Turner v. Dennis et al

Filing 8

ORDER DISMISSING PLAINTIFF'S COMPLAINT. Signed by Judge Saundra Brown Armstrong on 3/8/18. (Attachments: # 1 Certificate/Proof of Service)(dtmS, COURT STAFF) (Filed on 3/8/2018)

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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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STEPHEN TURNER,

Case No: C 17-07361 SBA

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Plaintiff,
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ORDER DISMISSING
PLAINTIFF’S COMPLAINT

vs.
Dkt. 4

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REGINA DENNIS, et al.,
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Defendants.
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On December 29, 2017, pro se plaintiff Stephen Turner (“Plaintiff”) filed a

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complaint for declaratory and injunctive relief, Dkt. 1, as well as an application to proceed

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in forma pauperis (“IFP”), Dkt. 2. Magistrate Judge Maria-Elena James (the “Magistrate”)

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previously granted Plaintiff’s application to proceed IFP. The matter is presently before the

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Court on the Magistrate’s report and recommendation to dismiss the complaint. Dkt. 4.

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I.

BACKGROUND

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A.

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Plaintiff is a citizen of California and a resident of Alameda County. Compl. ¶ 1,

FACTUAL BACKGROUND

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Dkt. 1. On May 15, 2017, Plaintiff moved his disabled vehicle off the roadway and parked

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it in a bus zone in San Francisco, California. Id. ¶ 16. Plaintiff received a parking citation

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from the San Francisco Municipal Transit Authority (“SFMTA”) under California Vehicle

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Code section 22500(i), which carried a fine of $288. Id. On September 13, 2017, Plaintiff

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contested the citation in the San Francisco County Superior Court (the “Superior Court”),

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“where he was found guilty at a de novo hearing,” i.e., a hearing under Vehicle Code

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section 40230. Id. According to Plaintiff, “no further appeals were allowed.” Id.

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On September 28, 2017, Plaintiff attempted to file an Application for Certification

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Re: Transfer to the Court of Appeal (“Application”) in the Clerk’s Office of the Superior

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Court pursuant to California Rule of Court 8.1005. Compl. ¶ 17.1 Plaintiff made four

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separate attempts to file the Application, but each time the clerks “refused” to file it. Id.

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Plaintiff claims that the refusal to file his Application “constituted [an] official court

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policy.” Id. Plaintiff further claims that, as a result of the clerks’ refusal to file the

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Application, he “lost his case.” Id. ¶ 18. According to Plaintiff, his right of access to the

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courts was thereby violated. Id. ¶ 17.

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B.

PROCEDURAL BACKGROUND

Plaintiff brings the instant action against the Superior Court, as well as five

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individual court employees in their official capacities: (1) Regina Dennis (“Dennis”), Court

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Manager; (2) Wayne Parinas (“Parinas”), Court Administrator; (3) Emalyn Bura (“Bura”),

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Court Supervisor; (4) Gina R. S. Gonzalez (“Gonzalez”), Acting Supervisor of Appeals;

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and (5) Mike Macapinlac (“Macapinlac”), Appeals Clerk. Plaintiff also brings the instant

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action against Edward D. Reiskin, CEO/Director of the SFMTA (“Reiskin”).

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Plaintiff alleges causes of action for: (1) Violation of the First Amendment, Access

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to the Courts, 42 U.S.C. § 1983, against all defendants; (2) Violation of California

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Constitution, Article I § 3, Access to the Courts, against all defendants; and (3) Monell

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Claim, against the Superior Court.2 As relief, he seeks a temporary stay of enforcement of

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his unpaid parking fine pending resolution of this matter, or alternatively, a preliminary and

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permanent injunction barring the collection of his unpaid fine. Plaintiff also seeks a

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declaratory judgment that the defendants’ actions and official policy violated his right of

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access to the courts under the United States and California Constitutions.

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Pursuant to California Rules of Court Rule 8.1005(b), a party may file an
application asking the appellate division of the superior court to certify a case for transfer to
the Court of Appeal. The rule applies to “cases within the appellate jurisdiction of the
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Monell v. Dep’t of Soc. Servs. of New York, 436 U.S. 658 (1978).
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On January 10, 2018, the Magistrate issued a combined Order Granting Plaintiff’s

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Application to Proceed in Forma Pauperis and Report and Recommendation (“R&R”).

