Bell v. Duffy, et al.
Filing
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ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 7/23/15 ORDERING that plaintiffs motion to file a fourth amended complaint (ECF No. 44 ) to add defendants Shaffer and Woodford as defendants with respect to his cla im challenging the calculation of filing fees is denied without prejudice; the court will issue further orders regarding these proposed new defendants following resolution of defendants summary judgment motion, if appropriate; It is RECOMMENDED that plaintiffs motion to file a fourth amended complaint (ECF No. 44 ) be denied with respect to his request to add his previously dismissed claims challenging the allegedly erroneous restitution order. Referred to Judge Garland E. Burrell, Jr.; 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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DANNY BELL,
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No. 2: 14-cv-0965 GEB KJN P
Plaintiff,
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v.
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ORDER AND
A. PAYAN, et al.,
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FINDINGS AND RECOMMENDATIONS
Defendants.
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Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant
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to 42 U.S.C. § 1983. Pending before the court is plaintiff’s motion for leave to file a fourth
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amended complaint and proposed fourth amended complaint. (ECF Nos. 44, 45). On May 19,
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2015, defendants filed an opposition to this motion.
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For the reasons stated herein, plaintiff’s motion to amend to include his previously
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dismissed claim challenging the restitution order should be denied. Plaintiff’s motion to amend to
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seek injunctive relief against defendants Woodford and Shaffer with respect to his claim
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challenging the calculation of filing fees is denied without prejudice.
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Standard for Considering Motion for Leave to Amend
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Under Fed. R. Civ. P. 15(a)(2), the court “should freely give leave [to amend] when
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justice so requires.” To determine whether to grant leave to amend, the court considers five
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factors: “(1) bad faith; (2) undue delay; (3) prejudice to the opposing party; (4) futility of
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amendment; and (5) whether the plaintiff has previously amended his complaint.” Nunes v.
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Ashcroft, 375 F.3d 805, 808 (9th Cir. 2003) (citations omitted). “Futility alone can justify the
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denial of a motion for leave to amend,” id., and prejudice to the opposing party “carries the
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greatest weight.” Eminence Capital LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).
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Delay alone, however, will not justify denying leave to amend. DCD Progs., Ltd. v. Leighton,
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833 F.2d 183, 186 (9th Cir. 1987); see also United States v. Webb, 655 F.2d 977, 980 (9th Cir.
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1981) (“The mere fact that an amendment is offered late in the case ... is not enough to bar it.”).
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All inferences are drawn “in favor of granting the motion.” Griggs v. Pace Am. Group, Inc., 170
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F.3d 877, 880 (9th Cir. 1999). “[T]he nonmoving party bears the burden of demonstrating why
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leave to amend should not be granted.” Genentech, Inc. v. Abbott Labs., 127 F.R.D. 529, 530–31
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(N.D. Cal. 1989).
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Discussion
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This action is proceeding on the second amended complaint filed October 20, 2014, as to
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defendants Duffy and Payan. (ECF No. 23.) Plaintiff alleges that defendants did not properly
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calculate his filing fee payments. (Id.)
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Plaintiff’s second amended complaint contained a second claim alleging that the abstract
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of judgment and minute order issued in his criminal case incorrectly stated that he was ordered to
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pay restitution. On February 6, 2015, the court dismissed this claim for failing to state a
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potentially colorable claim for relief. (ECF No. 31.)
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The proposed fourth amended complaint names defendants Payan and Duffy as well as
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Superior Court Reporter Nagao, Los Angeles County Deputy District Attorney Ken Lamb, Los
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Angeles County Deputy Public Defender Clark, California Department of Corrections and
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Rehabilitation (“CDCR”) Assistant Secretary Shaffer, CDCR Under Secretary Woodford, Deputy
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Attorney General Heckler and California Medical Facility (“CMF”) Appeals Coordinator
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Milliner. (ECF No. 45 at 1.)
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The proposed fourth amended complaint contains plaintiff’s claim alleging that
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defendants Duffy and Payan did not properly calculate his filing fees. However, plaintiff is also
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attempting to bring his previously dismissed claim challenging the restitution order. The
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proposed fourth amended complaint seeks injunctive relief as to both of these claims. (Id. at 13-
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14.) It appears that plaintiff also seeks money damages only with respect to his claim challenging
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the restitution order. (Id. at 14.)
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With respect to the restitution order, plaintiff alleges that defendant Nagao made the
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“erroneous” entry in his abstract of judgment stating that he owed restitution. (Id. at 7.) Plaintiff
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alleges that he filed a grievance regarding the allegedly “erroneous” restitution order with
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defendants Shaffer and Woodford. (Id. at 9.) In response, plaintiff received a letter stating that if
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he continued to pursue his complaint regarding this issue, he would be placed on appeal
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restriction. (Id.) Plaintiff alleges that defendant Heckler knows that the restitution order entered
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by defendant Nagao is erroneous, but that she failed to submit the “truth” to the court. (Id. at 11.)
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Plaintiff alleges that defendants Lamb and Clark failed to correct the erroneous restitution record.
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(Id. at 11-12.)
