Childress, Jr. v. Palmer

Filing 12

ORDER Denying Motion for Relief From Judgment [ECF. No. 9 ]. Signed by Judge Cathy Ann Bencivengo on 10/19/2018. (All non-registered users served via U.S. Mail Service)(anh)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ROBERT LEE CHILDRESS, Jr.,
BOP #25851-039,

Case No.: 3:18-cv-00514-CAB-BLM
ORDER DENYING MOTION FOR
RELIEF FROM JUDGMENT

Plaintiff,

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vs.

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[ECF No. 9]

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KRAIG PALMER, J. KYLE
SCROGGINS, Jr.; UNKNOWN
ESCONDIDO POLICE OFFICERS,
Defendants.

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Robert Lee Childress, Jr. (“Plaintiff”), is a pre-trial detainee currently housed in the

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Otay Mesa Detention Center located in San Diego, California, and is proceeding pro se in

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this civil action.

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I.

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Procedural History
On September 7, 2018, the Court granted in part, and denied in part, Plaintiff’s

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“Motion to Lift Stay, Correct Caption and Request for U.S. Marshal Service.” (ECF No.

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6.) In addition, the Court dismissed Plaintiff’s entire First Amended Complaint (“FAC”)

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for failing to state a claim and “without further leave to amend.” (Id. at 7.) The Court

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also certified that an “IFP appeal would not be taken in good faith pursuant to 28 U.S.C.
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§ 1915(a)(3).” (Id. at 8.) On September 26, 2018, Plaintiff filed a “Motion for Relief

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from Judgment; Rule 60(b).” (ECF No. 9.)

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II.

Plaintiff’s Motion pursuant to FED. R. CIV. P. 60(b)

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A.

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

Standard of Review

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

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after the entry of the judgment or order or the date of the proceeding.” FED. R. CIV. P.

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60(c)(1).

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Rule 60(b) provides for reconsideration where one or more of the following is

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shown: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered

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evidence which by due diligence could not have been discovered before the court's

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decision; (3) fraud by the adverse party; (4) the judgment is void; (5) the judgment has

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been satisfied; (6) any other reason justifying relief. FED. R. CIV. P. 60(b); School Dist. 1J

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v. ACandS Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).

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“Although the application of Rule 60(b) is committed to the discretion of the

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district courts . . ., as a general matter, Rule 60(b) is remedial in nature and must be

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liberally applied.” TCI Group Life Ins. Plan v. Knoebber, 244 F.3d 691, 695-96 (9th Cir.

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2001) (internal quotation marks and ellipsis omitted). Nevertheless, Rule 60(b) provides

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for extraordinary relief and may be invoked only upon a showing of “exceptional

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circumstances.” Engleson v. Burlington N.R. Co., 972 F.2d 1038, 1044 (9th Cir. 1994).
Plaintiff’s Motion

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B.

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First, Plaintiff challenges the findings of this Court as it pertains to his Fourth

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Amendment claims. In his FAC, Plaintiff alleged that he “exited a property in

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Escondido, CA where he was a guest to be arrested as agreed.” (FAC at 7.) Plaintiff

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further stated that “Defendant Palmer expressed he didn’t have a search warrant and

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wouldn’t enter the home.” (Id.) Plaintiff admitted that he was “not welcomed there.”

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(Id.)

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Plaintiff further alleged that “Defendants Palmer, Scroggins and unknown

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Escondido Police Officers stormed the residence over Plaintiff’s objection without a

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warrant to search, nothing was seized that could impugn a conviction.” (Id.)

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The Court found that Plaintiff admitted that he was not “welcomed” at this

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property and therefore, was neither a resident nor a houseguest at the property in

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question. (Sept. 7, 2018 Order at 7.) The Supreme Court has defined a houseguest as

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someone who is in the home “with the permission of his host, who is willing to share his

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house and privacy with his guest.” Minnesota v. Olson, 495 U.S. 91, 99 (1990).

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Therefore, because Plaintiff freely admitted that he did not have permission to occupy the

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residence, he had “no reasonable expectation of privacy” necessary to state a Fourth

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Amendment claim. (Sept. 7, 2018 Order at 7.)

