Opinion
No. CIV S-07-498 JAM KJM P.
September 10, 2008
ORDER AND FINDINGS RECOMMENDATIONS
Plaintiff is a state prison inmate proceeding pro se with a civil rights action under 42 U.S.C. § 1983. Defendants Caro, Lockhart and Campbell have filed motions to dismiss for failure to state a claim and to strike plaintiff's prayer for punitive damages. Plaintiff has opposed the motions.
Plaintiff has also filed a request that the court direct service on defendants Reyes, Farmer and Sullivan.
In his first amended complaint, plaintiff alleges that on March 30, 2005, defendant Caro took plaintiff's property for inventory before plaintiff was put in administrative segregation and told plaintiff that he had confiscated some alleged pornography and string. When plaintiff was released from segregation, he realized that some of his property was missing and had not been included on the inventory form. Amended Complaint (Am. Compl.) ¶¶ 20-21. The missing property included some crime scene photographs; although some of the photographs were returned to plaintiff, twenty-nine have not been recovered. Id. ¶ 23. There are no duplicates of the missing photographs. Id. ¶ 24. Plaintiff had hired a forensic laboratory to review materials relating to his criminal conviction, including the missing photographs. Id. Defendant Campbell, the Warden, knew or should have known that his property was not properly inventoried. Id. ¶ 9.
In July 2005, someone attached a threatening note to a grievance plaintiff had filed and a counseling chrono was issued against plaintiff. Id. ¶¶ 25-26. Plaintiff asked that all references to the note, which he says he did not write, be expunged from his central file. Defendant Campbell assigned defendant Lockhart to investigate the matter; defendant Lockhart concluded that plaintiff could have been the author. Id. ¶ 28. Plaintiff was denied parole in February 2006 and his next hearing is set in five years. Id. ¶ 29.
Plaintiff alleges a violation of his First Amendment right of access to the courts, the California tort of conversion, and violation of his right to due process.
I. Standards For Motion To Dismiss Under Fed.R.Civ.P. 12(b)(6)
II. Denial Of Access To The Courts
Erickson v. Pardus___ U.S. ___127 S.Ct. 2197 Scheuer v. Rhodes416 U.S. 232236Bell Atlantic Corp. v. Twombly___ U.S. ___127 S.Ct. 19551965Erickson 127 S.Ct. at 2200See Hishon v. King Spalding467 U.S. 6973
Plaintiff says he is seeking an injunction "to improve said access or to require said access" and so need not plead actual injury. Opposition to Motion to Dismiss (Opp'n) (Docket No. 25) at 2. He also argues that a delay in the ability to pursue his claims is a sufficient allegation of injury.
A. Actual Injury
An inmate has a constitutionally protected right of meaningful access to the courts. Bounds v. Smith, 430 U.S. 817, 820-21 (1977). However, "[v]arious resources, documents, and supplies merely provide the instruments for reasonable access, and are not protected in and of themselves." Ortloff v. United States, 335 F.3d 652, 656 (7th Cir. 2003).
Ortloff is disagreed with on other grounds in Bramwell v. U.S. Bureau of Prisons, 348 F.3d 804 (9th Cir. 2003).
A prisoner cannot make conclusory declarations of injury, but instead must demonstrate that a non-frivolous legal claim has been frustrated or impeded. To establish actual injury an inmate "might show, for example, that a complaint he prepared was dismissed for failure to satisfy some technical requirement . . . [o]r that he suffered arguably actionable harm that he wished to bring before the courts, but was so stymied . . . that he was unable even to file a complaint." Lewis v. Casey, 518 U.S. 343, 351 (1996). If the underlying action is frivolous, a plaintiff cannot make the necessary showing of actual injury. See Christopher v. Harbury, 536 U.S. 403, 415 (2002).
Plaintiff relies on three cases to argue that he need not demonstrate actual injury because he is seeking injunctive relief. He glosses over the fact that he is also seeking damages for the confiscation of his crime scene photographs, including a request to be reimbursed for the costs of counsel and the forensic expert he hired to evaluate the evidence, and the possibility of pursuing a habeas petition, as well as punitive damages. Am. Compl. at 15. In addition, the authority upon which he relies predates Lewis and in any event is distinguishable.
