Leonard Ward v. California Department of Corrections And Rehabilitation et al

NOTICE OF MOTION AND MOTION to Dismiss Plaintiff's Complaint; Memorandum of Points and Authorities in Support

C.D. Cal.January 20, 2017

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 KATHLEEN A. KENEALY Acting Attorney General of California GIAM M. NGUYEN Supervising Deputy Attorney General JILL VANDER BORGHT Deputy Attorney General State Bar No. 240004 300 South Spring Street, Suite 1702 Los Angeles, CA 90013 Telephone: (213) 897-0188 Fax: (213) 897-7604 E-mail: Jill.VanderBorght@doj.ca.gov Attorneys for Defendants R. Madden and California Department of Corrections and Rehabilitation IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA EASTERN DIVISION LEONARD WARD, Plaintiff, v. CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, et al., Defendants. CV16-01582 BRO(SPx) DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT Date: March 6, 2017 Time: 1:30 p.m. Courtroom: 7C Judge: Hon. Beverly Reid O’Connell Action Filed: July 20, 2016 TO THE COURT AND COUNSEL OF RECORD FOR PLAINTIFF LEONARD WARD: PLEASE TAKE NOTICE that on March 6, 2017, at 1:30 p.m., in Courtroom 7C of the above-captioned Court located at 350 West 1st Street, Los Angeles, California 90012, Defendants R. Madden and California Department of Corrections and Rehabilitation, will move this Court for an order dismissing the Complaint. Case 5:16-cv-01582-BRO-SP Document 19 Filed 01/20/17 Page 1 of 13 Page ID #:118 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 The Motion to Dismiss will be made under Federal Rule of Civil Procedure 12(b)(6) on the grounds that the Complaint fails to state a claim against Defendants upon which relief can be granted. And, Plaintiff’s pendent state law claims are subject to dismissal for failure to state a claim under California law. This Motion is based on this Notice and Motion, the accompanying Memorandum of Points and Authorities, the pleadings on file in this action, and such additional argument as may be presented. This Motion is made after counsel attempted to meet and confer in accord with Local Rule 7-3. Dated: January 20, 2017 Respectfully submitted, KATHLEEN A. KENEALY Acting Attorney General of California GIAM M. NGUYEN Supervising Deputy Attorney General /s/ Jill Vander Borght JILL VANDER BORGHT Deputy Attorney General Attorneys for Defendants California Department of Corrections and Rehabilitation and R. Madden January 20, 2017 Respectfully submitted, KATHLEEN A. KENEALY Acting Attorney General of California GIAM M. NGUYEN Supervising Deputy Attorney General JILL VANDER BORGHT Deputy Attorney General Attorneys for Defendants R. Madden and California Department of Corrections and Rehabilitation LA2016503097 /62258403.doc Case 5:16-cv-01582-BRO-SP Document 19 Filed 01/20/17 Page 2 of 13 Page ID #:119 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 INTRODUCTION Plaintiff Leonard Ward is a former inmate of the California Department of Corrections and Rehabilitation (“CDCR”). ECF No. 1, ¶ 1. Plaintiff sues Defendants CDCR and Warden R. Madden under 42 U.S.C. §§ 1983 and 1985, and 28 U.S.C. §§ 2201-02, and California state law based on his alleged over-detention in state prison. Specifically, Plaintiff alleges Defendants unlawfully incarcerated him in violation of the First, Fourth, Fifth, Eighth, and Fourteenth Amendments to the United States’ Constitution. Plaintiff’s state law claims are predicated on allegations of false imprisonment, negligence, assault and battery, and intentional infliction of emotional distress. However, Plaintiff’s federal claims fail for three reasons: (1) those brought pursuant to 42 U.S.C. § 1983 are subject to dismissal, without leave to amend, because CDCR is not a “person” under § 1983, and there are no facts alleged which establish the individual liability of Defendant Madden; (2) there are no facts pled which establish a 42 U.S.C. § 1985 conspiracy; and (3) Plaintiff is not entitled to declaratory relief in this instance. Plaintiff’s state law claims also fail because: (1) CDCR is immune from suit unless liability is expressly provided by California statute; (2) the Complaint’s facts do