Christopher D. Warsaw v. Captain J. Garcia, CDCR A.W. - A May, Staff A. Perez

• Court: District Court, S.D. California
• Decided: December 29, 2025
• Docket: 3:25-cv-01262
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CHRISTOPHER D. WARSAW, Case No.: 25-cv-1262-JO-DDL

12 Plaintiff, REPORT AND 13 v. RECOMMENDATION FOR ORDER GRANTING 14 CAPTAIN J. GARCIA, CDCR A.W. DEFENDANTS’ MOTION TO 15 - A MAY, STAFF A. PEREZ, DISMISS WITH LEAVE TO Defendants. AMEND 16

17 [Dkt. No. 2]

18 The undersigned respectfully submits this Report and Recommendation to 19 United States District Judge Jinsook Ohta pursuant to 28 U.S.C. § 636(b) and Civil 20 Local Rule 72.3. Plaintiff Christopher D. Warsaw (“Plaintiff”), an inmate at Richard 21 J. Donovan Correctional Facility (“RJD”), is proceeding pro se in this civil rights 22 action. Before the Court is a Motion to Dismiss Plaintiff’s Complaint (the “Motion to 23 Dismiss”) by Defendants A. Perez, J. Garcia, and A. May (collectively 24 “Defendants”). Dkt. No. 2. 25 For the reasons stated below, the undersigned RECOMMENDS that the 26 District Court GRANT Defendants’ Motion to Dismiss WITH LEAVE TO AMEND. 27 / / / 28 1 I. 2 BACKGROUND 3 A. Procedural History 4 On February 13, 2025, Plaintiff filed his initial complaint in the Superior Court 5 of California, County of San Diego. Dkt. No. 1-4 at 13-39. Defendants removed 6 the action to this Court on May 16, 2025. Id. 7 On May 29, 2025, Defendants filed the instant Motion to Dismiss for Failure 8 to State a Claim. Dkt No. 2. 9 On May 30, 2025, Plaintiff filed a timely motion objecting to removal that the 10 Court interpreted as a motion to remand and a motion for appointment of counsel. 11 Dkt. Nos. 4, 6; 28 U.S.C § 1447(c). On July 17, 2025, the District Court denied 12 Plaintiff’s motion to remand, “constru[ing] Plaintiff’s claim that state prison officers 13 wrongly denied him access to legal materials for his state criminal and habeas 14 cases as a 42 U.S.C. § 1983 claim for a violation of the First Amendment right to 15 access the courts” over which the Court has original jurisdiction. Dkt. No. 11. 16 On July 17, 2025, Plaintiff requested entry of Clerk Default under Rule 55(a) 17 against Defendants for failing to file an answer or responsive pleading to the 18 complaint within 21 days pursuant to Rule 12(a)(1)(A)(i). Dkt. No. 12. 19 B. Complaint Allegations 20 The first page of Plaintiff’s Complaint describes his cause of action as “due 21 process violation” and “under color of law.” The Complaint contains two causes of 22 action. The first cause of action alleges Defendants “violated my constitutional 23 rights ‘due process’ by denying me access to the courts in a pending 1054.9 24 discovery motion pending before Judge Ronald S. Coen, Dept. 101 LA Superior 25 Court.” Dkt. No. 1-3 at 7. Specifically, Plaintiff alleges he requested Officer Paul 26 Devlin’s bodyworn camera (“BWC”) footage from a shooting incident involving 27 Plaintiff “preparing to file a writ of habeas and Pitchess motion against Officer Paul 28 Devlin of the Inglewood Police Department.” Id. The BWC video was sent to 1 Plaintiff at RJD by Lieutenant Scott Collins of the Inglewood Police Department 2 (“IPD”). Id. Plaintiff alleges Defendants denied him access to the video and sent 3 the video back to the IPD. Id. 4 Plaintiff’s second cause of action alleges Defendants “intentional[ly] 5 interfered with evidence sent to Plaintiff bodycam video also intentionally inflicted 6 emotional/physical distress.” Id. at 8. 7 The Complaint includes documentation from Plaintiff’s CDCR grievances. 8 Id. at 10-29. According to an “Office Of Appeals Decision” issued on May 24, 2024: 9 Appellant’s received disc was correctly considered contraband as 10 outlined within Title 15, section 3006(c)(10) and appellant received a 11 Form 1819, Notification of Disapproval for Mail/Packages/Publications 12 accordingly. Furthermore, appellant does not have any way to view the 13 police video disc if it were allowable property obtained through an 14 approved vendor. Appellant was advised to request to view the video 15 disc with assistance from the Investigative Serivces [sic] Unit, or 16 appellant can request a transcript of the video from the Inglewood 17 Police Department. No violation of departmental policy or procedures 18 were discovered in the review of the grievance. Thus, the claim is 19 denied. 