In Diamontiney v. Borg, 918 F.2d 793, 795-96 (9th Cir. 1990), plaintiff secured a preliminary injunction directing prison officials to accept legal mail in plaintiff's preferred surname, which caused legal mail relating to pending litigation to be returned to the senders. In Taylor v. List, 880 F.2d 1040, 1047 (9th Cir. 1989), the challenged restrictions interfered with plaintiff's ability to defend himself in a pending criminal case. Finally, in Canell v. Bradshaw, 840 F.Supp. 1382, 1391 (D. Or. 1993), aff'd, 97 F.3d 1458 (9th Cir. 1996), the court suggested that plaintiff need not allege actual injury because he was challenging the adequacy of the law library, but then recognized he had in fact shown injury by claiming he missed a deadline for responding to a motion for summary judgment. Compare Marshall v. Knight, 445 F.3d 965, 969 (7th Cir. 2006) (prejudice adequately pleaded when inmate said inadequacies of law library hampered his research and caused him to lose custody credits). Here, in contrast, petitioner has alleged only the frustration of a mere potential of litigation.
This holding may have been undermined by Kane v. Garcia Espitia, 546 U.S. 9 (2005).
Specifically, plaintiff suggests a delay in the ability to pursue a claim of factual innocence or a habeas petition is sufficient injury. Opp'n (docket no. 25) at 2-3. However, in Cody v. Weber, 256 F.3d 764 (8th Cir. 2001), the plaintiff claimed he was denied access to the court when his personal computer and the material stored on disks were taken away. Although he was given two weeks to print the material relating to current litigation, plaintiff alleged he was being deprived of "`the only copies of documents he believes can set him free from the life sentence he is presently serving,'" but failed to allege that he had a basis for post-conviction relief. Id. at 769-70. The Eighth Circuit found his vague allegation that the material would "set him free" did not create a genuine issue of fact to defeat summary judgment. Id. at 770. In this case as well, plaintiff's vague claim that the confiscation of the pictures somehow hampered a forensic analysis that might or might not show his innocence does not state a claim.
B. Defendant Campbell's Role
Defendants argue the complaint should be dismissed as to defendant Campbell because her alleged role is limited to "the documentation of the theft." Def't Campbell's Mem. P. A. In Supp. Mot. To Dismiss (Docket No. 23-2) (Campbell MTD) at 9.
A plaintiff must connect named defendants clearly with the claimed denial of his rights. Farmer v. Brennan, 511 U.S. 825, 837, 843 (1994) (official's liability for deliberate indifference to assault requires that official know of and disregard an "excessive risk"); Taylor v. List, 880 F.2d at 1045 ("liability under section 1983 arises only upon a showing of personal participation by the defendant (citation omitted) . . . [t]here is no respondeat superior liability under section 1983.");Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978) (discussing "requisite causal connection" in section 1983 cases between named defendant and claimed injury). Plaintiff's allegation that defendant Campbell knew or should have known the theft of the photos was not adequately documented does not show a sufficient connection between Campbell and the claimed injury, denial of access to the courts. Plaintiff has not alleged how this knowledge contributed to his alleged inability to pursue his habeas action. See Am. Compl. ¶¶ 9, 28.
Plaintiff will be given an opportunity to amend his denial of access to courts claim as to defendant Caro only. The court cannot say that plaintiff will not be able to plead actual injury from the confiscation of the photos.
II. Conversion
Defendants argue that plaintiff has not pleaded his compliance with California's Tort Claims Act and so cannot maintain his pendent state claim for conversion. Campbell MTD at 6-7; Def'ts' Caro's Lockhart's Mem. P. A. in Supp. Mot. to Dismiss (Docket No. 20) (Def'ts' MTD) at 6-7.
