Waiton v. Post et al

Filing 12

ORDER VACATING ORDER OF DISMISSAL; REOPENING CASE; DIRECTING PLAINTIFF TO AMEND COMPLAINT; DIRECTIONS TO CLERK. Signed by Judge Jon S. Tigar on October 16, 2013. (Attachments: # 1 Certificate/Proof of Service)(wsn, COURT STAFF) (Filed on 10/16/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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THOMAS DAVID WAITON,

Case No. 13-cv-02439-JST (PR)

Plaintiff,
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v.
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KERRI POST, et al.,
Defendants.

United States District Court
Northern District of California

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ORDER VACATING ORDER OF
DISMISSAL; REOPENING CASE;
DIRECTING PLAINTIFF TO AMEND
COMPLAINT; DIRECTIONS TO
CLERK

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Plaintiff, an inmate at the Main Adult Detention Facility in Santa Rosa, California, filed
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this pro se civil rights action under 42 U.S.C. § 1983. In his complaint, plaintiff alleged that
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defendant Doris Maxine Guyer purposefully ran over plaintiff with her car. Plaintiff was a
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pedestrian. Plaintiff further alleged that defendant California Highway Patrol ("CHP") Officer
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Brian Wood prepared a fraudulent report about the incident, and that CHP Supervisor Kerri Post
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failed to adequately investigate the incident. Plaintiff also alleged that defendant County of
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Sonoma failed to adequately provide a safe environment for its citizens. Finally, plaintiff named
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as a defendant Darcy Drew, whom plaintiff identified as an insurance agent for the American
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Automobile Association. The Court dismissed the complaint and entered judgment on August 27,
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2013 because plaintiff had not stated how these alleged acts violated his federal constitutional or
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statutory rights.
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After the action was dismissed, plaintiff filed a letter with the Court dated September 4,
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2013 that persuades the Court that the dismissal order and judgment should be vacated and the
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case should be reopened. Specifically, plaintiff states in his letter that CHP Officers Brian Wood
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and Kerri Post "conspired to prevent a proper report" of the incident and that the CHP "purposely
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refused to provide a police report." Plaintiff alleges that these acts prevented plaintiff from
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recovering damages, in his "case," which the Court presumes means a civil case that plaintiff

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brought arising out of the incident. Finally, plaintiff states that CHP Officers Brian Wood and

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Kerri Post made threats to an attorney that plaintiff retained to help him recover damages from the

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incident, which threats caused the attorney to "quit."

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Such allegations, if true, could mean that defendants CHP Officers Brian Wood and Kerri

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Post violated plaintiff's constitutional right of access to the courts. A prisoner's constitutional right

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to litigate without interference means that "aside from their affirmative right to the tools necessary

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to challenge their sentences or conditions of confinement, prisoners also have a right, protected by

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the First Amendment right to petition and the Fourteenth Amendment right to substantive due
process, 'to pursue legal redress for claims that a have a reasonable basis in law or fact.'" Silva v.

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United States District Court
Northern District of California

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Di Vittorio, 658 F.3d 1090, 1103 (9th Cir. 2011) (internal citation omitted). "Recognition of the

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constitutional right of access to the courts . . . has from its inception been applied to civil as well

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as constitutional claims." Jackson v. Procunier, 789 F.2d 307, 311 (5th Cir. 1986). To state such a

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claim a plaintiff must allege an "actual injury" to court access, which consists of some specific

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"instance in which an inmate was actually denied access to the courts." Sands v. Lewis, 886 F.2d

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1166, 1171 (9th Cir. 1989), overruled on other grounds by Lewis v. Casey, 518 U.S. 343, 350-55

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(1996). Only if an actual injury is alleged does a plaintiff state a claim for which relief can be

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granted. See id.

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Plaintiff's showing is insufficient to establish actual injury. It is not enough for plaintiff

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merely to assert that the defendant CHP officers prevented him from recovering damages.

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Plaintiff has not identified the specific acts of the defendant CHP officers or how those acts

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actually prevented him or will prevent him from pursuing a civil action for damages. Plaintiff will

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be given leave, however, to amend his complaint to allege facts that cure the noted pleading

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deficiencies.

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Plaintiff's claims against defendants Doris Maxine Guyer, Darcy Drew, and Sonoma
County remain subject to dismissal for the reasons given in the Court's Order of Dismissal of

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August 27, 2013 (dkt. no. 7.)1 Specifically, plaintiff's claims against Doris Maxine Guyer and

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Darcy Drew cannot proceed under 42 U.S.C. § 1983 because private individuals and entities do

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not act under color of state law, an essential element of a § 1983 action. See Gomez v. Toledo,

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446 U.S. 635, 640 (1980). Plaintiff's claims against Sonoma County cannot proceed because

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plaintiff has not alleged how this defendant violated his federal constitutional or statutory rights.

