Adams v. Garcia

Filing 14

ORDER: 1) Granting 9 Motion to Proceed in Forma Pauperis and 2) Dismissing Civil Action for Failing to State a Claim Pursuant to U.S.C. 28 U.S.C. § 1915(e)(2) and § 1915A(b). The Secretary CDCR, or his designee, is ordered to collect fr om prison trust account the $350 balance of the filing fee owed in this case by collecting monthly payments from the trust account in an amount equal to 20% of the preceding month income credited to the account and forward payments to the C lerk of the Court each time the amount in the account exceeds $10 in accordance with 28 USC 1915(b)(2). (Order electronically transmitted to Secretary of CDCR). Signed by Judge Michael M. Anello on 6/23/2017. (A copy of this Order was served on Scott Kernan, Secretary) (All non-registered users served via U.S. Mail Service)(ag)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 vs. 14 16 ORDER: Plaintiff, 13 15 Case No.: 3:17-cv-00433-MMA-AGS EZRA JOHN ADAMS, CDCR #H-27409, 1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS [Doc. No. 9] LEROY GARCIA, Ramona Sheriff’s Department, 17 AND Defendant. 2) DISMISSING CIVIL ACTION FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2) AND § 1915A(b) 18 19 20 21 22 EZRA JOHN ADAMS (“Plaintiff”), proceeding pro se and currently incarcerated 23 at the California Health Care Facility (“CHCF”) in Stockton, California, filed this civil 24 action pursuant to 42 U.S.C. § 1983 in the Northern District of California in December 25 2016 (Doc. No. 1). 26 Because Plaintiff’s Complaint raises claims regarding to property that was seized 27 during his 1988 arrest and subsequent criminal prosecution in San Diego Superior Court, 28 and because the sole Defendant is alleged to have been employed by the San Diego 1 3:17-cv-00433-MMA-AGS 1 County Sheriff’s Department, United States Magistrate Judge Nandor J. Vadas found the 2 case was filed in the improper venue, and transferred it to the Southern District of 3 California pursuant to 28 U.S.C. § 1391(b) and § 1406(a) (Doc. No. 11). Judge Vadas did 4 not rule on Plaintiff’s pending Motion to Proceed In Forma Pauperis (Doc. No. 9) prior to 5 transfer; nor did he conduct a preliminary screening of Plaintiff’s Complaint pursuant to 6 28 U.S.C. § 1915(e)(2) and § 1915A. 7 I. 8 Motion to Proceed In Forma Pauperis All parties instituting any civil action, suit or proceeding in a district court of the 9 United States, except an application for writ of habeas corpus, must pay a filing fee of 10 $400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 11 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 12 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 13 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner granted leave to proceed 14 IFP remains obligated to pay the entire fee in “increments” or “installments,” Bruce v. 15 Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182, 16 1185 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed. See 28 17 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 18 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 19 “certified copy of the trust fund account statement (or institutional equivalent) for ... the 20 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 21 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 22 trust account statement, the Court assesses an initial payment of 20% of (a) the average 23 monthly deposits in the account for the past six months, or (b) the average monthly 24 25                                                 26 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. June 1, 2016). The additional $50 administrative fee does not apply to persons granted leave to proceed IFP. Id. 27 28 1 2 3:17-cv-00433-MMA-AGS 1 balance in the account for the past six months, whichever is greater, unless the prisoner 2 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having 3 custody of the prisoner then collects subsequent payments, assessed at 20% of the 4 preceding month’s income, in any month in which his account exceeds $10, and forwards 5 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); 6 Bruce, 136 S. Ct. at 629. 