not establish Plaintiff’s injury, nor Defendants’ causation; (3) there are no facts alleged which evidence assault and battery; and (4) Plaintiff cannot plead intentional infliction of emotional distress. SUMMARY OF ALLEGATIONS IN THE COMPLAINT On September 4, 2007, Plaintiff was taken into custody, and on March 24, 2009, he was convicted of extortion and attempted extortion. ECF No. 1, ¶¶ 1, 14. He was erroneously sentenced to life with the possibility of parole, and transferred to CDCR custody on July 31, 2009. Id. On that date, he was credited with 1030 pre- CDCR custody days. Id. at ¶ 1. Case 5:16-cv-01582-BRO-SP Document 19 Filed 01/20/17 Page 3 of 13 Page ID #:120 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 On October 11, 2013 1 , Plaintiff was resentenced to a determinate sentence of eight years for extortion, plus two for a second extortion charge, plus one for attempted extortion. Id. at ¶¶ 1, 16. Plaintiff alleges the eleven-year sentence equates to 4017 days. Id. On the resentence date, Plaintiff had total custody credit of 2580 days 2 . Id. at ¶ 1. Plaintiff “was specifically made eligible under California Penal Code section 667 3 that Plaintiff was entitled to receive a credit for 20% of the actual time spent in prison.” Id. Based on “actual time served, credit for time prior to sentencing and credit for 20% of his actual time spent incarcerated in state prison, Plaintiff would have fully and completely served his entire 11-year sentence on or about June 8, 2014.” Id. In February 2014, “the Federal District Court specifically ordered Defendants to release non-violent second strike felons on parole after serving 50% of their sentence.” Id. at ¶¶ 1, 17. And, Plaintiff was re-evaluated on or about May 18, 2014. Id. at ¶¶ 1, 18. Regardless, Defendants “failed, refused and continued to incarcerate Plaintiff until released without any notice, action or further basis on or about July 21, 2015. Id. Defendants allegedly refused to allow for credit for Penal Code section 667, and claimed Plaintiff was not entitled to good-time credit even though his prison record was exemplary. Id. at ¶ 19. Plaintiff was incarcerated from September 4, 2007 to July 21, 2015 (2877 days) for his eleven-year sentence (4017 days). Id. at ¶ 21. On May 14, 2014, Defendant indicated Plaintiff had credit of 3009 days served. Id. From Plaintiff’s October 2013 resentencing, Defendants had evidence that established Plaintiff’s 1 This October 11, 2013 resentencing date changes at least three times in the Complaint. See ECF No. 1 “October 11, 2013” at p.1:13-14; “October 11, 2011” at p. 6:4-5; and “October 16, 2013” at p. 7:18-19. 2 The Complaint cites to exhibits (ECF No. 1 at p. 2:19-20) that are not attached to the PACER filing, and Defendants are unable to reference. 3 The only reference to credit earning in California Penal Code section 667(c)(5) reads “the total amount of credits awarded pursuant to Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 shall not exceed one-fifth of the total term of imprisonment imposed and shall not accrue until the defendant is physically placed in the state prison.” Case 5:16-cv-01582-BRO-SP Document 19 Filed 01/20/17 Page 4 of 13 Page ID #:121 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 release date. Id. at ¶ 22. However, they “continued to delay acting pursuant to the Penal Code requirements and the Federal Court orders in order to detain Plaintiff under punitive conditions for over a year with the full knowledge that there was no basis justifying this detention.” Id. at ¶ 23. STANDARD ON MOTION TO DISMISS Dismissal is appropriate when the plaintiff fails to state a claim on which relief may be granted. Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556-57, 570 (2007)). A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. The Court need not accept as true conclusory allegations or legal characterizations nor accept unreasonable inferences or unwarranted deductions of fact. Beliveau v. Caras, 873 F. Supp. 1393, 1395-96 (C.D. Cal. 1995). The factual allegations must show a right to relief that is more than mere speculation. Twombly, 550 U.S. 544. I. PLAINTIFF’S FEDERAL CLAIMS FAIL TO STATE A CLAIM. The Complaint brings claims under 42 U.S.C. §§1983 and 1985 and under 28 U.S.C. §§ 2201-02. There are no grounds for federal relief on the facts alleged, and the federal claims should be dismissed. A. CDCR Is Not A Person Subject to Suit Under 42 U.S.C. § 1983. Plaintiff sues CDCR, a state public entity, for monetary relief under 42 U.S.C. § 1983 based on alleged violations of Plaintiff’s federal constitutional rights. ECF No. 1 at ¶¶ 25-38. Pursuant to § 1983: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or Case 5:16-cv-01582-BRO-SP Document 19 Filed 01/20/17 Page 5 of 13 Page ID #:122 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . . 42 U.S.C. § 1983, emphasis added. However, “neither a State nor its officials acting in their official capacities are ‘persons’ under § 1983” when sued for damages. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71, fn.10 (1989); Haack v. California Dep't of Corr. & Rehab., No. CV F 12-0098, 2012 WL 570353, at *4 (E.D. Cal. Feb. 21, 2012) (“CDCR is… an arm of the State of California, CDCR is not subject to section 1983 claims.”). Plaintiff therefore cannot state a claim under § 1983 against CDCR for violating his federal constitutional rights. Accordingly, Plaintiff’s First and Second Causes of Action against Defendant CDCR fail as a matter of law and should be dismissed without leave to amend. B. There Are No Facts Pled Which Would Establish the Personal Liability of Defendant Warden Madden Under 42 U.S.C. § 1983. Plaintiff similarly alleges constitutional violations pursuant to 42 U.S.C. § 1983 against Defendant Madden. However, § 1983 liability requires personal participation by the defendant. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). The requisite deprivation must arise from an affirmative act, participation in another’s affirmative acts, or the failure to perform an act which is legally required. Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988). “[A] plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 677. Causation must be established by showing acts and omissions of each defendant. Leer, 844 F.2d at 633. There must be “a very individualized approach which accounts for the duties, discretion, and means of each defendant.” Id. Sweeping conclusory allegations are insufficient to establish liability. Id. Warden Madden cannot be liable for the acts of Case 5:16-cv-01582-BRO-SP Document 19 Filed 01/20/17 Page 6 of 13 Page ID #:123 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 others, and the Complaint does not contain any allegations that support a constitutional cause of action against Warden Madden. Warden Madden should therefore be dismissed. C. Plaintiff Fails To Plead Facts Of A Conspiracy. A § 1985 “conspiracy occurs when the parties have reached ‘a unity of purpose or a common design and understanding, or a meeting of the minds in an unlawful arrangement.’” Huesties v. Wilcox, 888 F.2d 130 at *2 (9th Cir. 1989) (quoting American Tobacco Co. v. United States, 328 U.S. 781, 809–10 (1946)); see also Mendocino Envtl. Ctr. v. Mendocino Cty., 192 F.3d 1283, 1301 (9th Cir. 1999) (“To establish the defendants’ liability for a conspiracy, a plaintiff must demonstrate the existence of an agreement or ‘meeting of the minds’ to violate constitutional rights.”) (quotation omitted). “To survive a motion to dismiss a conspiracy allegation requires more than a conclusory accusations that Defendant conspired to deprive Plaintiff of his civil rights. In other words, bare allegations that one defendant ‘conspired’ with another are insufficient.” Jones v. Tozzi, No. 1:05- CV-0148 OWW DLB, 2006 WL 1582311, at *10 (E.D. Cal. June 2, 2006) (citing Harris v. Roderick, 126 F.3d 1189, 1195 (9th Cir. 1997); Buckey v. County of Los Angeles, 968 F.2d 791, 794 (9th Cir. 1992); Woodrum v. Woodward County, 866 F.2d 1121, 1126–27 (9th Cir. 1989)). The Complaint’s allegations of conspiracy are entirely conclusory. For example, “Defendants engaged in this conspiracy to obstruct justice and acted with specific intent to interfere with Plaintiff’s rights under federal civil rights statutes and other bases for redress.” ECF No. 1 at ¶ 70. There is no indication of