Garcia v. Blahnik et al

Filing 26

ORDER ADOPTING REPORT AND RECOMMENDATION 21 . Plaintiff's objections to the R & R are overruled. The defendant's motion to dismiss 20 is granted. This action is dismissed without prejudice. Signed by Judge Larry Alan Burns on 6/19/15. (All non-registered users served via U.S. Mail Service)(kas)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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RUBEN DARIO GARCIA, Jr.,

CASE NO. 14cv00875-LAB (BGS)
Plaintiff,

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vs.
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ORDER ADOPTING REPORT AND
RECOMMENDATION

R. BLAHNIK, et al.,

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Defendants.

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Judge Skomal issued his report and recommendation (R & R) pursuant to 28 U.S.C.

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§ 636 on Defendants' motion to dismiss Plaintiff Ruben Dario Garcia, Jr.'s state law claims,

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recommending that the Defendants' motion be granted.

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I.

Background

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Garcia is a prisoner incarcerated at R. J. Donovan Prison. (Docket no. 1.) He

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proceeds pro se in this civil rights action filed under 42 U.S.C. § 1983. (Id.) He alleges

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causes of action against various prison officials for: (1) retaliation in violation of the First

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Amendment (id. at 5); (2) denying his right to equal protection under the California State

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Constitution, Article I, § 7 (id. at 22.); and (3) violation of the California Code of Regulations

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Title 15, §§ 3084.1(d), 3160(a), 3141(a), and Penal Code 2600. (Id. at 19–22.)

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After determining that Garcia never filed the required Government Claim, Defendants

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filed a motion to dismiss his state law claims pursuant to Fed. R. Civ. P. 12(b)(6). (Docket

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no. 20.) Garcia didn't file an opposition. Judge Skomal issued an R & R recommending this

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Court grant the Defendants' motion since the record adequately supported Garcia's failure

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to properly file a Government Claim with the Victims' Compensation and Government Claims

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Board (VCGCB) as required by California law. (Docket no. 21.) Garcia then filed his objection

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to the R & R. (Docket no. 25.)

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II.

Legal Standard

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A district court has jurisdiction to review a Magistrate Judge's report and

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recommendation on dispositive matters. Fed. R. Civ. P. 72(b). A district judge "may accept,

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reject, or modify the recommended decision" on a dispositive matter prepared by a

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magistrate judge proceeding without the consent of the parties for all purposes. Fed. R. Civ.

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P. 72(b); see also 28 U.S.C. § 636(b)(1). "The court shall make a de novo determination of

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those portions of the [report and recommendation] to which objection is made." § 636(b)(1);

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see also United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) ("The

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statute makes it clear that the district judge must review the magistrate judge's findings and

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recommendations de novo if objection is made, but not otherwise.").

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III.

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Discussion
The R & R discusses the factual and procedural history of this case. It's repeated

here only as necessary to respond to Garcia's objections.

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Garcia broadly objects to the R & R and asks the Court to only consider the facts and

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causes of action as they are alleged in the original complaint and ignore the R & R's and

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Defendants' restatement of them. (Docket no. 20 at 3). He makes only four specific

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objections. First, Garcia objects to the R & R's presentation of the case, stating that "[b]y any

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comparement [sic] made it becomes obvious that the Magistrate and Defendants have

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omitted/mis-represented Plaintiff [sic] actual claims to the Court." (Docket no. 25 at 3, 7–9.)

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Second, he objects to the R & R's finding that failure to allege compliance with the

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Government Claims Act or to file a Government Claim with the VCGCB supports the

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Defendants' motion to dismiss. (Id. at 4, 18–20.) Third, Garcia objects to the R & R's

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recitation that, under the Civil Local Rules, his failure to respond to the motion to dismiss may

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constitute consent to grant the motion. (Docket no. 25 at 9–13; see also Docket no. 21 at 2
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n. 2.) Finally, Garcia objects to the R & R's statement of the controlling legal standard of

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review for the Defendants' motion to dismiss, contending it denies him fair consideration by

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the Court on the merits of his objections. (Docket no. 25 at 14–17.)

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A.

The R & R's Presentation of Alleged Facts and Causes of Action

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Garcia objects to the R & R's presentation of the facts and causes of action alleged,

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claiming it "misconstrued those actual facts presented by the operative complaint in support

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of those causes of action made against Defendants, and/or falsely attributes statements of

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fact to Plaintiff which fail to be supported by the record." (Docket no. 25 at 7.)

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Specifically, he states that a review of the R & R will show that Judge Skomal

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"attributes the following statement of facts to the Plaintiff: '. . . Plaintiff further alleges that

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Defendant Blahnik violated his right to privacy under the California Constitution by allowing

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prisoner-clerks to copy his legal materials, rather than allowing Plaintiff to make the copies

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himself.'" (Docket no. 25 at 7.) He argues the mere fact that this statement is not explicitly

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in the original complaint shows the Magistrate's inclination "to attribute falsely statement [sic]

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not presented by the operative complaint to Plaintiff" and "to mislead the Court." (Id. at 9.)