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Dkt. 4. The Magistrate recommends: (1) dismissal of the § 1983 claim against the Superior

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Court, Dennis, Parinas, Bura, Gonzalez, and Macapinlac, without leave to amend, based on

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quasi-judicial and sovereign immunity; (2) dismissal of the § 1983 claim against Reiskin,

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with leave to amend, for failure to state a claim; (3) dismissal of the Monell claim, without

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leave to amend, based on sovereign immunity; and (4) dismissal of the California

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constitutional claim, with leave to amend, for failure to state a claim.

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On January 19, 2018, Plaintiff filed Objections to Magistrate’s Report and

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Recommendation (“Objections”). Dkt. 7. In his Objections, Plaintiff agrees that the § 1983

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claim against Dennis, Parinas, Bura, and Gonzalez should be dismissed. Id. at 2. However,

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Plaintiff objects to the dismissal of his § 1983 claim against Macapinlac, who he asserts is

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also a properly named defendant to the California constitutional claim. Id. Plaintiff does

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not specifically address his § 1983 or Monell claims against the Superior Court.

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II.

LEGAL STANDARDS

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A.

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A magistrate judge may prepare findings and recommendations on dispositive

REVIEW OF MAGISTRATE’S R&R

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matters without the consent of the parties pursuant to 28 U.S.C. § 636(b)(1). See Reynaga

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v. Cammisa, 971 F.2d 414, 416 (9th Cir. 1992). Once findings and recommendations are

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served, the parties have fourteen days to file specific written objections thereto. 28 U.S.C.

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§ 636(b)(1)(C); Fed. R. Civ. P. 72(b)(2). A judge must review de novo “those portions of

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the report or specified proposed findings or recommendations to which objection is made.”

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28 U.S.C. § 636(b)(1)(C); see also United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th

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Cir. 2003) (“The statute makes it clear that the district judge must review the magistrate

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judge’s findings and recommendations de novo if objection is made, but not otherwise.”)

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(emphasis in original). A judge may “accept, reject, or modify, in whole or in part, the

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findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C).

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B.

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A district court may authorize the commencement of an action without prepayment

IFP PLEADINGS

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of fees by a litigant who demonstrates that he is unable to pay. 28 U.S.C. §1915(a)(1). The

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Court has a continuing duty to dismiss such an action, however, if it determines that the

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action “fails to state a claim on which relief may be granted.” Id. § 1915(e)(2)(B)(ii); see

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also Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (“It is also clear that

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section 1915(e) not only permits but requires a district court to dismiss an in forma

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pauperis complaint that fails to state a claim.”) (emphasis added).

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III.

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DISCUSSION
As discussed above, the Magistrate recommends dismissal of Plaintiff’s claims—

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some with leave to amend and some without—on the grounds of failure to plead facts

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sufficient to state a claim, quasi-judicial immunity, and sovereign immunity. As discussed

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below, however, the Court finds that Plaintiff’s claims fail for a more fundamental reason,

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i.e., he has no right to appeal from the Superior Court’s decision on his parking citation.

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Accordingly, the Court rejects the recommendations of the Magistrate in favor of the

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reasoning and decision set forth in this Order.

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A.

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To maintain a claim under 42 U.S.C. § 1983, a plaintiff must plead two essential

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elements: (1) the violation of a right secured by the Constitution and laws of the United

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States; and (2) that the alleged deprivation was committed by a person acting under color of

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state law. West v. Atkins, 487 U.S. 42, 48 (1988); Nurre v. Whitehead, 580 F.3d 1087,

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1092 (9th Cir. 2009). Section 1983 is not itself a source of substantive rights, but a

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jurisdictional vehicle for vindicating rights elsewhere conferred. See Thornton v. City of

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St. Helens, 425 F.3d 1158, 1164 (9th Cir. 2008) (citations omitted).

SECTION 1983

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Plaintiff brings a claim under § 1983 to vindicate his right of access to the courts.

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As held by the Supreme Court, the constitutional right of access to courts “is ancillary to

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the underlying claim, without which a plaintiff cannot have suffered injury by being shut

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out of court.” Christopher v. Harbury, 536 U.S. 403, 415 (2002); see also Lewis v. Casey,
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518 U.S. 343, 349 (1996) (access to courts claim requires plaintiff to show that the

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defendant’s conduct caused “actual injury”). To state a claim for deprivation of the right of

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access to courts, a plaintiff must show: (1) the loss of a “nonfrivolous” claim; (2) the

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official acts frustrating the litigation; and (3) a remedy that may be awarded as recompense

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but that is not otherwise available in a future suit. Christopher, 536 U.S. at 415. Here,

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Plaintiff alleges that various clerks refused to file his Application to certify for transfer an

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appeal from the Superior Court’s judgment on his parking citation. Because no such right

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of appeal exists, however, Plaintiff fails to establish actual injury.