Under California's Tort Claims Act, Cal. Gov't Code §§ 900 et seq., a suit for money or damages may not be brought against a public employee unless a claim has been presented to and rejected by the public entity. Cal. Gov't Code § 945.4. Accordingly, a condition precedent to the state-law claims against the Department of Corrections and Rehabilitation and its employees is a timely claim to the Board of Control. State of California v. Superior Court (Bodde), 32 Cal. 4th 1234, 1240 (2004);Karim-Panahi v. Los Angeles Police Department, 839 F.2d 621, 627 (9th Cir. 1988).
Plaintiff argues that the requirement is excused because he is seeking the return of his property. Opp'n (Docket No. 25) at 4-5; Opp'n to Campbell MTD (Docket No. 27) at 3. California cases have held that
a claim for the recovery of specific property is not one for `money or damages' under the Government Claims Act. Even if cash taken from the arrestee was no longer traceable, the initial exemption of the action from the claims statute is not lost simply because the city takes the further wrongful step of disposing of the bailed property.City of Stockton v. Superior Court, 42 Cal.4th 730, 742 (2007) (internal citation quotation omitted); see also Escamilla v. California Department of Corrections and Rehabilitation, 141 Cal.App.4th 498 (2006) (inmate's habeas petition treated as mandamus for return of property seized by guard or for the value of the property); Long v. City of Los Angeles, 68 Cal.App.4th 782, 787 (1998) (no need to file claim before filing action for injunctive relief seeking return of birds seized by city or their value).
The California Supreme Court urges that this label be used for the Act, "to avoid the confusion engendered by the informal short title `Tort Claims Act.'" Stockton, 42 Cal.4th at 734.
Through his request for injunctive relief, plaintiff is seeking return of the twenty-nine photographs or their replacement value. Am. Compl. ¶¶ 55(d), 57(a). He also alleges, however, that "as a proximate result of defendants' actions, plaintiff has suffered and continues to suffer general damages in the resulting inability to investigate plaintiff's criminal case and that he will continue to suffer such damages in the future." Id. ¶ 41. If the photos cannot be returned, he seeks reimbursement for "the costs of the forensic expert and counsel for their inability to prosecute the habeas corpus petition" and punitive damages of $15,000 from each defendant. Id. ¶¶ 57(b) (d).
To make the determination whether a government claim is required, California and federal courts analyze the various claims for relief in the complaint. Gatto v. County of Sonoma, 98 Cal.App.4th 744, 761 (2002); Independent Housing Services of San Francisco v. Fillmore Center Associates, 840 F.Supp. 1328, 1358 (N.D. Cal. 1993). As the Gatto court explained:
[W]here a claimant seeks both damages and nonmonetary relief from a public entity in the same action, the applicability of the claim filing requirement turns on whether the damages are ancillary to the equitable relief sought, in which case the claim filing requirement is inapplicable, or the reverse is true, in which case the filing requirement applies.
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The claims filing requirement remains applicable to actions in which money damages are not incidental or ancillary to any specific relief that is also sought but the primary purpose of the action.Gatto, 98 Cal.App.4th at 761, 762. In Gatto, the court found the Act applied when Gatto challenged a county fair dress code on his own behalf, without seeking to vindicate the rights of anyone but himself; when he did file a claim, he informed the county he intended to file a civil action seeking not just injunctive relief but also attorney's fees and punitive damages; and when damages were the first thing mentioned in the title of his complaint and his prayer for relief. In contrast, in Independent Housing Services, 840 F.Supp. at 1358, the court found that compliance with the claim requirement was not necessary when the suit sought declaratory and injunctive relief on the question of handicap access to various buildings, damages and attorney's fees because the "request for an injunction . . . is of great weight and not just ancillary to the request for damages . . . [and] the potential damages are small and inconsequential compared to the effect of the declarations it seeks."
Although plaintiff seeks injunctive and declaratory relief, he seeks to vindicate only his own rights. While his initial prayers are for injunctive and declaratory relief, he seeks monetary sanctions beyond the replacement cost of the photographs if they cannot be returned or replaced. Moreover, he seeks punitive damages of $15,000 per defendant even if he recovers the property he alleges was taken; these damages cannot be deemed inconsequential to "the effect of the declarations [he] seeks." Compliance with the Claims Act was required.