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In his current Motion, Plaintiff argues that he was, in fact, a “guest” of his

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“girlfriend’s residence” for a “little over six months.” (Pl.’s Mot. at 8.) In addition,

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while Plaintiff admits that he alleged that he was “not welcomed there,” but he argues

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that this was a “clerical error.” (Id. at 10.) Instead, Plaintiff argues that he meant to

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allege that he was “not welcome there anymore,” but prior to his arrest and the search he

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was an invited guest. (Id.) (emphasis added.)

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Plaintiff lacks standing to bring a Fourth Amendment claim. “Fourth Amendment

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rights are personal rights which, like some other constitutional rights, may not be

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vicariously asserted.” Alderman v. United States, 394 U.S. 165, 174 (1969). In order for

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Plaintiff to have standing to assert a Fourth Amendment claim he must allege that it “was

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his person, house, paper, or effect searched.” Lyall v. City of Los Angeles, 807 F.3d

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1178, 1186 (9th Cir. 2015). However, Plaintiff alleges his “girlfriend was very upset that

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her home was searched, ransacked and her belongings rummaged through.” (Pl.’s Mot.

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at 10.) (emphasis added.) Plaintiff’s allegations make clear that the property searched

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belonged to his girlfriend, not to him.

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Thus, the Court finds that Plaintiff lacks standing to bring a Fourth Amendment
claim based on the purported Fourth Amendment search of his girlfriend’s home.
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In addition, Plaintiff alleges that the Court erred in dismissing his Fifth

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Amendment due process claim against Defendant Palmer. (See Pl.’s Mot. at 12.) In the

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Court’s September 7, 2018 Order, the Court found that Plaintiff failed to state a claim

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because there was “no rational to imply a Bivens action based on the claims presented by

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Plaintiff.” (Sept. 7, 2018 Order, ECF No. 6, at 6.) Plaintiff now seeks to avoid this

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conclusion by arguing in his Motion that he can, in fact, bring this Fifth Amendment

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claim under 42 U.S.C. § 1983 because Defendant Palmer is a Federal Agent but also

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allegedly “a state law enforcement officer with the San Diego Sheriff’s Department as a

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Detective with the Regional Auto Theft Task Force.” (Pl.’s Mot. at 12.)

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A court “‘may take notice of proceedings in other courts, both within and without

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the federal judicial system, if those proceedings have a direct relation to matters at

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issue.’” Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v.

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Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)). Here, the Court takes judicial

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notice that Plaintiff is currently facing federal charges in USA v. Childress, S.D. Crim.

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Case No. 3:16-cr-02556-GPC. A review of this matter clearly indicates that the property

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Plaintiff claims he was deprived of causing the alleged Fifth Amendment violation is the

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same property that is the subject of the ongoing federal criminal proceeding.

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A complaint must “contain sufficient factual matter, accepted as true, to state a

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claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

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(internal quotation marks omitted). “Determining whether a complaint states a plausible

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claim for relief [is] ... a context-specific task that requires the reviewing court to draw on

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its judicial experience and common sense.” Id. The “mere possibility of misconduct” or

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“unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting

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this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969

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(9th Cir. 2009).

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Here, Plaintiff’s attempts to reframe a Bivens claim into a § 1983 claim by arguing

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that Defendant Palmer was not acting as a federal agent is not plausible. First, as stated

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above, Plaintiff is facing federal criminal charges based on the same set of facts found in
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his FAC. Second, Plaintiff does not allege any facts in his FAC to indicate that there was

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any involvement by the San Diego County Sheriff’s Department with respect to the

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claims that he is bringing in this matter. All the facts alleged, along with taking judicial

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notice of the criminal proceedings, indicates that the only plausible outcome is a finding

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that Defendant Palmer was acting as a federal agent. For all these reasons, the Court does

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not find that Plaintiff has alleged plausible facts to find that Defendant Palmer was acting

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“under color of state law” and thus, he cannot bring a § 1983 claim against this

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Defendant.

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Plaintiff does not seek reconsideration based on mistake, inadvertence, surprise or

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neglect. He does not present any newly discovered evidence, point to fraud, argue that the

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Court’s September 7, 2018 Order is void, that any judgment has been satisfied, or point to

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any “other reason” that might justify reconsideration. See FED. R. CIV. P. 60(b)(1)-(6).

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III.

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Conclusion and Order
For these reasons, the Court DENIES Plaintiff’s Motion for Relief from Judgment

(ECF No. 9).
The Clerk of Court shall close the file.
Dated: October 19, 2018

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