Lino v. Kellerman et al

Filing 74

ORDER Denying 54 Motion for Reconsideration ; Denying 61 Motion to Appoint Counsel ; Denying as Moot 65 Motion Requesting for the Court's Order for All Disposition, Exhibits, Transcripts, and Accurate Records of the Clerk; Denying 67 Motion for Permission to File this Motion to Alter, Rearrange & Reconsider the Court's Order/Judgment; Denying as Moot 70 Motion Requesting the Court's Permission to Stay Appeal; Denying 73 Motion to Appoint Counsel. It is further or dered that Plaintiff's Fifth Amended Complaint is dismissed without prejudice as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(b) and § 1915A(b) and for failing to exhaust his administrative remedies pursuant to 42 U.S.C. § 1997e. It is further certified that an IFP Appeal from this final order of dismissal would not appear to be taken "in good faith". Signed by Judge Michael M. Anello on 2/28/2012. (All non-registered users served via U.S. Mail Service)(leh)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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OWEN LINO,
CDCR #J-45685,

Civil No.

Plaintiff,

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ORDER:
(1) DENYING MOTION FOR
RECONSIDERATION AND
MOTION TO ALTER REARRANGE
AND RECONSIDER THE COURT’S
ORDER [ECF Nos. 54, 67];

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vs.

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(2) DENYING MOTIONS TO
APPOINT COUNSEL; AND

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(3) DISMISSING FIFTH AMENDED
COMPLAINT AS FRIVOLOUS
PURSUANT TO 28 U.S.C.
§§ 1915(e)(2) AND 1915A(b)

J. KELLERMAN, et al.;

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Defendants.

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I.

Procedural History

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On February 26, 2010, Owen Lino (“Plaintiff”), a state prisoner currently incarcerated

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at Kern Valley State Prison, and proceeding pro se, submitted a civil action pursuant to 42

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U.S.C. § 1983. Additionally, Plaintiff filed a Motion to Proceed In Forma Pauperis (“IFP”)

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[ECF No. 2]. On April 21, 2010, the Court granted Plaintiff’s Motion to Proceed IFP but sua

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sponte dismissed his Complaint for failing to state a claim upon which relief could be granted.

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See Apr. 21, 2010 Order at 4-5. Plaintiff then filed his First Amended Complaint, along with

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several miscellaneous motions including a Motion for Leave to Supplement his First Amended

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Complaint. The Court granted his request and permitted him sixty (60) days to file a Second

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Amended Complaint. See July 12, 2010 Order at 3.

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Complaint but then sought leave to file a Third Amended Complaint before the Court could

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conduct a sua sponte screening. Plaintiff was granted leave to file a Third Amended Complaint.

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Plaintiff’s Third Amended Complaint was filed on December 8, 2010. The Court conducted a

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sua sponte screening of Plaintiff’s Third Amended Complaint and found dismissal of the entire

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action was warranted for a number of reasons, including the failure of Plaintiff to comply with

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Rule 8 of the Federal Rules of Civil Procedure. See May 20, 2011 Order at 2. Plaintiff was

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granted leave to file a Fourth Amended Complaint. Plaintiff filed his Fourth Amended

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Complaint (“FAC”) on August 23, 2011. In addition, Plaintiff filed a Motion for Preliminary

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Injunction [ECF No. 44], along with his third “Motion to Amend the Pleadings” [ECF No. 46].

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On November 1, 2011, the Court, once again, conducted a sua sponte screening of

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Plaintiff’s Fourth Amended Complaint. The Court denied Plaintiff’s Motion for Preliminary

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Injunction, granted Plaintiff’s Motion to Amend the Pleadings and dismissed his Fourth

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Amended Complaint for failing to state a claim and as frivolous. See Nov. 1, 2011 Order at 11.

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Plaintiff was granted leave to file a Fifth Amended Complaint. Id. Plaintiff has now filed a Fifth

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Amended Complaint, along with a Motion for Reconsideration and a “Motion for Permission

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to File This Motion to Alter, Rearrange & Reconsider the Court’s Order/Judgment.” Plaintiff

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has also filed a Motion to Appoint Counsel.

Plaintiff filed a Second Amended

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Plaintiff’s Fifth Amended Complaint now names seventy three (73) Defendants and

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exceeds the pages limitations previously set by the Court. However, the Court will consider

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Plaintiff’s Fifth Amended Complaint in its entirety.

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II.

Motions for Appointment of Counsel

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Plaintiff requests the appointment of counsel to assist him in prosecuting this civil action.

