Cato v. Darst et al

Filing 27

ORDER AND FINDINGS AND RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 5/23/19 ORDERING that Plaintiff's claims against defendants Darst and Romero arising out of the alleged uses of excessive force on 3/6/13 and 3/7/13 are cogn izable and shall proceed past screening; and RECOMMENDING that 7 Motion to Dismiss be granted and Plaintiff's excessive force claims against defendants Delagarza-Dillard, Bennett, Snyder, and Campbell be DISMISSED without prejudice. These Findings and Recommendations are submitted to U.S. District Judge Troy L. Nunley; Objections to these F&Rs due within fourteen days. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAMES CATO, Jr.,

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No. 2:17-cv-1873-TLN-EFB P

Plaintiff,
v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

M. DARST, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding without counsel in an action brought pursuant to 42

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U.S.C. § 1983. On screening, the court found that plaintiff’s initial complaint stated cognizable

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Eighth Amendment excessive force claims against defendants Delagarza-Dillard, Campbell,

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Snyder, Bennet, Darst, and Romero and found service appropriate for the same. ECF No. 8. All

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other claims and defendants were dismissed with leave to amend. Id. Plaintiff elected to proceed

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with the excessive force claims. ECF No. 12.

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On September 10, 2018, defendants filed a motion to dismiss wherein they argued that

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plaintiff’s excessive force claims against Delagarza-Dillard, Bennett, Snyder, and Campbell were

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barred by the favorable termination rule announced in Heck v. Humphrey, 512 U.S. 477, 487

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(1994). ECF No. 17. Thereafter, plaintiff filed a first amended complaint. ECF No. 22. Then,

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after the amended complaint was filed, defendants filed a request for screening and specifically

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urged the court to determine whether the new complaint cured the deficiencies identified in their
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motion to dismiss. ECF No. 23. Given that a screening of the complaint necessarily entails the

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issues raised by the motion to dismiss (i.e., whether the complaint fails to state a claim under Rule

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12(b)(6) standards, see Fed. R. Civ. P. Rule 12(b)(6)), the request is granted, and the amended

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complaint is screened below. In so screening, the court considers the issues raised in defendants’

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motion, including their request for judicial notice.

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Screening

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I.

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Pursuant to § 1915(e)(2), the court must dismiss the case at any time if it determines the

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allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on

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Legal Standards

which relief may be granted, or seeks monetary relief against an immune defendant.

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Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519,

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520-21 (1972), a complaint, or portion thereof, should be dismissed for failure to state a claim if it

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fails to set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.

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Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41

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(1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff's obligation to provide the ‘grounds’ of

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his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of

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a cause of action's elements will not do. Factual allegations must be enough to raise a right to

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relief above the speculative level on the assumption that all of the complaint's allegations are

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true.” Id. (citations omitted). Dismissal is appropriate based either on the lack of cognizable

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legal theories or the lack of pleading sufficient facts to support cognizable legal theories.

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Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

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In reviewing a complaint under this standard, the court must accept as true the allegations

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of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740

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(1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in

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the plaintiff's favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must

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satisfy the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule

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8(a)(2) “requires a complaint to include a short and plain statement of the claim showing that the

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pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the

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grounds upon which it rests.” Twombly, 550 U.S. at 562-563 (2007).

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II.

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The amended complaint, like its predecessor, raises a series of First and Eighth

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Amendment claims. Plaintiff alleges that, on March 5, 2013, he was subjected to excessive force

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by defendants Delagarza-Dillard, Bennett, Campbell, and Snyder. ECF No. 22 at 5. He claims

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that, after confronting Delagarza-Dillard about a confiscated radio, he attempted to walk away.

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Id. As he did so, the foregoing defendants piled on top of him, choked him, and hit him

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repeatedly in the back, ribs, buttocks, and legs. Id. Plaintiff alleges that this incident of

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excessive force was orchestrated by Delagarza-Dillard in order to retaliate against him for the

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filing of a prison grievance appeal alleging racial discrimination. Id. at 3. The next day – March

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6, 2013 – plaintiff alleges that defendant Darst threw a tray of hot food in his face during meal

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service. Id. at 7. The day after – March 7, 2013 – plaintiff was allegedly subjected to the same

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by defendant Romero. Id. at 8.