20 Id. at 10. 21 C. Parties’ Positions 22 Defendants contend the Complaint does not allege a claim under 42 U.S.C. 23 § 1983 and fails to allege an injury. Dkt. No. 2. Additionally, Defendants argue that 24 Plaintiff fails to state an IIED claim because he does not allege Defendants acted 25 with “extreme and outrageous conduct with the intention of causing, or reckless 26 disregard of the probability of causing, emotional distress.” Id. 27 Plaintiff contends Defendants did not comply with Fed. R. Civ. P. 12(A)(i)’s 28 requirement to serve an answer within 21 days of service with of a summons and 1 complaint. Dkt. No. 10. Plaintiff also contends he is entitled to amend the 2 complaint, should the Court grant Defendants’ Motion to Dismiss. Id. 3 Defendants reply that their Motion was filed timely following removal, thereby 4 tolling the time permitted for filing an answer. Dkt. No. 13. Defendants further 5 contend that Plaintiff “offers no argument, analysis, or rebuttal to Defendants’ 6 Motion to Dismiss” and request the Court dismiss Plaintiff’s complaint without leave 7 to amend. Id.1 8 II. 9 LEGAL STANDARDS 10 A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) 11 “tests the legal sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th 12 Cir. 2001).2 To survive a motion to dismiss, a complaint must plead “enough facts 13 to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 14 550 U.S. 544, 570 (2007); Fed. R. Civ. P. 12(b)(6). “A claim has facial plausibility 15 when the plaintiff pleads factual content that allows the court to draw the 16 reasonable inference that the defendant is liable for the misconduct alleged.” 17 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The court must “accept all allegations 18 of material fact in the complaint as true and construe them in the light most 19 favorable to the non-moving party,” Cedars-Sinai Med. Ctr. v. Nat’l League of 20 Postmasters of U.S., 497 F.3d 972, 975 (9th Cir. 2007), but need not “accept as 21

22 23 1 Defendants are correct that a timely motion to dismiss tolls the deadline to answer a complaint. Fed. R. Civ. P. 12(a)(4). However, Defendants assume their 24 motion was timely filed. See Fed. R. Civ. P. 81(c)(2)(C) (where defendant did not 25 answer before removal, must respond to complaint “7 days after the notice of removal is filed”). Given that this issue was not raised by the parties, the Court 26 will consider the motion to dismiss on the merits. 27 2 Unless otherwise noted, all internal quotations marks, ellipses, brackets, 28 1 true allegations that are merely conclusory, unwarranted deductions of fact, or 2 unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F. 3d 1049, 1055 (9th 3 Cir. 2008). 4 Pleadings drafted by pro se inmates such as Plaintiff are “held to less 5 stringent standards than formal pleadings drafted by lawyers” and the Court must 6 construe them “liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). 7 Nevertheless, the complaint “must allege with at least some degree of particularity 8 overt facts which defendant[s] engaged in to support plaintiff’s claim,” Herrejon v. 9 Ocwen Loan Servicing, LLC, 980 F. Supp. 2d 1186, 1196 (E.D. Cal. 2013), and 10 the Court must not “supply essential elements of the claim that were not initially 11 pled.” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997). 12 The Court may consider material which is properly submitted as part of the 13 complaint, such as an attached exhibit or a document incorporated by reference 14 into the complaint, without converting the motion to dismiss into a motion for 15 summary judgment. Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 16 (9th Cir. 1995). However, the Court “may not look beyond the complaint to a 17 plaintiff’s moving papers, such as a memorandum in opposition to a defendant’s 18 motion to dismiss.” Schneider v. California Dep’t of Corr., 151 F.3d 1194, 1197 n.1 19 (9th Cir. 1998). 20 Where a complaint does not survive a Rule 12(b)(6) analysis, the Court will 21 grant leave to amend unless it determines that no modified contention “consistent 22 with the challenged pleading…[will] cure the deficiency” making amendment futile. 23 DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655,658 (9th Cir. 1992) (internal 24 citation omitted); see Ramirez v. Galaza, 334 F.3d 850, 861 (9th Cir. 2003). Before 25 dismissing a pro se complaint the district court must provide a pro se litigant notice 26 of the deficiencies within the complaint to ensure that the litigant uses the 27 opportunity to amend effectively. Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 28 1992). 1 III. 2 DISCUSSION 3 A. Plaintiff’s Asserts A Section 1983 Claim 4 Defendants correctly point out that Plaintiff’s Complaint does not directly cite 5 42 U.S.C. § 1983. However, in denying Plaintiff’s motion to remand, the Court 6 “construed Plaintiff’s claim that state prison officers wrongly denied him access to 7 legal materials for his state criminal and habeas cases as a 42 U.S.C. § 1983 claim 8 for a violation of the First Amendment right to access the courts.” Dkt. No. 11. 9 Having construed the Complaint as seeking relief under § 1983, the Court declines 10 to dismiss Plaintiff’s civil rights claim because it does not directly reference that 11 statute. 12 B. The Complaint Does Not State A Claim For Right To Access The Courts 13 Plaintiff alleges Defendants deprived him of access to and possession of the 14 CD containing BWC footage from IPD and thereby interfered with Plaintiff’s right 15 to access the courts. Defendants contend the Complaint does not allege that 16 Plaintiff suffered an injury. The Court agrees with Defendants. 17 “Under the First Amendment, a prisoner has both a right to meaningful 18 access to the courts and a broader right to petition the government for a redress 19 of his grievances.” Silva v. Di Vittorio, 658 F. 3d 1090, 1101-02 (9th Cir. 2011) 20 overruled on other grounds by Coleman v. Tollefson, 575 U.S. 532 (2015). This 21 right forbids states from erecting barriers that impede the right of access of 22 incarcerated persons. Id. at 1102. As such, “prisoners have a right under the First 23 and Fourteenth Amendments to litigate claims challenging their sentences or the 24 conditions of their confinement to conclusion without active interference by prison 25 officials. “ Id. at 1103 (emphasis in original). 26 “Claims for denial of access to the courts may arise from systemic official 27 action that frustrates a plaintiff in preparing and filing suits at the present time 28 (known as a forward-looking claim), or from official acts resulting in the loss of a 1 claim or suit that cannot now proceed (a backward-looking claim).” Mascorro v. 2 Cnty. of San Diego, No. 21-CV-2012-RSH-DDL, 2025 WL 3251602, at *5 (S.D. 3 Cal. Nov. 21, 2025). 4 A plaintiff alleging a violation of the right to access the court “must identify a 5 ‘nonfrivolous,’ ‘arguable’ underlying claim,” and “the underlying cause of action, 6 whether anticipated or lost, is an element that must be described in the complaint, 7 just as much as allegations must describe the official acts frustrating the litigation.” 8 Christopher v. Harbury, 536 U.S. 403, 415 (2002). “Like any other element of an 9 access claim, the underlying cause of action and its lost remedy must be 10 addressed by allegations in the complaint sufficient to give fair notice to a 11 defendant.” Id. at 416. Thus, the complaint must allege the “predicate claim” “well 12 enough to apply the ‘nonfrivolous’ test and to show that the ‘arguable’ nature of the 13 underlying claim is more than hope.” Id. See also id. at 417-18 (“the complaint 14 should state the underlying claim in accordance with Federal Rule of Civil 15 Procedure 8(a), just as if it were being independently pursued, and a like plain 16 statement should describe any remedy available under the access claim and 17 presently unique to it.”). 