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The Constitution provides no right to appointment of counsel in a civil case, however, unless an

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indigent litigant may lose his physical liberty if he loses the litigation. Lassiter v. Dept. of Social

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Services, 452 U.S. 18, 25 (1981). Nonetheless, under 28 U.S.C. § 1915(e)(1), district courts are

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granted discretion to appoint counsel for indigent persons. This discretion may be exercised

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only under “exceptional circumstances.” Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991).

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“A finding of exceptional circumstances requires an evaluation of both the ‘likelihood of success

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on the merits and the ability of the plaintiff to articulate his claims pro se in light of the

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complexity of the legal issues involved.’ Neither of these issues is dispositive and both must be

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viewed together before reaching a decision.” Id. (quoting Wilborn v. Escalderon, 789 F.2d

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1328, 1331 (9th Cir. 1986)).

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The Court denies Plaintiff’s request without prejudice, as neither the interests of justice

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nor exceptional circumstances warrant appointment of counsel at this time. LaMere v. Risley,

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827 F.2d 622, 626 (9th Cir. 1987); Terrell, 935 F.2d at 1017.

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III.

Motions for Reconsideration and Motion pursuant to Rule 60(b)

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Plaintiff seeks reconsideration and relief from the Court’s Order rejecting Plaintiff’s

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Motion to Amend his Fifth Amended Complaint. See Dec. 12, 2011 Order at 1. In addition,

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Plaintiff seeks reconsideration of the Court’s November 1, 2011 Order dismissing his Fourth

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Amended Complaint and granting him leave to file a Fifth Amended Complaint. [ECF Nos. 54,

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67].

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Under Rule 60, a motion for “relief from a final judgment, order or proceeding” may be

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filed within a “reasonable time,” but usually must be filed “no more than a year after the entry

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of the judgment or order or the date of the proceeding.” FED.R.CIV.P. 60(c). Reconsideration

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under Rule 60 may be granted in the case of: (1) mistake, inadvertence, surprise or excusable

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neglect; (2) newly discovered evidence; or (3) fraud; or if (4) the judgment is void; (5) the

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judgment has been satisfied; or (6) for any other reason justifying relief. FED.R.CIV. P. 60(b).

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As to the first request, the Court rejected Plaintiff’s Motion to Amend his Fifth Amended

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Complaint due to the fact that he filed that motion with his Fifth Amended Complaint. If

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Plaintiff wanted to add additional facts or evidence with his Fifth Amended Complaint, he

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should have done so at the time he filed it. Second, Plaintiff objects to every finding by the

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Court with respect to his Fourth Amended Complaint but he merely reiterates his previous

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allegations which the Court has already found deficient.

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A motion for reconsideration cannot be granted merely because Plaintiff is unhappy with

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the judgment, frustrated by the Court’s application of the facts to binding precedent or because

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he disagrees with the ultimate decision. See 11 Charles Alan Wright & Arthur R. Miller Federal

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Practice & Procedure 2d § 2858 (Supp. 2007) (citing Edwards v. Velvac, Inc., 19 F.R.D. 504,

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507 (D. Wis. 1956)). Thus, without more, the Court finds Plaintiff has failed to show that the

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Court rendered a “manifestly unjust decision,” and has further failed to identify any intervening

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changes in controlling law which justify reconsideration of the Court’s Order. McDowell, 197

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F.3d at 1255; School Dist. No. 1J, 5 F.3d at 1263. Plaintiff’s Motion for Reconsideration and

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“Motion for Permission to File this Motion to Alter, Rearrange and Reconsider the Court’s

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Order/Judgment” [ECF Nos. 54, 65] are DENIED.

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IV.

Sua Sponte Screening per 28 U.S.C. §§ 1915(e)(2)(b)(ii) and 1915A(b)(1)

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As the Court stated in its previous Orders, notwithstanding IFP status or the payment of

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any partial filing fees, the Court must subject each civil action commenced pursuant to 28 U.S.C.

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§ 1915(a) to mandatory screening and order the sua sponte dismissal of any case it finds

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“frivolous, malicious, failing to state a claim upon which relief may be granted, or seeking

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monetary relief from a defendant immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

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Section 1983 imposes two essential proof requirements upon a claimant: (1) that a person

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acting under color of state law committed the conduct at issue, and (2) that the conduct deprived

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the claimant of some right, privilege, or immunity protected by the Constitution or laws of the

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United States. See 42 U.S.C. § 1983.

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A.