what the conspiracy was, how the named Defendants conducted it, nor any existence of an agreement or meeting of the minds to violate this Plaintiff’s constitutional rights. As such, Plaintiff’s seventh cause of action under 42 U.S.C. § 1985 should be dismissed. / / / Case 5:16-cv-01582-BRO-SP Document 19 Filed 01/20/17 Page 7 of 13 Page ID #:124 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 D. Plaintiff Is Not Entitled to Declaratory Relief. The third claim for declaratory relief under 28 U.S.C. §§ 2201 and 2202 should similarly be dismissed. The Declaratory Judgment Act, 28 U.S.C. § 2201 is a procedural device for adjudicating existing rights: it does not create rights. Vaden v. Discover Bank, 556 U.S. 49, 70, n.19 (2009). Thus, declaratory relief is available only if the court has jurisdiction from some other source. Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671-73 (1950) (“The plaintiff's claim itself must present a federal question.”) Because there is no operative federal claim for the reasons laid out above, Plaintiff is not entitled to declaratory relief. See also Powder River Basin Res. Council v. Babbitt, 54 F.3d 1477, 1483 (10th Cir. 1995) (holding that the Eleventh Amendment, as well as the public policy, prevent federal courts from granting a declaratory judgment in the absence of an ongoing violation of federal law.) Additionally, a claim for injunctive or declaratory relief becomes moot once an inmate is released from custody and is no longer subject to the conditions or policies he challenged. Rios v. Gipson, 599 Fed.App’x. 294, 295 (9th Cir. 2015); Alvarez v. Hill, 667 F.3d 1061, 1063-64 (9th Cir. 2012). Since Plaintiff has been discharged from CDCR, his request for declaratory relief in his third claim is moot and should be dismissed. II. PLAINTIFF’S STATE LAW CLAIMS ARE SUBJECT TO DISMISSAL. The Complaint alleges state-law claims for false imprisonment, negligence, assault and battery, and intentional infliction of emotional distress. ECF No. 1 at ¶¶ 48-67. The Complaint fails to allege facts which would state any of these claims, and they should be dismissed. / / / / / / / / / / / / Case 5:16-cv-01582-BRO-SP Document 19 Filed 01/20/17 Page 8 of 13 Page ID #:125 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 A. Defendant CDCR Is Immune From Suit Under California Statutory Law. Plaintiff names CDCR 4 as a Defendant in his state-law claims, seeking to hold the agency liable for false imprisonment, negligence, assault and battery, and intentional infliction of emotional distress. See ECF No. 1, Third, Fourth, Fifth and Sixth Claims for Relief. The state-law claims against Defendant CDCR fail, however, because Plaintiff does not identify a statute under which this Defendant is liable for any misconduct. Under the California Tort Claims Act (“CTCA” [Cal. Gov’t Code sections 810-996.6]) both the State and CDCR are entitled to immunity from all claims “[e]xcept as otherwise provided by statute.” Jiles v. City of Pittsburg, No. C 12- 3795 MEJ, 2012 WL 6096580, at *7 (N.D. Cal. Dec. 7, 2012) (citing Cal. Gov’t Code § 815(a)); see also Cochran v. Herzog Engraving Co. 155 Cal. App. 3d 405, 409 (1984) (“sovereign immunity is the rule in California; governmental liability is limited to exceptions specifically set forth by statute”). “As such, a claim of direct liability against a public entity for negligence must be based on a specific statute creating a duty of care . . . .” Jiles v. City of Pittsburg, 2012 WL 6096580, at *7. In the Complaint, other than to cite to various California Penal Code sections (ECF No. 1 at ¶ 16), Plaintiff cites to no specific California statute that permits him to sue CDCR for his four state common law claims. Thus, Plaintiff’s Third, Fourth, Fifth and Sixth claims against CDCR should be dismissed. B. The State-Law Claims Should Be Dismissed For Failure To State Facts Constituting A Violation of Law. As a matter of law, the Complaint’s facts do not clearly state a claim. Plaintiff pleads that he was sentenced to serve eleven years or 4017 days in custody. ECF 4 Defendant Madden is sued in his individual capacity. ECF No. 1 at ¶ 10. However, because there are no facts