18 In addition, a plaintiff “must allege ‘actual injury’ as the threshold requirement 19 to any access to courts claim.” Thompson v. Taboada, No. 25-CV-01921-AJB- 20 SBC, 2025 WL 3014552, at *5 (S.D. Cal. Oct. 28, 2025). “An ‘actual injury’ is 21 “actual prejudice with respect to contemplated or existing litigation, such as the 22 inability to meet a filing deadline or to present a claim.” Id. The “[f]ailure to show 23 that a ‘non-frivolous legal claim had been frustrated’ is fatal.” Alvarez v. Hill, 518 24 F.3d 1152, 1155 n.1 (9th Cir. 2008). As the Ninth Circuit has explained: 25 To pursue an access claim at the pleading stage, [the plaintiff] must 26 show that he has suffered an “actual injury” by plausibly alleging that 27 a prison official interfered with his “capability of bringing contemplated 28 challenges to sentences or conditions of confinement before the 1 courts.” Lewis v. Casey, 518 U.S. 343, 349, 353 n.3, 356 [] (1996). 2 Satisfying this standard requires pleading that a prison official took 3 some action that prevented [the plaintiff] from having “‘meaningful 4 access’ to the courts.” Phillips v. Hust, 588 F.3d 652, 655–56 (9th Cir. 5 2009) (quoting Lewis, 518 U.S. at 351 []). Simply alleging a wrongful 6 act in vacuo will not suffice. Lewis, 518 U.S. at 351 []. The “right at 7 issue” is not “the right to a law library” or the right to receive one’s 8 mail; it is the right to access the courts to press a claim. Id. at 350 []. 9 Thus, an “inmate ... must ... demonstrate that the alleged 10 shortcomings ... hindered his efforts to pursue a legal claim.” Id. at 11 351. 12 In addition to pleading an underlying claim, a backwards-looking 13 access claim must plead a remedy that “may be awarded as 14 recompense but [is] not otherwise available in some suit that may yet 15 be brought.” Christopher v. Harbury, 536 U.S. 403, 415 [] (2002). 16 Penton v. Pool, 724 F. App'x 546, 548-49 (9th Cir. 2018). 17 Here, Plaintiff’s Complaint does not sufficiently allege an access to courts 18 claim under the foregoing standards: 19 First, the Complaint does not adequately “identify a ‘nonfrivolous,’ ‘arguable’ 20 underlying claim” that Plaintiff contends he was seeking to pursue. Christopher, 21 536 U.S. at 415. Plaintiff’s Complaint identifies a pending “1054.9 Discovery 22 Motion” in an unidentified case in the Los Angeles Superior Court. Plaintiff also 23 asserts in his Complaint that he was “preparing to file a writ of habeas and Pitchess 24 motion against Officer Paul Devlin of the [IPD].” Dkt. No. 1-3 at 7. It is unclear if 25 Plaintiff alleges these were two separate predicate claims or a singular predicate 26 claim in which Plaintiff was seeking relief. Therefore, there are insufficient facts 27 pled showing that Plaintiff’s predicate claims are nonfrivolous and arguable. In any 28 amended complaint, Plaintiff must plead facts describing “the underlying cause of 1 action and its lost remedy” sufficient “to give fair notice” to Defendants. 2 Christopher, 536 U.S. at 416 (2002). 3 Second, Plaintiff’s Complaint does not allege an “actual injury” caused by 4 Defendants’ conduct. As discussed above, an actual injury is “actual prejudice 5 with respect to contemplated or existing litigation, such as the inability to meet a 6 filing deadline or to present a claim.” Thompson, 2025 WL 3014552, at *5. Plaintiff 7 generally alleges that Defendants refused to give him the bodycam footage CD 8 and instead returned the CD to IPD. However, Plaintiff does not allege any facts 9 as to how Defendants’ actions interfered with his “capability of bringing 10 contemplated challenges to sentences or conditions of confinement before the 11 courts.” Lewis, 518 U.S. at 349. Plaintiff contends he was “preparing to file a writ 12 of habeas and Pitchess motion” and that there was a pending “1054.9 Discovery 13 Motion,” but he does not allege facts showing that Defendants’ conduct prevented 14 him from bringing these motions or that he was unable to press his claims within 15 the existing unidentified predicate matter for the discovery motion due to the 16 Defendants’ actions. As a result, Plaintiff has failed to sufficiently allege official 17 acts that frustrated his underlying cause of action or litigation. In any amended 18 complaint, Plaintiff must allege facts demonstrating “that a prison official took some 19 action that prevented [him] from having meaningful access to the courts.” Penton, 20 724 F. App'x at 549. 