As discussed above, the court previously considered plaintiff’s claim challenging the
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allegedly erroneous restitution order and found that it failed to state a potentially colorable claim
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for relief. (See ECF Nos. 29, 31.) Under the law of the case doctrine, “a court is generally
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precluded from reconsidering an issue previously decided by the same court, or a higher court in
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the identical case.” United States v. Lummi Indian Tribe, 235 F.3d 443, 452 (9th Cir. 2000).
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This doctrine has developed to “maintain consistency and avoid reconsideration of matters once
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decided during the course of a single continuing lawsuit.” 18B Wright, Miller & Cooper, Federal
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Practice and Procedure: Jurisdiction 2d § 4478, at 637–38 (2002).
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A district court abuses its discretion in applying the law of the case doctrine only if (1) the
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first decision was clearly erroneous; (2) an intervening change in the law occurred; (3) the
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evidence on remand was substantially different; (4) other changed circumstances exist; or (5) a
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manifest injustice would otherwise result. 235 F.3d at 452–53. Plaintiff has not demonstrated
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that any of these exceptions warrant reconsideration of the previous order dismissing his claim
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challenging the allegedly erroneous restitution order. Accordingly, plaintiff’s motion to amend to
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include this claim should be denied.
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Plaintiff also alleges that defendants conspired to impose the erroneous restitution order
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on him. A conspiracy, in and of itself, is not an actionable tort or separate cause of action under
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42 U.S.C. § 1983. Lacey v. Maricopa County, 693 F.3d 896, 935 (9th Cir. 2012). “Conspiracy
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may, however, enlarge the pool of responsible defendants by demonstrating their causal
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connections to the violation; the fact of the conspiracy may make a party liable for the
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unconstitutional actions of the party with whom he has conspired.” Id.
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“A civil conspiracy is a combination of two or more persons who, by some concerted
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action, intend to accomplish some unlawful objective for the purpose of harming another which
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results in damage.” Gilbrook v. City of Westminster, 177 F.3d 839, 856 (9th Cir. 1999) (quoting
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Vieux v. East Bay Reg'l Park Dist., 906 F.2d 1330, 1343 (9th Cir. 1990). To prove civil
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conspiracy a plaintiff must show that the parties reached an understanding or agreement in an
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unlawful arrangement. Lacey, 693 F.3d at 935.
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Because the underlying constitutional claim challenging the restitution order does not state
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a potentially colorable constitutional claim, plaintiff’s related conspiracy claim fails as well.
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Moreover, plaintiff’s conclusory claims of conspiracy are insufficient to show a meeting of the
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minds. Accordingly, plaintiff’s motion to amend to add a conspiracy claim should be denied.
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Plaintiff also seeks to add defendants Shaffer and Woodford to his claim challenging the
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calculation of filing fees. In particular, plaintiff requests that these defendants be ordered to
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recalculate his filing fees. (ECF No. 45 at 13.) Defendants argue that plaintiff has not linked
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defendants CDCR Assistant Secretary Shaffer and CDCR Under Secretary Woodford to his claim
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challenging the calculation of filing fees.
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In a complaint seeking injunctive relief only, all that is required is that the complaint name
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an official who could appropriately respond to a court order on injunctive relief should one ever
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be issued. Harrington v. Grayson, 764 F.Supp. 464, 475–477 (E.D. Mich. 1991); Malik v.
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Tanner, 697 F.Supp. 1294, 1304 (S.D.N.Y. 1988) (“Furthermore, a claim for injunctive relief, as
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opposed to monetary relief, may be made on a theory of respondeat superior in a § 1983 action.”);
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Fox Valley Reproductive Health Care v. Arft, 454 F.Supp. 784, 786 (E.D. Wis. 1978). See also,
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Hoptowit v. Spellman, 753 F.2d 779 (9th Cir. 1985), permitting an injunctive relief suit to
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continue against an official’s successors despite objection that the successors had not personally
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engaged in the same practice that had led to the suit. However, because a suit against an official
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in his or her official capacity is a suit against the state, a practice, policy or procedure of the state
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must be at issue in a claim for official capacity injunctive relief. Haber v. Melo, 502 U.S. 21, 25
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(1991).
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Plaintiff does not clearly allege that the at-issue filing fee policy is a state policy. For this
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reason, the motion to amend to add defendants Shaffer and Woodford to this claim for injunctive
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relief is denied without prejudice. On July 7, 2015, defendants Duffy and Payan filed a motion
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for summary judgment on grounds that plaintiff failed to exhaust administrative remedies. If
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defendants’ summary judgment motion is denied, plaintiff will be permitted to file an amended
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complaint naming Shaffer and Woodford as defendants if he is challenging a state policy and if
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defendants Shaffer and Woodford could respond to a court order on injunctive relief. If
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defendants’ summary judgment motion is granted, plaintiff’s motion to amend to add Shaffer and
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Woodford as defendants will be unnecessary.
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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion to file a fourth amended
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complaint (ECF No. 44) to add defendants Shaffer and Woodford as defendants with respect to
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his claim challenging the calculation of filing fees is denied without prejudice; the court will issue
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further orders regarding these proposed new defendants following resolution of defendants’
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summary judgment motion, if appropriate;
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IT IS HEREBY RECOMMENDED that plaintiff’s motion to file a fourth amended
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complaint (ECF No. 44) be denied with respect to his request to add his previously dismissed
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claims challenging the allegedly erroneous restitution order.
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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 filed and served 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: July 23, 2015
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