establishing his individual wrongdoing, he must be dismissed. To the extent that he is sued in a representative capacity, these same arguments apply to him. Case 5:16-cv-01582-BRO-SP Document 19 Filed 01/20/17 Page 9 of 13 Page ID #:126 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 No. 1 at ¶ 1. He was incarcerated on September 4, 2007 and was released on July 21, 2015, or 2877 days later. Id. at ¶ 21. Even assuming the truth of Plaintiff’s allegations of twenty percent credit earning while in state prison, Plaintiff’s sentence logically required him to serve eighty percent of 4017 days or at least 3213.6 days. Therefore, on the face of the facts alleged, Plaintiff has suffered no plain injury. Further, Plaintiff alludes to a February 2014 federal court order requiring CDCR to evaluate and provide for the release of second-strike felons, like Plaintiff. ECF No. 1 at ¶ 17. This allegation does not establish injury because Plaintiff alleges he was re-evaluated on May 18, 2014 as a result of this order. Id. He takes issue with the findings of the re-evaluation, and the injury here is similarly speculative. Finally, Plaintiff has not pled what policies were in place that violated his rights, nor how the named Defendants were responsible for his specific sentencing and credit calculation. There are only conclusions that “Defendants had evidence that Plaintiff was entitled to be released from custody,” (ECF No. 1 at ¶ 50) without facts showing what information they had, how it was acquired, or when they had it, or who specifically had this information. The allegations do not provide an adequate factual basis for Defendants to defend the claims presented against them. As such, the Complaint should be dismissed, and Plaintiff should be required to plead facts which entitle him to relief under the law. C. Plaintiff’s Assault and Battery Claim Should Be Dismissed For Failure To State Facts Supporting the Claim. Plaintiff’s assault and battery claim is listed on the Complaint’s face page, but not pled in the body of the Complaint. ECF No. 1 at p. 1. Because there are no facts or pleading regarding this claim, it should be dismissed from the Complaint. / / / / / / / / / Case 5:16-cv-01582-BRO-SP Document 19 Filed 01/20/17 Page 10 of 13 Page ID #:127 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 D. Plaintiff’s Claim For Intentional Infliction of Emotional Distress Should Be Dismissed With Prejudice. “The elements of a cause of action for intentional infliction of emotional distress are (1) the defendant engages in extreme and outrageous conduct with the intent to cause, or with reckless disregard for the probability of causing, emotional distress; (2) the plaintiff suffers extreme or severe emotional distress; and (3) the defendant’s extreme and outrageous conduct was the actual and proximate cause of the plaintiff’s extreme or severe emotional distress.” Potter v. Firestone Tire & Rubber Co., 6 Cal.4th 965, 1001 (1993); Austin v. Terhune, 367 F.3d 1167, 1172 (9th Cir. 2004). To sustain a claim of intentional infliction of emotional distress, a plaintiff must allege that defendants engaged in outrageous, unprivileged conduct with the intent to cause, or with reckless disregard of the probability of causing emotional distress. Fletcher v. Western National Life Ins. Co., 10 Cal.App.3d 376, 394 (1970). In California, outrageous conduct has been defined as conduct which is “beyond all bounds of decency; ordinary rude or insulting behavior is not enough to justify an award of damages.” B. Witkin, 5 Summary of California Law: Torts § 451 (10th ed. 2005). California courts recognize that everyone must expect some emotional distress in life. Pitman v. Oakland, 243 Cal.Rptr. 306, 311 (Cal.Ct.App. 1988). “The law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it.” Id. (quoting 1 Restatement Torts, 2d, § 46, Comment j). To support a claim for intentional infliction of emotional distress, the conduct must be more than “intentional and outrageous. It must be conduct directed at the plaintiff, or occur in the presence of a plaintiff of whom the defendant is aware.” Christensen v. Superior Court, 54 Cal.3d 868, 903 (1991). Although Plaintiff