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But, this quoted language merely paraphrases Garcia's complaint. (See Docket no.

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1 at 22) ("Blahnik by taking possession of plaintiff's legal papers and handing such to Law

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Library Inmate Clerk's [sic] to be taken to a secluded and hiden [sic] area to be duplicated

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by way of copier machine . . . stand in violation of plaintiff [sic] vested civil right of

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confidentially given these papers . . . are protected under Plaintiff's privacy rights . . . ").

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More importantly, in the sentence immediately preceding the one Garcia cites, the R & R

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succinctly and accurately summarizes all of Garcia's causes of actions as they are presented

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in the complaint and includes accurate, full citations to his complaint and the factual

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allegations therein. The Court finds the R & R's presentation of the facts and the causes of

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action is accurate and therefore this objection is without merit.

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B.

Failure to File a Government Claim with VCGCB

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Citing Escamilla v. Dept. of Corr. and Rehab., 46 Cal. Rptr. 3d 408 (Cal. Ct. App.

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2006), Garcia alleges he presented his claim to the California Department of Corrections and
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Rehabilitation (CDCR), so he wasn't required to file a Government Claim with the VCGCB.

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(Docket no. 25 at 5.)

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But, Escamilla is inapposite to this case. There the relevant question was whether

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Escamilla's claim was for money damages, or a writ of mandamus for a return of personal

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property from a bailee. 46 Cal. Rptr. 3d. at 414–15. If it was a claim for damages, then the

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California Tort Claims Act's presentation requirement would have been triggered and

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Escamilla would have been required to file a Government Claim with the VCGCB. If he was

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instead seeking a writ of mandamus for recovery of his belongings from a bailee, then he

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was not seeking damages and therefore the claims presentation requirement would not have

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been triggered. Id. Contrary to Garcia's claims, in Escamilla the court found "Escamilla's

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petition for writ of habeas corpus should be treated as a petition for writ of mandamus

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seeking specific recovery of his personal property or its value, and therefore is not a 'claim

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for money or damages' pursuant to § 905.2." Id. at 418 (emphasis added).

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Unlike Escamilla, Garcia does not seek return of personal property from a bailee or

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any relief that could reasonably be construed as such. Instead, Garcia requests the Court

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grant injunctive relief instructing the prison to keep their law library copier in clear view of

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inmates and grant damages of $500,000.00. (Docket no. 1 at 25.) Therefore, Garcia's

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objection to the R & R's statement of the legal standard for exhaustion under the California

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Tort Claims Act is without merit.

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C.

Garcia's Failure to Reply to the Motion to Dismiss

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Garcia objects to the R & R's mention that his failure to reply to the original motion to

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dismiss may, under the Civil Local Rules, constitute consent to the granting of the motion,

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because he is incarcerated and, as a pro se plaintiff, has little access to legal resources to

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respond in a timely manner. (Docket no. 25 at 9–13). This argument is based on the

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unfounded worry that the Court would dismiss the complaint without reviewing the motion to

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dismiss or his objection. (Id. at 10.) While Garcia's failure to reply could constitute a consent

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to the dismissal "or a request for ruling by the court," the R & R did consider the

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motion to dismiss on its merits. The Court has also reviewed the motion to dismiss de novo

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on the merits. Thus, this objection is unfounded.

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D.

R & R's Standard of Review

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Garcia objects to the R & R's representation of the standard of review for failure to

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state a claim as so overly narrow that, if the Court were to follow the standard as set forth by

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the R & R, it would deny him a fair hearing. (Docket no. 25 at 13–14.)

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With regard to the general principles of law for 12(b)(6) motions to dismiss pro se

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claims, the R & R's presentation is substantially similar to Garcia's presentation. In fact, both

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presentations of the standard of review cite to several of the same cases on the same points

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of law. (Compare Docket no. 21 at 3 with Docket no. 25 at 15–17.) There is one minor

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addition that was not mentioned in the R & R's recommendation: Garcia correctly cites

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Karim-Panahi for the proposition that the court must provide a pro se plaintiff a statement of

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deficiencies before it may dismiss the complaint with prejudice. 839 F.2d 621, 625 (9th Cir.

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1988). However, the R & R, dismissed Garcia's claim without prejudice. The objection is

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without merit.

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IV.

Conclusion and Order

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For these reasons, Garcia's objections to the R & R are OVERRULED. The Court

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ADOPTS the R & R. The Defendant's motion to dismiss is GRANTED. This action is

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DISMISSED WITHOUT PREJUDICE.

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IT IS SO ORDERED.
DATED: June 19, 2015

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HONORABLE LARRY ALAN BURNS
United States District Judge

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