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The foregoing claims, taken as true, are cognizable. However, for the reasons stated
hereafter, plaintiff’s claims arising from the March 5, 2013 events should be dismissed.

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A.

Statute of Limitations

As an initial matter, there appears to be an issue regarding the statute of limitations. The

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applicable statute of limitations on a claim begins to run upon accrual, that is when a plaintiff

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knows or has reason to know of the injury which forms the basis of the claim. See Douglass v.

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Noelle, 567 F.3d 1103, 1109 (9th Cir. 2009) (“Under federal law, a claim accrues when the

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plaintiff knows or should know of the injury that is the basis of the cause of action.”). This is

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normally the date of the injury. See Ward v. Westinghouse Canada, Inc., 32 F.3d 1405, 1407 (9th

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Cir. 1994). Here, plaintiff had reason to know of each of the foregoing injuries on the day each

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occurred.

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The applicable statute of limitations for section 1983 actions is that of the forum state.

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See Wallace v. Kato, 549 U.S. 384, 387 (2007). The statute of limitations for personal injury torts

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in California is two years. See Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir. 2004); Cal. Civ.
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Proc. Code § 335.1. The two-year statute of limitations is tolled for two years, however, if the

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claimant is a prisoner serving a term less than life. See Cal. Civ. Proc. Code § 352.1(a); Azer v.

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Connell, 306 F.3d 930, 936 (9th Cir. 2002) (federal courts borrow the state’s equitable tolling

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rules to the extent those rules are not inconsistent with federal law). Thus, a prisoner serving a

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term less than life in California effectively has four years to file a federal section 1983 claim.

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Here, each of the claims in the amended complaint rises out of incidents which allegedly

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occurred in March of 2013. The initial complaint in this action, however, was not filed until

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August of 2017 – approximately five months after the applicable statute of limitations would have

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ended. Plaintiff may also be entitled to tolling from the time spent exhausting his claims,

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however. See Brown v. Valoff, 422 F.3d 926, 943 (9th Cir. 2005) (finding that “the applicable

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statute of limitations must be tolled while a prisoner completes the mandatory exhaustion

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process” required by 42 U.S.C. § 1997e(a)). Thus, the court cannot say that the statute of

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limitations defense is so complete and obvious from the face of the complaint that it warrants sua

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sponte dismissal.1 See Franklin v. Murphy, 745 F.2d 1221, 1228-1230 (9th Cir. 1984).

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B.

The Favorable Termination Rule

Application of the favorable termination rule “turns solely on whether a successful § 1983

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action would necessarily render invalid a conviction, sentence, or administrative sanction that

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affected the length of the prisoner's confinement.” Ramirez v. Galaza, 334 F.3d 850, 856 (9th

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Cir. 2003). The court previously determined that the due process claims against defendants

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Shiplet and Albonico were so barred. ECF No. 8 at 3. As noted supra, prior to the filing of the

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amended complaint defendants Delagarza-Dillard, Bennett, Snyder, and Campbell filed a motion

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to dismiss arguing that the excessive force claims against them were similarly barred. ECF No.

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17. After the amended complaint was filed, those defendants requested screening and specifically

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urged the court to determine whether the new complaint cured the deficiencies identified in their

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motion to dismiss. ECF No. 23. In so doing, the court will take judicial notice of the documents

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attached to defendants’ motion to dismiss, namely: (1) the superior court abstract of judgment

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Defendants did not raise a statute of limitations defense in their motion to dismiss.
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from People v. James Cato, No. 961891-9; and (2) the Rules Violation Report, log number FB-

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13-03-12R. ECF No. 17-2 at 4-23. It is well settled that a court may take judicial notice of court

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records in another case. See United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980).

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Similarly, a federal court may also take judicial notice of orders made in a state court proceeding.

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See Miles v. California, 320 F.3d 986, 987 n.1 (9th Cir. 2003).