claims to have been subject to intentional infliction of emotional distress, he fails to state specifically what Defendants did to cause him emotional harm, short of his Case 5:16-cv-01582-BRO-SP Document 19 Filed 01/20/17 Page 11 of 13 Page ID #:128 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 general allegation that Defendants failed to properly calculate his sentence. ECF No. 1 at ¶ 1. Nothing in the Complaint describes or otherwise alleges outrageous conduct on the part of Defendants. Plaintiff has not alleged that Defendant Madden had any awareness of Plaintiff personally, or that Defendant Madden intended to inflict severe emotional distress on Plaintiff. This claim should be dismissed with prejudice because there is no reasonable likelihood that Plaintiff could adequately amend it. CONCLUSION Based on the above, Defendants CDCR and Warden Madden respectfully request the Court dismiss Plaintiff’s federal claims for failure to state a claim under 42 U.S.C. §§ 1983 or 1985, and 28 U.S.C. §§ 2201-02. Additionally, Defendants request that Plaintiff’s state law claims be dismissed because: (1) CDCR is immune from suit unless liability is expressly stated by California statute; (2) there are no facts pled which establish an injury, let alone one that was caused by the named Defendants; (3) Plaintiff has not pled assault and battery; and (4) Plaintiff cannot plead intentional infliction of emotional distress. Dated: January 20, 2017 Respectfully submitted, KATHLEEN A. KENEALY Acting Attorney General of California GIAM M. NGUYEN Supervising Deputy Attorney General /s/ Jill Vander Borght JILL VANDER BORGHT Deputy Attorney General Attorneys for Defendants California Department of Corrections and Rehabilitation and R. Madden Case 5:16-cv-01582-BRO-SP Document 19 Filed 01/20/17 Page 12 of 13 Page ID #:129 CERTIFICATE OF SERVICE Case Name: Ward v. CDCR, et al. Case No. CV16-01582 BRO (SPx) I hereby certify that on January 20, 2017, I electronically filed the following documents with the Clerk of the Court by using the CM/ECF system: DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system. I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on January 20, 2017, at Los Angeles, California. K. Bobadilla /s/ K. Bobadilla Declarant Signature LA2016503097 62258489.doc Case 5:16-cv-01582-BRO-SP Document 19 Filed 01/20/17 Page 13 of 13 Page ID #:130 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 KATHLEEN A. KENEALY Acting Attorney General of California GIAM M. NGUYEN Supervising Deputy Attorney General JILL VANDER BORGHT Deputy Attorney General State Bar No. 240004 300 South Spring Street, Suite 1702 Los Angeles, CA 90013 Telephone: (213) 897-0188 Fax: (213) 897-7604 E-mail: Jill.VanderBorght@doj.ca.gov Attorneys for Defendants R. Madden and California Department of Corrections and Rehabilitation IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA EASTERN DIVISION LEONARD WARD, Plaintiff, v. CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, et al., Defendants. CV16-01582 BRO (SPx) DECLARATION OF DEPUTY ATTORNEY GENERAL JILL VANDER BORGHT IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS THE COMPLAINT Courtroom: 7C Judge: Hon. Beverly Reid O’Connell Action Filed: 7/20/2016 I, Jill Vander Borght, hereby declare and state: I have personal knowledge of the facts attested to herein, and if called to testify would and could testify competently hereto. 1. I am a Deputy Attorney General in the Correctional Law Section of the Office of the Attorney General for the State of California and am admitted to practice law in the State of California and before this Court. I represent Defendants California Department of Corrections and Rehabilitation and R. Madden in the above captioned matter. Case 5:16-cv-01582-BRO-SP Document 19-1 Filed 01/20/17 Page 1 of 6 Page ID #:131 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 2. On November 14, 2016, I attempted to meet and confer with counsel for Plaintiff, Ronald Faulk, regarding the grounds for Defendants’ Motion to Dismiss. 