7 In support of his IFP Motion, Plaintiff has submitted a copy of his CDCR Inmate 8 Statement Report as well as a prison certificate certified by a trust account official at 9 CHCF. See Doc. No. 9 at 5-8; 28 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2; Andrews, 10 398 F.3d at 1119. These statements show that while Plaintiff sustained an average 11 monthly balance of $11.67, he had no monthly deposits to his account over the 6-month 12 period immediately preceding the filing of his Complaint, he had an available balance of 13 zero at the time of filing. See Doc. No. 9 at 5, 7. Thus, the Court assesses Plaintiff’s 14 initial partial filing fee to be $2.33 pursuant to 28 U.S.C. § 1915(b)(1), but acknowledges 15 he may be unable to pay even that minimal initial fee at this time. See 28 U.S.C. 16 § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited from bringing a 17 civil action or appealing a civil action or criminal judgment for the reason that the 18 prisoner has no assets and no means by which to pay the initial partial filing fee.”); 19 Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) 20 acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case based solely on a 21 “failure to pay ... due to the lack of funds available to him when payment is ordered.”). 22 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (Doc No. 9), 23 declines to exact any initial filing fee because his prison certificate indicates he may have 24 “no means to pay it,” Bruce, 136 S. Ct. at 629, and directs the Secretary of the California 25 Department of Corrections and Rehabilitation (“CDCR”), or his designee, to instead 26 collect the entire $350 balance of the filing fees required by 28 U.S.C. § 1914 and 27 forward them to the Clerk of the Court pursuant to the installment payment provisions set 28 forth in 28 U.S.C. § 1915(b)(1). See id. 3 3:17-cv-00433-MMA-AGS 1 II. Sua Sponte Screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A 2 A. 3 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre- Standard of Review 4 answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these 5 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of 6 it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants 7 who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 8 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 9 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that 10 the targets of frivolous or malicious suits need not bear the expense of responding.’” 11 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citations omitted.) 12 “The standard for determining whether a plaintiff has failed to state a claim upon 13 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 14 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 15 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 16 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 17 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 18 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted 19 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 20 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 21 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of 22 a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 23 U.S. at 678. “Determining whether a complaint states a plausible claim for relief [is] ... a 24 context-specific task that requires the reviewing court to draw on its judicial experience 25 and common sense.” Id. The “mere possibility of misconduct” or “unadorned, the 26 defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 27 standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 28 /// 4 3:17-cv-00433-MMA-AGS 1 B. 2 Plaintiff contends that Defendant Leroy Garcia, a Sheriff employed by the County 3 of San Diego, conducted an “illegal” search and seizure of his personal property without 4 a warrant, participated in his “false arrest,” fabricated and/or “orchestrated” false, 5 defamatory, and misleading evidence against him, and “vandalized” his property in 6 Ramona, California, while acting “under color of authority” “on or about November 15, 7 1988.” (Doc. No. 1 at 3, 5-7.) Plaintiff seeks “five million dollars in new money,” to 8 “reverse the conviction,” and asks to be “immediately discharged and returned from 9 custody.” (Id. at 3-4; Doc. No. 1-1 at 7.) Plaintiff’s Allegations 10 C. 11 Plaintiff’s claims first arose “on or about November 15, 1988.” (Doc. No. 1 at 2, 3, Statute