Von Staich v. California Board of Parole Hearings et al

Filing 44

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 08/15/17 recommending that plaintiff's motion for sanctions 23 be denied. Plaintiff's motions for summary adjudication 28 , 38 and motion for judicial notice 34 be denied without prejudice as premature. Motions 23 , 28 , 34 and 38 referred to Judge John A. Mendez. Objections due within 14 days. (Plummer, M)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 IVAN VON STAICH, 12 No. 2:15-cv-1182 JAM DB P Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 JEFFREY FERGUSON, et al., 15 Defendants. 16 Plaintiff is a state prisoner proceeding pro se and in forma pauperis (“IFP”) with a civil 17 18 rights action under 42 U.S.C. § 1983. Plaintiff contends defendants violated his due process 19 rights at a parole suitability hearing. Before the court are plaintiff’s motions for sanctions, for 20 summary adjudication, and for judicial notice.1 For the reasons set forth below, the undersigned 21 recommends that each motion be denied. BACKGROUND 22 23 Plaintiff initiated this action on June 1, 2015 with a complaint in which he alleged the 24 California Board of Parole Hearings (“BPH”) violated his due process rights at a 2013 parole 25 hearing. (ECF No. 1.) On April 8, 2016, plaintiff filed an amended complaint. (ECF No. 8.) 26 Plaintiff contends that in 2012 “Top BPH Officials” found him suitable for parole. However, at 27 28 1 Plaintiff also has a pending motion for injunctive relief. (ECF No. 40.) By separate order, the court grants defendants' motion for an extension of time to file an opposition to plaintiff’s motion. 1 1 his 2013 parole hearing, the BPH considered improper information, including confidential 2 information that he was not allowed to review, and denied him parole. On screening, the court granted plaintiff’s request for IFP status and found that plaintiff 3 4 appeared to state a potentially cognizable claim for relief against defendants Ferguson and 5 Fassnacht, commissioners with the BPH. (ECF No. 9.) On December 14, 2016, defendants 6 moved to revoke plaintiff’s IFP status. (ECF No. 25.) With that motion, defendants requested an 7 extension of time to answer the amended complaint until after the motion to revoke is finally 8 resolved by the court. The court granted that request. (ECF No. 26.) Defendants’ answer to 9 plaintiff’s amended complaint will be due within thirty days of the district judge’s ruling on 10 defendants' motion to revoke. 11 On June 8, 2017, the undersigned issued findings and recommendations and recommended 12 defendants’ motion to revoke be denied. (ECF No. 35.) Defendants filed objections to the 13 findings and recommendations on July 24, 2017. (ECF No. 39.) 14 On December 1, 2016, plaintiff moved the court to impose sanctions on defendants' attorney. 15 (ECF No. 23.) On January 3 and July 5, 2017, plaintiff filed motions for summary judgment. 16 (ECF Nos. 28, 38.) Plaintiff also filed a request for judicial notice with a supplemental brief in 17 support of his January 3 summary judgment motion. (ECF No. 34.) Finally, on July 24, 2017, 18 plaintiff filed a motion seeking injunctive relief. (ECF No. 40.) Plaintiff asks the court to 19 intervene to prevent the BPH from considering certain evidence at his parole hearing, which is set 20 for August 30, 2017. 21 MOTION FOR SANCTIONS 22 Plaintiff seeks the imposition of sanctions on defendants’ attorney based on what he considers 23 to be false statements in her declaration in support of defendants’ motion for an extension of time 24 to file a responsive pleading. (ECF No. 23.) The motion for an extension of time was based on 25 the Declaration of Deputy Attorney General Leena M. Sheet. (See ECF No. 19 at 4-6.) Therein, 26 Ms. Sheet stated that a response to the first amended complaint was time-consuming in part 27 because she was examining plaintiff’s many court filings to determine whether any may count as 28 //// 2 1 “strikes” under 28 U.S.C. § 1915(g). Ms. Sheets stated that plaintiff has “filed more than 150 2 cases in state and federal court.” (Id. at 4.) 3 Plaintiff argues that he has not filed 150 cases and Ms. Sheets should be sanctioned for 4 making a false statement. (ECF No. 23.) Plaintiff also spends time arguing that he has not 5 suffered three strikes under § 1915(g). Plaintiff fails to show Ms. Sheets’ statement is false. In fact, in Exhibit 10 to their motion to 6 7 revoke plaintiff’s IFP status, defendants present evidence showing that plaintiff has filed 8 approximate 165 cases in the state and federal courts. (ECF No. 25-3 at 359-369.) Plaintiff’s 9 motion for sanctions is baseless and should be denied. 10 MOTIONS FOR SUMMARY ADJUDICATION AND FOR JUDICIAL NOTICE 11 In January and again in July 2017, plaintiff filed motions for summary adjudication. (ECF 12 Nos. 28, 38.) Plaintiff also filed a supplemental brief in his motion for judicial notice. (ECF No. 13 34.) Federal Rule of Civil Procedure 56 contemplates that, prior to filing a motion for summary 14 judgment, the opposing party should have a sufficient opportunity to discover information 15 essential to its position. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). In other 16 words, the case must be sufficiently advanced in terms of pretrial discovery for the summary 17 judgment target to know what evidence likely can be mustered and be afforded a reasonable 18 opportunity to present such evidence. Portsmouth Square, Inc., v. Shareholders Protective 19 Comm., 770 F.2d 866, 869 (9th Cir. 1985). Defendants’ answer to the complaint is not due until the district judge has ruled on the motion 20 21 to revoke plaintiff’s IFP status. Until such time as defendants have answered the complaint and 22 had the opportunity to conduct discovery, plaintiff's motions are premature. Once defendants 23 have filed an answer, a discovery order will be entered, and a deadline for the filing of dispositive 24 motions will be set. Accordingly, plaintiff's motions for summary judgment, and the related 25 motion for judicial notice, should be denied as premature. 26 For the foregoing reasons, IT IS HEREBY RECOMMENDED that: 27 1. Plaintiff’s motion for sanctions (ECF No. 23) be denied; and 28 //// 3 1 2 3 2. Plaintiff’s motions for summary adjudication (ECF Nos. 28, 38) and motion for judicial notice (ECF No. 34) be denied without prejudice as premature. These findings and recommendations will be submitted to the United States District Judge 4 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 5 after being served with these findings and recommendations, any party may file written 6 objections with the court and serve a copy on all parties. The document should be captioned 7 “Objections to Magistrate Judge's Findings and Recommendations.” Any response to the 8 objections shall be filed and served within seven days after service of the objections. The parties 9 are advised that failure to file objections within the specified time may result in waiver of the 10 right to appeal the district court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 11 Dated: August 15, 2017 12 13 14 15 16 17 18 19 DLB:9 DLB1/prisoner-civil rights/vons1182.p mtns 20 21 22 23 24 25 26 27 28 4

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?