3. On November 15, 2016, I was informed by Mr. Faulk that he was ineligible to practice law and could no longer represent Plaintiff in this case. He was unable to discuss the legal issues or grounds for Defendants’ Motion and did not know when—or if—Plaintiff would obtain replacement counsel. 4. Based on his representation, Defendants sought and were granted an extension to file a responsive pleading. 5. On January 10, 2017, I checked PACER to find that Mr. Faulk still listed as counsel of record for the Plaintiff. 6. On January 10, 2017, I contacted Mr. Faulk to explain that I needed to meet and confer in advance of my motion, but I was unable to do so because he was still listed as counsel of record for the plaintiff. 7. Mr. Faulk replied that he was being disqualified on or around the time my response was due, but he would attempt to contact the plaintiff again. 8. A true and correct copy of the email exchange described above is attached to this Declaration as Exhibit A. 9. As of the date of this filing, I have no additional information regarding Plaintiff’s representation. 10. Based on the above, and despite Defendants’ best efforts, I have not been able to meet and confer with counsel, nor determine whether Defendants might be exempt from the requirement if Plaintiff is in pro se. But, given that the motion would be dispositive for Defendants, there was no possible resolution, short of a complete dismissal, that would obviate the need for a motion to dismiss. / / / / / / / / / / / / Case 5:16-cv-01582-BRO-SP Document 19-1 Filed 01/20/17 Page 2 of 6 Page ID #:132 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 11. Immediate notice of this Motion will be sent by PACER to Mr. Faulk, who as of the date of the filing, is still counsel of record for Plaintiff and is the exclusive contact provided to the Court in this case. I declare under penalty of perjury that the foregoing is true and correct. Executed on January 20, 2017, at Los Angeles, California. /s/ Jill Vander Borght Jill Vander Borght Case 5:16-cv-01582-BRO-SP Document 19-1 Filed 01/20/17 Page 3 of 6 Page ID #:133 Exhibit – A Case 5:16-cv-01582-BRO-SP Document 19-1 Filed 01/20/17 Page 4 of 6 Page ID #:134 Case 5:16-cv-01582-BRO-SP Document 19-1 Filed 01/20/17 Page 5 of 6 Page ID #:135 CERTIFICATE OF SERVICE Case Name: Ward v. CDCR, et al. Case No. CV16-01582 BRO (SPx) I hereby certify that on January 20, 2017, I electronically filed the following documents with the Clerk of the Court by using the CM/ECF system: DECLARATION OF DEPUTY ATTORNEY GENERAL JILL VANDER BORGHT IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS THE COMPLAINT I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system. I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on January 20, 2017, at Los Angeles, California. K. Bobadilla /s/ K. Bobadilla Declarant Signature LA2016503097 62258470.doc Case 5:16-cv-01582-BRO-SP Document 19-1 Filed 01/20/17 Page 6 of 6 Page ID #:136 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA LEONARD WARD, Plaintiff, v. CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, et al., Defendants. Case No. CV16-01582 BRO (SPx) [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S COMPLAINT Defendants R. Madden and California Department of Corrections and Rehabilitation filed a Motion to Dismiss the Complaint. Having considered all documents filed by the parties in connection with Defendants’ Motion to Dismiss, and good causing having been shown, the Motion to Dismiss is GRANTED. IT IS SO ORDERED. Dated: _________________________ __________________________ Hon. Beverly Reid O’Connell LA2016503097 / 62255261.doc Case 5:16-cv-01582-BRO-SP Document 19-2 Filed 01/20/17 Page 1 of 2 Page ID #:137 CERTIFICATE OF SERVICE Case Name: Ward v. CDCR, et al. No. CV16-01582 BRO (SPx) I hereby certify that on January 20, 2017, I electronically filed the following documents with the Clerk of the Court by using the CM/ECF system: [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S COMPLAINT I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system. I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on January 20, 2017, at Los Angeles, California. K. Bobadilla /s/ K. Bobadilla Declarant Signature LA2016503097 62258515.doc Case 5:16-cv-01582-BRO-SP Document 19-2 Filed 01/20/17 Page 2 of 2 Page ID #:138