of Limitations 12 5) “A claim may be dismissed [for failing to state a claim] on the ground that it is barred 13 by the applicable statute of limitations only when ‘the running of the statute is apparent 14 on the face of the complaint.’” Von Saher v. Norton Simon Museum of Art at Pasadena, 15 592 F.3d 954, 969 (9th Cir. 2010) (quoting Huynh v. Chase Manhattan Bank, 465 F.3d 16 992, 997 (9th Cir. 2006)). “‘A complaint cannot be dismissed unless it appears beyond 17 doubt that the plaintiff can prove no set of facts that would establish the timeliness of the 18 claim.’” Id. (quoting Supermail Cargo, Inc. v. U.S., 68 F.3d 1204, 1206 (9th Cir. 1995)); 19 see also Cervantes v. City of San Diego, 5 F.3d 1273, 1276-77 (9th Cir. 1993) (where the 20 running of the statute of limitations is apparent on the face of a complaint, dismissal for 21 failure to state a claim is proper, so long as Plaintiff is provided an opportunity to amend 22 in order to allege facts which, if proved, might support tolling); see also Tahoe-Sierra 23 Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 216 F.3d 764, 788 (9th Cir. 2000) 24 (court may raise the defense of statute of limitations sua sponte). 25 Because section 1983 contains no specific statute of limitation, federal courts apply 26 the forum state’s statute of limitations for personal injury actions. Jones v. Blanas, 393 27 F.3d 918, 927 (9th Cir. 2004); Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir. 2004); 28 Fink v. Shedler, 192 F.3d 911, 914 (9th Cir. 1999). Before 2003, California’s statute of 5 3:17-cv-00433-MMA-AGS 1 limitations was one year. Jones, 393 F.3d at 927. Effective January 1, 2003, the 2 limitations period was extended to two years. Id. (citing CAL. CIV. PROC. CODE § 335.1). 3 The law of the forum state also governs tolling. Wallace v. Kato, 549 U.S. 384, 394 4 (2007) (citing Hardin v. Straub, 490 U.S. 536, 538-39 (1989)); Jones, 393 F.3d at 927 5 (where the federal court borrows the state statute of limitation, the federal court also 6 borrows all applicable provisions for tolling the limitations period found in state law). 7 Under California law, the statute of limitations for prisoners serving less than a life 8 sentence is tolled for two years. CAL. CIV. PROC. CODE § 352.1(a); Johnson v. California, 9 207 F.3d 650, 654 (9th Cir. 2000), overruled on other grounds, 543 U.S. 499 (2005). 10 Accordingly, the effective statute of limitations for most California prisoners is three 11 years for claims accruing before January 1, 2003 (one year limitations period plus two 12 year statutory tolling), and four years for claims accruing thereafter (two year limitations 13 period plus two years statutory tolling). 14 Unlike the length of the limitations period, however, “the accrual date of a § 1983 15 cause of action is a question of federal law that is not resolved by reference to state law.” 16 Wallace, 549 U.S. at 388; Hardin, 490 U.S. at 543-44 (federal law governs when a 17 § 1983 cause of action accrues). “Under the traditional rule of accrual ... the tort cause of 18 action accrues, and the statute of limitation begins to run, when the wrongful act or 19 omission results in damages.” Wallace, 549 U.S. at 391. Put another way, “[u]nder 20 federal law, a claim accrues when the plaintiff knows or has reason to know of the injury 21 which is the basis of the action.” Maldonado, 370 F.3d at 955; TwoRivers v. Lewis, 174 22 F.3d 987, 991 (9th Cir. 1999). 23 In this case, the “wrongful acts” alleged to have caused Plaintiff harm occurred 24 more than 28 years before Plaintiff filed his Complaint in this action, and far outside 25 California’s statute of limitations—even including all presumed periods of tolling 26 provided by statute, or pending the exhaustion of any administrative remedies. Wallace, 27 591 U.S. at 391; see also Maldonado, 370 F.3d at 955; CAL. CODE CIV. PROC. § 335.1 28 (tolling statute of limitations “for a maximum of 2 years” during a prisoner’s 6 3:17-cv-00433-MMA-AGS 1 incarceration); Jones, 393 F.3d at 927; Brown v. Valoff, 422 F.3d 926, 943 (9th Cir. 2005) 2 (finding that “the applicable statute of limitations must be tolled while a prisoner 3 completes the mandatory exhaustion process” Defendant Garcia falsely arrested him, 4 fabricated false and misleading evidence against him, searched his motor home, and 5 seized various items of his personal property, including fishing equipment, household 6 furnishings, a movie camera, guns, bows and arrows, rare hunting knives, a sword, tools, 7 diving and camping equipment, clothing, and other “odds and ends,” following his arrest 8 in November 1988. (Doc. No. 1-1 at 3-7.) Therefore, Plaintiff had “reason to know” of 9 his injury more than two decades ago, yet did not file this case until December 19, 10 2016—well after the limitations period elapsed. See Maldonado, 370 F.3d at 955. 