21 Third, the Court concludes that Plaintiff’s Complaint does plead a remedy 22 that “may be awarded as recompense but [is] not otherwise available in some suit 23 that may yet be brought.” Christopher, 536 U.S. at 415. Plaintiff prays for 24 $1,500,000 in damages as recompense for Defendants’ conduct. “These are 25 money damages that may be awarded in a successful access-to-courts § 1983 26 action, and are not clearly duplicable through another type of action.” Penton, 724 27 F. App'x at 550. 28 / / / 1 Because Plaintiff has failed to plead allegations sufficient to support a right 2 of access to the court claim, the Court RECOMMENDS that Defendant’s Motion to 3 Dismiss Plaintiff’s right of access to the courts claim against all Defendants be 4 GRANTED WITH LEAVE TO AMEND. 5 B. IIED claim 6 Plaintiff’s second cause of action alleges Defendants “intentional[ly] 7 interfered with evidence sent to Plaintiff bodycam video also intentionally inflicted 8 emotional/physical distress.” Id. at 8. Given that the language regarding 9 Defendants’ interference with evidence is duplicative of Plaintiff’s right to access 10 the courts claim, the Court construes this claim as alleging IIED. 11 “Under California law, a prima facie case of IIED requires the following: 12 (1) extreme and outrageous conduct by the defendant; (2) with the intention of 13 causing, or reckless disregard of the probability of causing emotional distress; 14 (3) the plaintiff’s suffering severe or extreme emotional distress; and (4) actual and 15 proximate causation of the emotional distress by defendant’s outrageous conduct.” 16 Victoria v. City of San Diego, 326 F. Supp. 3d 1003, 1021 (S.D. Cal. 2018). Taking 17 the allegations of Plaintiff’s Complaint in their entirety, and in the light most 18 favorable to Plaintiff, Plaintiff has failed to allege facts in support of the elements 19 for an IIED claim. Plaintiff does not sufficiently plead extreme and outrageous 20 conduct by any of the Defendants or their intent or reckless disregard. Further, 21 aside from conclusory allegations that he has suffered from IIED, Plaintiff does not 22 allege facts indicating that he has suffered severe or extreme emotional distress 23 due to the Defendants’ conduct. The Court therefore RECOMMENDS that 24 Defendant’s Motion to Dismiss Plaintiff’s IIED claim against all Defendants be 25 GRANTED WITH LEAVE TO AMEND. 26 / / / 27 / / / 28 / / / 1 IV. 2 CONCLUSION AND RECOMMENDATION 3 For all the foregoing reasons, IT IS HEREBY RECOMMENDED that the 4 || District Judge issue an Order: 5 (1) Approving and adopting this Report and Recommendation; and 6 (2) Granting Defendants’ Motion to Dismiss [Dkt. No. 2] and holding that: 7 (A) Plaintiff's right of access to the courts claim is dismissed with leave to 8 amend; and 9 (C) Plaintiff's IIED claim is dismissed with leave to amend. 10 IT IS HEREBY ORDERED that any written objections to this Report must be 11 || filed with the Court and served on all parties no later than January 12, 2026. The 12 ||document should be captioned “Objections to Report and Recommendation.” 13 IT IS FURTHER ORDERED that any reply to the objections shall be filed 14 || with the Court and served on all parties no later than January 26, 2026. The parties 15 advised that the failure to file objections within the specified time may waive 16 right to raise those objections on appeal of the Court’s order. See Turner v. 17 || Duncan, 158 F.3d 449, 455 (9th Cir. 1998). 18 || IT IS SO ORDERED. 19 || Dated: December 29, 2025 it 20 Tb hohe Hon. DavidD.Leshner SCS 22 United States Magistrate Judge 23 24 25 26 27 28