Turner v. Smith et al

Filing 81

ORDER by Judge Charles R. Breyer denying 77 Rule 60(b) Motion. (crblc2, COURT STAFF) (Filed on 1/8/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

United States District Court
For the Northern District of California

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ORDER DENYING RULE 60 MOTION

Plaintiff,

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No. C 11-05176 CRB

STEPHEN B. TURNER,

v.
MELODY SMITH, ET AL.,

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Defendants.

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I.

BACKGROUND
Plaintiff Stephen Turner sued his parole officer and other government officials and

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entities alleging, among other things, that various of Turner’s parole conditions and the

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Defendants’ enforcement of those conditions violated his constitutional rights. See generally

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Second Am. Compl., dkt. 64. This Court granted a motion to dismiss all forty-seven of

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Turner’s causes of action. See Order, dkt. 75. He now seeks narrow relief from this Court’s

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order, asking that the Court revisit its dismissal of his forty-seventh cause of action, which

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alleged “retaliatory harassment in violation of the First and Fourteenth Amendements.”

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Second Am. Compl. ¶ 354.

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The forty-seventh cause of action actually included two distinct theories. Turner first

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alleged that Defendant Sims, a parole agent, “made a statement to Turner indicating that ‘bad

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things would happen to him if he didn’t drop his pendent lawsuits against him and the
California Parole department.” Id. ¶ 357; see also id. ¶ 115 (alleging that Sims said “if you

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don’t [stop your lawsuits] things are going to be very unpleasant for you!”). He separately

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alleged that Defendant Smith, another parole officer, “singled Turner out by repeatedly

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rearresting Turner for minor technical violations, when other parolees would not get arrested

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by her for similar violations.” Id.
The Court dismissed the forty-seventh cause of action as barred by Heck v.

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Humphrey, 512 U.S. 477 (1994). See Order at 6.

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II.

Rule 60(b) provides relief from judgment where one or more of the following is

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LEGAL STANDARD

shown: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered

United States District Court
For the Northern District of California

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evidence which by due diligence could not have been discovered before the court’s decision;

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(3) fraud by the adverse party; (4) the judgment is void; (5) the judgment has been satisfied;

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(6) any other reason justifying relief. Fed. R. Civ. P. 60(b). U.S. Bank cites subdivisions (1)

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and (6) in support of its motion.

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Rule 60(b)(1) permits relief from judgment because of “mistake, inadvertence,

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surprise, or excusable neglect.” Fed. R. Civ. P. 60(b)(1). Though motions under this

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subsection usually concern mistakes made by the party seeking relief, the Ninth Circuit

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permits 60(b)(1) relief premised on an error by the court. Kingvision Pay-Per-View Ltd. v.

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Lake Alice Bar, 168 F.3d 347, 350 (9th Cir. 1999); Liberty Mut. Ins. Co. v. E.E.O.C., 691

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F.2d 438, 440-41 (9th Cir. 1982); see also 11 Wright et al., Federal Practice & Procedure §

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2858.1 (2d ed. 2008) (noting circuit split).

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III.

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DISCUSSION
Turner argues that this Court erred in including his forty-seventh cause of action in the

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list of claims barred by Heck. The Court agrees that only one of Turner’s two theories in

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claim 47–the “singling out” theory–was barred by Heck, and that Turner’s alternative theory

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that Sims unlawfully threatened him should have been separately addressed in the portion of

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the order analyzing whether he stated a cognizable claim for relief.

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Turning to that theory, Turner failed to state a claim, because the vague “threats”
alleged–however inappropriate–do not rise to the level of a constitutional violation. Whether
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any threat unaccompanied by follow-through can state a § 1983 retaliation claim is doubtful.

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See Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987); cf. Corales v. Bennett, 567 F.3d 554,

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564-65 (9th Cir. 2009).
However, assuming arguendo that some category of mere threats could constitute

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“adverse action” sufficient state a retaliation claim, the vague threats here involving

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unspecified harms of “bad” or “unpleasant” experiences would not qualify. Indeed, is not

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even clear that Sims was “threatening” to do anything unlawful or improper; Turner’s

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complaint describes Sims as repeatedly urging Turner to comply with his sex-offender

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registration requirements in the same conversation where he supposedly threatened Turner.

United States District Court
For the Northern District of California

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See Second Am. Compl. ¶ 115. Accordingly, Turner has not plausibly pled that the “threats”

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were anything other than Sims’ opinion that Turner’s litigation campaign would distract him

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from staying in compliance with his various registration requirements.

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IV.

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CONCLUSION
One of the Turner’s two theories in his forty-seventh cause of action was barred by

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Heck, and the other failed to state a claim. Accordingly, Turner’s motion for Rule 60 relief

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is DENIED.

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IT IS SO ORDERED.

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CHARLES R. BREYER
UNITED STATES DISTRICT JUDGE

Dated: January 8, 2013

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