11 Finally, Plaintiff’s claims could be considered timely if, in his Complaint, he 12 alleged facts sufficient to show the limitations period may be equitably tolled. See 13 Cervantes, 5 F.3d at 1276-77. Generally, federal courts also apply the forum state’s law 14 regarding equitable tolling. Fink, 192 F.3d at 914; Bacon v. City of Los Angeles, 843 F.2d 15 372, 374 (9th Cir.1988). Under California law, however, Plaintiff must meet three 16 conditions to equitably toll the statute of limitations: (1) he must have diligently pursued 17 his claim; (2) his situation must be the product of forces beyond his control; and (3) 18 Defendants must not be prejudiced by the application of equitable tolling. See Hull v. 19 Central Pathology Serv. Med. Clinic, 28 Cal. App. 4th 1328, 1335 (Cal. Ct. App. 1994); 20 Addison v. State of California, 21 Cal.3d 313, 316-17 (Cal. 1978); Fink, 192 F.3d at 916. 21 As currently pleaded, however, the Court finds Plaintiff has failed to plead any 22 facts which, if proved, would support any plausible claim for equitable tolling. See 23 Cervantes, 5 F.3d at 1277; Iqbal, 556 U.S. at 679. Accordingly, the Court finds Plaintiff’s 24 claims against Defendant Garcia are barred by the statute of limitations, and his entire 25 Complaint must be dismissed for failing to state a claim upon which section 1983 relief 26 may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii); 1915A(b)(1); Lopez, 203 F.3d at 27 1126-27; Rhodes, 621 F.3d at 1004. 28 /// 7 3:17-cv-00433-MMA-AGS 1 D. 2 Plaintiff also seeks to “reverse his conviction” in San Diego Superior Court Validity of Conviction 3 Criminal Case No. CR101501, and to be “released from custody” as a result of Defendant 4 Garcia’s actions. (Doc. No. 1 at 3-4; Doc. No. 1-2 at 2.) Thus, even if his claims were 5 timely, he cannot proceed pursuant to 42 U.S.C. § 1983, for “[s]uits challenging the 6 validity of [a] prisoner’s continued incarceration lie within ‘the heart of habeas corpus.’” 7 Ramirez v. Galaza, 334 F.3d 850, 856 (9th Cir. 2003), quoting Preiser, 411 U.S. at 489- 8 99 (holding that a writ of habeas corpus is “explicitly and historically designed” to 9 provide a state prisoner with the “exclusive” means to “attack the validity of his 10 confinement” in federal court). “‘[A] § 1983 action is a proper remedy for a state prisoner 11 who is making a constitutional challenge to the conditions of his prison life, but not to the 12 fact or length of his custody.’” Id.; see also Nettles v. Grounds, 830 F.3d 922, 928 (9th 13 Cir. 2016) (en banc) (“[C]laims … which would … result[] in immediate release if 14 successful, f[a]ll within the core of habeas corpus and therefore [must] be brought, if at 15 all, in habeas.”) (citing Preiser, 411 U.S. at 487), cert. denied, 137 S. Ct. 635 (No. 16- 16 6556) (Jan. 9, 2017). 17 E. 18 Finally, while the Court would typically grant Plaintiff leave to amend in light of Leave to Amend 19 his pro se status, it concludes that doing so under the circumstances presented by his 20 pleadings would be futile. See Lopez, 203 F.3d at 1127; Schmier v. U.S. Court of Appeals 21 for the Ninth Circuit, 279 F.3d 817, 824 (9th Cir. 2002) (recognizing “[f]utility of 22 amendment” as a proper basis for dismissal without leave to amend). 