Rule 8

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The Court has repeatedly warned Plaintiff that he must comply with Rule 8. Specifically,

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Rule 8 provides that in order to state a claim for relief in a pleading it must contain “a short and

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plain statement of the grounds for the court’s jurisdiction” and “a short and plain statement of

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the claim showing that the pleader is entitled to relief.” FED.R.CIV.P. 8(a)(1) & (2). Plaintiff’s

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Fifth Amended Complaint is rambling, names seventy three (73) Defendants and imposes an

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“unfair burden on litigants and judges.” McHenry v. Renne, 84 F.3d 1172, 1180 (9th Cir. 1996).

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B.

Plaintiff’s Due Process claims

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Plaintiff alleges that his due process rights were violated during his disciplinary hearing

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following his receipt of a rules violation report for having possession of an inmate manufactured

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weapon in November of 2008. (See FAC at 20-21.) Plaintiff was sentenced to Administrative

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Segregation (“Ad-Seg”) as a result of the disciplinary hearing. (Id.) However, the Court

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dismisses these claims as duplicative, and therefore frivolous, as Plaintiff has already litigated

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these claims in the California Court of Appeal. A court “may take notice of proceedings in other

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courts, both within and without the federal judicial system, if those proceedings have a direct

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relation to matters at issue.” United States ex rel. Robinson Rancheria Citizens Council v.

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Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992).

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Plaintiff brought a petition for writ of habeas corpus in the California Court of Appeals,

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Fourth Appellate District, Division 1, arguing that Defendants violated his Fourteenth

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Amendment due process rights based on the same set of facts set forth in his Fifth Amended

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Complaint. See In re Owen Lino, No. D060395 (Ca. App. Ct., 4th Dist., Div. 1, Sept. 29, 2011).

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Specifically, the Court of Appeals found, based on the same set of facts, that Plaintiff “has not

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established a due process violation.” (Id.)

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Because the issue of whether Plaintiff’s due process rights were violated based on the

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same set of facts at issue in this case have already been decided by the California Court of

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Appeal, these claims must be dismissed as duplicative. A prisoner’s complaint is considered

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frivolous under 28 U.S.C. § 1915A(b)(1) if it “merely repeats pending or previously litigated

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claims.” Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995) (construing former 28

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U.S.C. § 1915(d)) (citations and internal quotations omitted).

Thus, the Court hereby

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DISMISSES Plaintiff’s due process claims that arise from his disciplinary hearings as frivolous.

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See Cato, 70 F.3d at 1105 n.2; Resnick, 213 F.3d at 446 n.1.

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C.

Religious claims

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Additionally, Plaintiff, once again, claims that his right to exercise his religion were

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violated by Defendants failure to provide him with a religious diet. However, these claims are

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also identical to the claims that Plaintiff has already raised in Lino v. Small, et al., S.D. Cal. Civil

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Case No. 09cv1834 MMA (PCL) (Orig. Compl. at 4-5.). Because Plaintiff has already litigated

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the same claims presented in the instant action in Lino v. Small, et al., S.D. Cal. Civil Case No.

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09cv1834 MMA (PCL), the Court hereby DISMISSES Plaintiff’s religious claims from this

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action. See Cato, 70 F.3d at 1105 n.2.

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D.

Plaintiff’s remaining claims

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The remaining of the claims brought by Plaintiff in his Fifth Amendment complaint either

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arose after he initially filed this action on February 26, 2010 or he did not adequately exhaust

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his administrative remedies prior to bringing this action on February 26, 2010. A review of the

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two hundred and eighty six (286) pages of exhibits attached to his Fifth Amended Complaint

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demonstrate that Plaintiff did not adequately complete exhaustion of these claims prior to

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bringing this action.

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The PLRA amended 42 U.S.C. § 1997e(a) to provide that “[n]o action shall be brought

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with respect to prison conditions under section 1983 . . . by a prisoner confined in any jail, prison

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or other correctional facility until such administrative remedies as are available are exhausted.”

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42 U.S.C. § 1997e(a). “Once within the discretion of the district court, exhaustion in cases

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covered by § 1997e(a) is now mandatory.” Porter v. Nussle, 534 U.S. 516 (2002). “The

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‘available’ ‘remed[y]’ must be ‘exhausted’ before a complaint under § 1983 may be

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entertained,” Booth v. Churner, 532 U.S. 731, 738 (2001), and “regardless of the relief offered

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through administrative procedures.”

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Woodford v. Ngo, 548 U.S. 81, 83-84 (2006) that “[p]roper exhaustion demands compliance with

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an agency’s deadlines and other critical procedural rules because no adjudicative system can

Id. at 741.