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“It is settled that the right of appeal is statutory and that a judgment or order is not

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appealable unless expressly made so by statute.” People v. Mazurette, 24 Cal. 4th 789, 792

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(2001). Pursuant to California Vehicle Code section 40230, a person contesting a parking

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citation may seek de novo judicial review of the issuing agency’s administrative decision in

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the superior court (formerly municipal court). No appeal lies from the judgment of the

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superior court. Smith v. City of L.A. Dep’t of Transp., 59 Cal. App. 4th Supp. 7, 10 (1997)

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(a decision under § 40230 “does not constitute an appealable judgment”); Lagos v. City of

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Oakland, 41 Cal. App. 4th Supp. 10, 12 (1995) (appeal from a decision under § 40230 “is

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not expressly provided for” by statute).3 The superior court is the court of last resort, and

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the appellate department is without jurisdiction to hear (or certify for transfer) an appeal.

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Smith, 59 Cal. App. 4th Supp. at 10 (dismissing appeal from a municipal court’s decision

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on a parking citation for lack of jurisdiction); Lagos, 41 Cal. App. 4th at 12 (same).

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In view of the foregoing, even if the Superior Court clerks erred in refusing to accept

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Plaintiff’s Application, no injury ensued from the frustration of his appeal. Accordingly,

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Plaintiff does not (and cannot) state a claim for violation of his right of access to the courts,

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and the Court dismisses said claim without leave to amend. See Akhtar v. Mesa, 698 F.3d

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1202, 1212 (9th Cir. 2012) (dismissal without leave to amend is proper if “it is absolutely

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clear that the deficiencies of the complaint could not be cured by amendment”).

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Indeed, Plaintiff explicitly acknowledges: “By state statute, no further appeals were
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B.

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A local government entity may be held liable under § 1983 if a “policy, practice, or

MONELL

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custom of the entity can be shown to be a moving force behind a violation of constitutional

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rights.” Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011) (citing Monell,

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436 U.S. at 694). There can be no Monell liability without an underlying constitutional

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violation, however. Scott v. Henrich, 39 F.3d 912, 916 (9th Cir. 1994); Jackson v. City of

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Bremerton, 268 F.3d 646, 653-54 (9th Cir. 2001) (“Neither a municipality nor a supervisor

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. . . can be held liable under § 1983 where no injury or constitutional violation has

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occurred.”) (citing City of Los Angeles v. Heller, 472 U.S. 796, 799 (1986)); accord

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McSherry v. City of Long Beach, 584 F.3d 1129, 1147 (9th Cir. 2009). As discussed

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above, Plaintiff fails to allege a violation of his right of access to the courts. Plaintiff

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therefore fails to state a claim under Monell, and the Court dismisses said claim without

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leave to amend. See Akhtar, 698 F.3d at 1212.

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C.

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Plaintiff’s claim for deprivation of the right of access to the courts under the

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California Constitution arises under state law. A federal court may exercise supplemental

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jurisdiction over such state law claims if they are “so related” to other claims over which

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the court has original jurisdiction that they “form part of the same case or controversy.” 28

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U.S.C. § 1367(a). However, after a federal court dismisses all claims over which it has

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original jurisdiction, supplemental jurisdiction may be declined. 28 U.S.C. § 1367(c)(3);

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see also Sanford v. MemberWorks, Inc., 625 F.3d 550, 561 (9th Cir. 2010) (citing

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Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988)). Having dismissed

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Plaintiff’s claims under § 1983, the Court declines to exercise its supplemental jurisdiction

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over Plaintiff’s state law claim.

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IV.

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CALIFORNIA CONSTITUTION

CONCLUSION
For the reasons stated above, the Court HEREBY REJECTS the Magistrate’s R&R

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in favor of the instant Order. IT IS HEREBY ORDERED THAT Plaintiff’s complaint is

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DISMISSED without leave to amend. Said dismissal is without prejudice to Plaintiff’s
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ability to present his claims in a paid complaint and/or to bring his state law claim(s) in the

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appropriate state court. Any appeal taken from this ruling will not be in good faith within

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the meaning of 28 U.S.C. § 1915(a)(3).

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IT IS SO ORDERED.
Dated: 3/8/18

______________________________
SAUNDRA BROWN ARMSTRONG
Senior United States District Judge

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