining claims within 20 days.

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These findings and recommendations are submitted to the United States District Judge

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

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

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objections shall be served and filed within fourteen days after service of the objections. The
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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: May 18, 2015

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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