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The court finds that plaintiff’s excessive force claims against defendants Delagarza-

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Dillard, Bennett, Snyder, and Campbell are barred by the favorable termination rule. As an initial

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matter, there is no contention from plaintiff that his prison rules violation conviction which

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resulted in the loss of good time credits has been reversed, expunged, or called into question by

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issuance of a writ of habeas corpus. And plaintiff is serving a determinate sentence – twenty-five

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years for carjacking, possession of a firearm, and battery on a non-confined person. ECF No. 17-

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2 at 5. Cf. Thomas v. Wong, No. C 09-0733 JSW (PR), 2010 U.S. Dist. LEXIS 39748, 2010 WL

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1233909, at *3-4 (N.D. Cal. Mar. 26, 2010) (holding that habeas jurisdiction was absent because

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the disputed rules violation, which imposed a 30-day loss of time credits, did not inevitably affect

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the duration of petitioner's indeterminate sentence). Thus, the invalidation of the rules violation

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conviction and consequent loss of credits – 150 days – would necessarily result in an earlier

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release from incarceration.

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And there is no question that plaintiff’s current allegations against Delagarza-Dillard,

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Bennett, Snyder, and Campbell are fundamentally inconsistent with the facts upon which he was

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convicted. As noted supra, plaintiff alleges that these defendants attacked him without any

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penological justification while he was attempting to walk away from officer Delagarza-Dillard on

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March 5, 2013. ECF No. 22 at 5. By contrast, the rules violation conviction for which plaintiff

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was convicted found that he threatened to hit an officer, disregarded instructions to return to his

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cell, lunged at an officer in an attempt to strike him, and threw an officer to the ground when that

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individual attempted to restrain him. ECF No. 17-2 at 15. Only then did multiple officers engage

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plaintiff in order to restrain him. Id. The Ninth Circuit has held that “if a criminal conviction

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arising out of the same facts stands and is fundamentally inconsistent with the unlawful behavior

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for which section 1983 damages are sought, the 1983 action must be dismissed.” Smithart v.

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Towery, 79 F.3d 951, 952 (9th Cir. 1996).

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In an opposition filed in response to defendants’ motion to dismiss, plaintiff argues that

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the favorable termination rule does not apply insofar as his “action does not depend or rely on a

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theory that calls into question whether he committed the offense for which he was found guilty.”

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ECF No. 24 at 2. The crux of his argument appears to be that, because he now alleges that the

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excessive force used against him was undertaken in retaliation for his filing of grievances, it is

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sufficiently altered to avoid Heck preclusion. This argument is unconvincing. If the findings

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underlying plaintiff’s rules violation conviction are credited, the defendants’ use of force on

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March 5, 2013 was penologically necessary. Thus, they cannot have been undertaken, as he now

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alleges, solely as an act of retaliation in response to his filing of grievances.

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Based on the foregoing, the court recommends that plaintiff’s excessive force claims
against Delagarza-Dillard, Bennett, Snyder, and Campbell be dismissed without prejudice.

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C.

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Remaining Claims

Plaintiff’s remaining claims – that defendants Darst and Romero threw hot food in his

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face on March 6 and 7 of 2013 – are cognizable and may proceed past screening. These

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defendants shall have thirty days from the date of service of this order to file a responsive

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pleading addressing these allegations.

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Conclusion

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Accordingly, it is ORDERED that:

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1.

Plaintiff’s claims against defendants Darst and Romero arising out of the alleged

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uses of excessive force on March 6 and 7 of 2013 are cognizable and shall proceed past

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screening; and

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2.

Defendants shall have thirty days from the date of this order to file a responsive

pleading addressing the foregoing allegations against Darst and Romero.

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Further, it is RECOMMENDED that:

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1.

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Defendants’ motion to dismiss (ECF No. 17) be GRANTED; and

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2.

Plaintiff’s excessive force claims against defendants Delagarza-Dillard, Bennett,

Snyder, and Campbell be DISMISSED without prejudice.
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)(1). 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.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: May 23, 2019.

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