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For the foregoing reasons and for good cause shown,

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The August 27, 2013 Judgment and Order of Dismissal, filed and entered in this matter,

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are hereby VACATED.
Within twenty-eight (28) days of the date this order is filed, plaintiff shall file an amended

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complaint. The amended complaint must include the caption and civil case number used in this

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United States District Court
Northern District of California

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order (No. C 13-2439 JST (PR)) and the words COURT-ORDERED AMENDED COMPLAINT

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on the first page. Because an amended complaint completely replaces the original complaint,

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plaintiff must include in it all the claims he wishes to present. See Ferdik v. Bonzelet, 963 F.2d

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1258, 1262 (9th Cir. 1992). He may not incorporate material from the original complaint by

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reference. Failure to amend within the designated time and in accordance with this order will

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result in the dismissal of this case. If plaintiff needs more time to file the amended complaint, he

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may file a motion for an extension of time that shows good cause for the requested extension.

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Such a motion must be filed before the deadline for the amended complaint.
In his amended complaint, plaintiff must specify: (1) the location and date of the alleged

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car crash; (2) whether his arrest arose out of the alleged car crash incident or surrounding events;

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(3) whether there are any charges pending from the alleged car crash incident; (4) whether he

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litigated a claim for damages arising out of the alleged car crash incident; (5) if he did litigate a

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claim, the result of that litigation; (6) the name of the attorney who "quit" and the the threats that

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defendant CHP officers allegedly made to that attorney; (7) the alleged fraudulent statements

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made in the incident report; (8) when and how the CHP denied plaintiff a copy of the incident

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report or other "police report"; (9) how any such reports were necessary for plaintiff to access the

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While the Court's August 27, 2013 Order of Dismissal idenitified Doris Maxine Guyer as a CHP
officer, plaintiff has clarified that this defendant is a private citizen and not a CHP officer.
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courts. Sweeping conclusory allegations will not suffice; plaintiff must instead "set forth specific

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facts as to each individual defendant’s" deprivation of protected rights. Leer v. Murphy, 844 F.2d

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628, 634 (9th Cir. 1988).
Finally, the complaint does not adequately allege any conspiracy liability because the

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conspiracy allegations are mere conclusions. Conclusory allegations of a conspiracy which are not

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supported by material facts are insufficient to state a claim. See Simmons v. Sacramento County

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Superior Court, 318 F.3d 1156, 1161 (9th Cir. 2003); Woodrum v. Woodward County, 866 F.2d

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1121, 1126 (9th Cir. 1989). "'A civil conspiracy is a combination of two or more persons who, by

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some concerted action, intend to accomplish some unlawful objective for the purpose of harming

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another which results in damage.'" See Gilbrook v. City of Westminster, 177 F.3d 839, 856 (9th

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United States District Court
Northern District of California

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Cir. 1999) (citation omitted). A civil plaintiff "must show that the conspiring parties reached a

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unity of purpose or a common design and understanding, or a meeting of the minds in an unlawful

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arrangement." Id. (internal citation and quotation marks omitted). A conspiracy is not itself a

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constitutional tort under 42 U.S.C. § 1983, but may "enlarge the pool of responsible defendants by

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demonstrating their causal connections to the violation." Lacey v. Maricopa County, 693 F.3d

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896, 935 (9th Cir. 2012) (en banc). In his amended complaint, plaintiff may attempt to plead

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conspiracy-based liability for his claims but must provide non-conclusory allegations sufficient to

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state a claim based on conspiracy-based liability. As to each conspiracy he alleges existed, he

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should explain the role of each defendant in the conspiracy. He needs to allege with particularity

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who made an agreement with whom, when the agreement was made, what the agreement was, and

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what the purpose of the agreement was. He also needs to identify the role of each individual

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defendant in the conspiracy-based claim.

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It is the plaintiff's responsibility to prosecute this case. Plaintiff must keep the court

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informed of any change of address by filing with the clerk a separate paper headed "Notice of

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Change of Address." Papers intended to be filed in this case should be addressed to the clerk and

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not to the undersigned. Plaintiff also must comply with the Court's orders in a timely fashion.

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Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to

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Federal Rule of Civil Procedure 41(b).
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The Clerk shall reopen the file.

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The Clerk is further directed to terminate Doris Maxine Guyer, Darcy Drew and Sonoma

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County as defendants on the court docket.
IT IS SO ORDERED.
Dated: October 16, 2013
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JON S. TIGAR
United States District Judge

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United States District Court
Northern District of California

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