Plaintiff has submitted copies of documents that show, he asserts, that he did file a claim with the Claims Board. Opp'n (Docket No. 25), Ex. A. Although plaintiff has not provided a copy of his initial claim, in his objection to the rejection of the claim, he describes the progress of administrative exhaustion of the incident underlying his claim. Id., Ex. A1. It began with a staff misconduct complaint on July 25, 2005; this is the beginning of the investigation of the authorship of the threatening note. Am. Compl. ¶¶ 25-28. Moreover, in support of his challenge, plaintiff mentions the invoice for services he received from his questioned documents examiner. Opp'n (Docket No. 25), Ex. A1 at 1. Plaintiff's attempt to argue that this objection satisfies the requirement that he file a claim for the confiscation of his photographs is specious.
III. Investigation Of The Threatening Note
Defendants Caro and Lockhart argue plaintiff has not stated a claim against defendant Lockhart because there is no constitutional right to be exonerated through the grievance process and there is no connection between defendants Lockhart and Campbell and any injury. Def'ts' MTD at 7-8. Defendant Campbell argues plaintiff has not stated a claim against her because the allegations against her flow from her position as warden rather than as participant in any constitutional violation. Campbell MTD at 8-9. Finally, all defendants argue that the gravamen of plaintiff's complaint is the false allegation that he threatened the parole board and that defendants Lockhart and Campbell acted or failed to act after that violation. Def'ts' MTD at 8-9; Campbell MTD at 9-10.
Plaintiff counters that defendant Campbell did not afford him due process in accepting defendant Lockhart's conclusion about the authorship of the note and that defendant Lockhart was obligated competently to investigate the authorship of the note. Opp'n (Docket No. 25) at 5-6; Opp'n (Docket No. 27) at 4.
An inmate has neither a First nor a Fourteenth Amendment right "in having . . . [a] grievance resolved to his satisfaction."Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005) (no due process right); Shell v. Brzezniak, 365 F.Supp. 2d 362, 369-70, 379 (W.D.N.Y. 2005) (no First nor Fourteenth Amendment right to have grievance processed or investigated in any particular manner); Torres v. Mazzuca, 246 F.Supp.2d 334, 342 (S.D.N.Y. 2003) (no due process right to "thorough investigation to [inmate's] satisfaction). Accordingly, because plaintiff alleges that defendant Campbell ratified defendant Lockhart's inadequate investigation, this portion of the complaint fails to state a claim.
IV. Qualified Immunity
Defendants allege they are entitled to qualified immunity for the alleged constitutional violations, basing their claim largely on their argument that the complaint does not show a violation of plaintiff's constitutional rights. Because the court has determined there is only one potentially viable claim, but that the claim must be amended if it is to proceed, it declines to address the question of qualified immunity.
V. Punitive Damages
Defendants argue that because punitive damages are available only when an official's conduct is shown to be motivated by evil intent or reckless motive, plaintiff's claim for punitive damages should be stricken because his allegations do not show that the defendants acted in so culpable a fashion. Def'ts' MTD at 10; Campbell MTD at 11. Although they cite cases that discuss the standard necessary to prove entitlement for punitive damages, they have provided the court with no authority suggesting there is any heightened pleading standard for such a claim. See Clark v. Allstate Ins. Co., 106 F.Supp.2d 1016, 1018 (S.D. Cal. 2000). However, if the complaint is dismissed as recommended here, the request to strike the punitive damages prayer is moot.
VI. Plaintiff's Motion For Service Of Process (Docket No. 30)
Plaintiff has filed a motion for reconsideration of this court's original determination not to direct service on the additional defendants. In light of the pendency of the motion for reconsideration (Docket No. 17), the motion for service of process will be denied as duplicative.
IT IS THEREFORE ORDERED that plaintiff's motion for service on the other defendants (docket no. 30) is denied in light of the pending motion for reconsideration.
IT IS HEREBY RECOMMENDED that defendants' motions to dismiss (docket nos. 20 23) be granted; that plaintiff be permitted to file a second amended complaint as to his claim of denial of access to the courts but only as to defendant Caro; and that defendant Caro not be required to respond to the seconded amended complaint until it has been screened by the court.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within ten days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).