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Moreover, the Supreme Court held in

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function effectively without imposing some orderly structure on the court of its proceedings.”

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Id. at 90. The Court further held that “[proper exhaustion] means ... a prisoner must complete

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the administrative review process in accordance with the applicable procedural rules . . . as a

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precondition to bring suit in federal court.” Id.

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The plain language of 42 U.S.C. § 1997e(a) provides that no § 1983 action “shall be

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brought . . . until such administrative remedies as are available are exhausted.” 42 U.S.C.

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§ 1997e(a) (emphasis added). The Ninth Circuit’s decision in McKinney v. Carey, 311 F.3d

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1198 (9th Cir. 2002) holds that prisoners who are incarcerated at the time they file a civil action

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which challenges the conditions of their confinement are required to exhaust “all administrative

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remedies as are available” as a mandatory precondition to suit. See McKinney, 311 F.3d at 1198;

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see also Perez v. Wis. Dep’t of Corrections, 182 F.3d 532, 534-35 (7th Cir. 1999) (“Congress

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could have written a statute making exhaustion a precondition to judgment, but it did not. The

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actual statute makes exhaustion a precondition to suit.”) (emphasis original). Section 1997e(a)

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“clearly contemplates exhaustion prior to the commencement of the action as an indispensable

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requirement. Exhaustion subsequent to the filing of the suit will not suffice.” McKinney, 311

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F.3d at 1198 (quoting Medina-Claudio v. Rodriquez-Mateo, 292 F.3d 31, 36 (1st Cir. 2002)).

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Accordingly, because all the remaining claims in Plaintiff’s Fifth Amended Complaint

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were not exhausted prior to bringing this action, those claims are dismissed pursuant to 42

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U.S.C. § 1997e.

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V.

Motion for Record on Appeal and Motion Requesting Stay of Appeal

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Plaintiff seeks from this Court “all disposition, exhibits, transcripts and accurate records

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of the Clerk” [ECF No. 65] in support of the Notice of Appeal Plaintiff filed on November 30,

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2011. Plaintiff has since sought a “Motion Requesting the Court’s Permission to Stay Appeal”

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[ECF No. 70]. Both Motions are DENIED as moot in light of the Ninth Circuit Court of Appeal

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finding Plaintiff’s appeal frivolous and dismissing the appeal for failure to respond the Ninth

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Circuit’s Order filed with this Court on February 15, 2012.

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VI.

Conclusion and Order

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Good cause appearing, IT IS HEREBY ORDERED that:

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1.

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Plaintiff’s Motion for Reconsideration and Motion for Permission to Alter,

Arrange & Reconsider the Court’s Order [ECF Nos. 54, 67] are DENIED.

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2.

Plaintiff’s Motions for Appointment of Counsel [ECF Nos. 61, 73] are DENIED.

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3.

Plaintiff’s Motion for the Court’s Record and Motion to Stay Appeal [ECF Nos.

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65, 70] are DENIED as moot.

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IT IS FURTHER ORDERED that:

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4.

Plaintiff’s Fifth Amended Complaint [ECF No. 60] is DISMISSED without

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prejudice as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(b) and § 1915A(b) and for failing to

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exhaust his administrative remedies pursuant to 42 U.S.C. § 1997e. In addition, the Court finds

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further amendment would be futile. See Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 339 (9th

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Cir. 1996) (denial of a leave to amend is not an abuse of discretion where further amendment

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would be futile); see also Robinson v. California Bd. of Prison Terms, 997 F. Supp. 1303, 1308

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(C.D. Cal. 1998) (“Since plaintiff has not, and cannot, state a claim containing an arguable basis

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in law, this action should be dismissed without leave to amend; any amendment would be

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futile.”) (citing Newland v. Dalton, 81 F.3d 904, 907 (9th Cir. 1996)).

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IT IS FURTHER CERTIFIED that an IFP appeal from this final order of

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dismissal would not appear to be taken “in good faith” pursuant to 28 U.S.C. § 1915(a)(3). See

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Coppedge v. United States, 369 U.S. 438, 445 (1962); Gardner v. Pogue, 558 F.2d 548, 550 (9th

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Cir. 1977) (indigent appellant is permitted to proceed IFP on appeal only if appeal would not be

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frivolous).

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The Clerk shall close the file.

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IT IS SO ORDERED.

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DATED: February 28, 2012

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Hon. Michael M. Anello
United States District Judge

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