23 Amendment is futile because even if Plaintiff could somehow allege facts to show 24 his claims against Defendant Garcia were timely, and further amend his pleading in such 25 a way so as to seek only damages and allege constitutional violations that would not 26 “necessarily” imply the invalidity of his conviction, or “affect the duration of time to be 27 served,” he still could not proceed pursuant to 42 U.S.C. § 1983 because previous 28 attempts at invalidating his conviction have all proven unavailing. See Nettles, 830 F.3d 8 3:17-cv-00433-MMA-AGS 1 at 928-29 (noting that plaintiff may not bring a § 1983 action that “‘necessarily require[s] 2 [him] to prove the unlawfulness of his conviction’” unless he can “first … prove that the 3 conviction … was eliminated, including ‘by a federal court’s issuance of a writ of habeas 4 corpus.’”) (quoting Heck v. Humphrey, 512 U.S. 477, 486-87 (1994)). 5 A court may take judicial notice of its own records, see Molus v. Swan, Civil Case 6 No. 3:05-cv-00452–MMA-WMc, 2009 WL 160937, *2 (S.D. Cal. Jan. 22, 2009) (citing 7 United States v. Author Services, 804 F.2d 1520, 1523 (9th Cir. 1986)); Gerritsen v. 8 Warner Bros. Entm’t Inc., 112 F. Supp. 3d 1011, 1034 (C.D. Cal. 2015), and “‘may take 9 notice of proceedings in other courts, both within and without the federal judicial system, 10 if those proceedings have a direct relation to matters at issue.’” Bias v. Moynihan, 508 11 F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 12 n.2 (9th Cir. 2002)); see also United States ex rel. Robinson Rancheria Citizens Council 13 v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992). 14 Thus, the Court takes judicial notice of Adams v. Evans, et al., Civil Case No. 15 3:09-cv-01123-BEN-RBB (S. D. Cal. 2009), a habeas corpus petition filed by Plaintiff 16 pursuant to 28 U.S.C. § 2254 in 2009, and seeking to challenge the constitutional validity 17 of the same state court conviction at issue in this case: San Diego Superior Court Case 18 No. CR101501. This petition too, filed approximately 20 years after Plaintiff was 19 convicted, was dismissed as untimely. See id. Doc. Nos. 1, 12, 13. The Court also takes 20 judicial notice of docket proceedings before the California Court of Appeals, District 4, 21 Div.1, in In re Ezra John Adams, D053086, in which Plaintiff filed a state habeas petition 22 challenging his conviction in CR101501. This petition too was denied. See 23 24 &doc_no=D053086 (last visited June 21, 2017). 25 Therefore, because these collateral proceedings show Plaintiff cannot amend his 26 pleading in this case to allege the additional facts required to show either that his claims 27 are timely, or that the underlying conviction which forms the basis of his § 1983 suit has 28 already been invalidated, the Court finds amendment would be futile. See Lopez, 203 9 3:17-cv-00433-MMA-AGS 1 F.3d at 1127; Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (noting that leave 2 to amend is not required if it is “absolutely clear that the deficiencies of the complaint 3 could not be cured by amendment.”) (internal citations omitted). 4 III. Conclusion and Order 5 For all the reasons discussed, the Court: 6 1) GRANTS Plaintiff’s Motion to Proceed IFP (Doc. No. 9); 7 2) DIRECTS the Secretary of the CDCR, or his designee, to collect from 8 Plaintiff’s prison trust account the $350 filing fee owed in this case by garnishing 9 monthly payments from his account in an amount equal to twenty percent (20%) of the 10 preceding month’s income and forwarding those payments to the Clerk of the Court each 11 time the amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL 12 PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER 13 ASSIGNED TO THIS ACTION; 14 15 16 3) DIRECTS the Clerk of the Court to serve a copy of this Order on Scott Kernan, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001; 4) DISMISSES this civil action without leave to amend based on Plaintiff’s 17 failure to state a claim upon which relief can be granted and pursuant to 28 U.S.C. 18 §§ 1915(e)(2) and 1915A(b)(1); and 19 5) CERTIFIES that an IFP appeal from this Order would be not taken in good 20 faith pursuant to 28 U.S.C. § 1915(a)(3). See Coppedge v. United States, 369 U.S. 438, 21 445 (1962); Gardner v. Pogue, 558 F.2d 548, 550 (9th Cir. 1977) (indigent appellant is 22 permitted to proceed IFP on appeal only if appeal would not be frivolous). 23 The Clerk of Court is instructed to enter judgment accordingly and close the case. 24 IT IS SO ORDERED. 25 26 DATE: June 23, 2017 _______________________________________ HON. MICHAEL M. ANELLO United States District Judge 27 28 10 3:17-cv-00433-MMA-AGS

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