Franklin v. Gomez

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ROBERT LEE FRANKLIN, Case No. 21cv252-MMA (AGS) BOOKING #19755604, 12 CDCR #H-57496, ORDER DISMISSING FIRST 13 AMENDED COMPLAINT Plaintiff, WITHOUT LEAVE TO AMEND 14 vs. PURSUANT TO 28 U.S.C. § 1915A(b) 15

16 JOSEPH GOMEZ, et al., 17 Defendants. 18 19 20 On February 9, 2021, Plaintiff Robert Lee Franklin, incarcerated at the George F. 21 Bailey Detention Facility in San Diego, California, filed a civil rights Complaint along 22 with a Motion for leave to proceed in forma pauperis (“IFP”). See Doc. Nos. 1-2. He 23 alleged his civil rights were violated by four private security officers employed by the 24 corporation that owns or operates the Westfield Mall in Carlsbad, California, the CEO 25 and four owners of that corporation, five Carlsbad Police Officers, two Deputy Public 26 Defenders and a Deputy District Attorney, all in connection with his arrest at the 27 Westfield Mall and subsequent conviction for theft of a medical device, which was 28 overturned on appeal but for which he was again convicted after an allegedly coerced 1 plea agreement. See Doc. No. 1 at 2-18. 2 On February 18, 2021, the Court denied Plaintiff’s IFP motion pursuant to 28 3 U.S.C. § 1915(g) after finding he has while incarcerated had at least three civil actions 4 dismissed on the grounds they were frivolous, malicious, or failed to state a claim upon 5 which relief can be granted and dismissed this action without prejudice to pay the civil 6 filing fee. See Doc. No. 3. Plaintiff paid the filing fee on April 16, 2021. See Doc. No. 7 8. 8 On April 28, 2021, the Court screened the Complaint pursuant to the provisions of 9 28 U.S.C. § 1915A(b), which requires the Court to sua sponte dismiss a prisoner’s 10 complaint, or any portion of it, which is frivolous, malicious, fails to state a claim, or 11 seeks damages from defendants who are immune from such relief. See Doc. No. 9. The 12 Court dismissed the Complaint with leave to amend after finding the prosecutor was 13 immune from suit, the public defender and private party defendants were not alleged to 14 have been acting under color of state law, the non-arresting responding police officers 15 were not alleged to have violated Plaintiff’s constitutional rights, and Plaintiff did not 16 state a claim against the arresting police officers because he failed to allege a lack of 17 probable cause for his arrest or that they discriminated against him. Id. at 6-15. The 18 Court also declined to exercise supplemental jurisdiction over any state law claims. Id. at 19 15. Plaintiff was informed of the deficiencies of his pleading and instructed that any 20 amended complaint was required to be complete in and of itself without reference to the 21 original Complaint, and that any Defendants not named and any claims not re-alleged 22 would be considered waived. Id. at 16. 23 Plaintiff has now filed a First Amended Complaint (“FAC”), accompanied by a 24 lodgment of documents. See Doc. Nos. 11-12. The FAC names only two Defendants, 25 neither of whom were named in the original Complaint, Laura Simpton, a Senior 26 Attorney employed by the California Victims Claims Board, and Eric Rivera, a Program 27 Analysist with the California Government Claims Program. Id. at 2-5. Plaintiff seeks to 28 hold these Defendants liable for how they handled a California Government Claims Act 1 claim he filed seeking compensation for having been convicted of and imprisoned for a 2 crime overturned on appeal. Id. 3 I. Screening pursuant to 28 U.S.C. § 1915A(b) 4 A. Standard of Review 5 Because Plaintiff is a prisoner his Complaint requires a pre-answer screening 6 pursuant to 28 U.S.C. § 1915A(b), which requires the Court to sua sponte dismiss a 7 prisoner’s complaint, or any portion of it, which is frivolous, malicious, fails to state a 8 claim, or seeks damages from defendants who are immune from such relief. Rhodes v. 9 Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010). “The purpose of § 1915A is to ensure 10 that 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) (internal quote marks omitted). 12 The standard for determining whether a plaintiff has failed to state a claim upon 13 which relief can be granted under § 1915A(b) is the same as the Federal Rule of Civil 14 Procedure 12(b)(6) standard for failure to state a claim. Wilhelm v. Rotman, 680 F.3d 15 1113, 1121 (9th Cir. 2012) (noting that § 1915A screening “incorporates the familiar 16 standard applied in the context of failure to state a claim under Federal Rule of Civil 17 Procedure 12(b)(6).”) Rule 12(b)(6) requires a complaint to “contain sufficient factual 18 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft 19 v. Iqbal, 556 U.S. 662, 678 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 20 544, 570 (2007). 21 Title 42 U.S.C. § 1983 “creates a private right of action against individuals who, 22 acting under color of state law, violate federal constitutional or statutory rights.” 23 Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a 24 source of substantive rights, but merely provides a method for vindicating federal rights 25 elsewhere conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal 26 quotation marks and citations omitted). “To establish § 1983 liability, a plaintiff must 27 show both (1) deprivation of a right secured by the Constitution and laws of the United 28 States, and (2) that the deprivation was committed by a person acting under color of state 1 law.” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 2 B. Plaintiff’s Allegations 3 Plaintiff alleges he submitted a California Government Claims Act claim seeking 4 compensation under California Penal Code § 4900, which provides compensation for 5 persons who have “been convicted of any crime against the state amounting to a felony 6 and imprisoned in the state prison or incarcerated in county jail pursuant to [California 7 Penal Code § 1170(h)] for that conviction,” and who is innocent because the crime “was 8 either not committed at all or, if committed, was not committed by him or her . . . .” Doc. 9 No. 11 at 3-4. He alleges Defendant Simpton, a Senior Attorney with the California 10 Victims Claims Board, “has denied my claim 2 times and threaten[ed] me the next time I 11 apply, she was going to trash my court paperwork.” Id. He also alleges Defendant 12 Rivera, a Program Analyst with the Government Claims Program, was involved in some 13 unidentified way in rejecting his claim. Id. at 4-5. As the Court noted in its Order 14 dismissing the original Complaint, Plaintiff was convicted by a jury of felony theft of a 15 medical device available for public use, had the conviction reduced to a misdemeanor at 16 sentencing, had the conviction reversed by the appellate court based on jury instruction 17 error, and then pleaded guilty to misdemeanor theft. See Doc. No. 9 at 5. 18 Plaintiff claims the Defendants’ actions were taken in their individual and official 19 capacities under color of state law and that they acted with negligent and deliberate 20 indifference to his constitutional right to appeal the denial of his Claims Act claim, which 21 amounted to cruel and unusual punishment in violation of the Eighth Amendment. See 22 Doc. No. 1 at 2-5. He seeks mandamus relief granting his Claims Act claim as well as 23 compensatory and punitive damages. Id. at 7. 24 C. Application of 28 U.S.C. § 1915A(b) 25 With respect to Defendant Rivera, who Plaintiff identifies as a “Program Analyst, 26 Government Claims Program,” there are no factual allegations against him in the FAC 27 whatsoever, merely conclusory statements: “Deliberately indifferent, wanton negligence, 28 gross negligence, denying access of my state claim violation of my constitutional right to 1 appeal.” Doc. No. 11 at 2. The FAC references a letter from Defendant Rivera to 2 Plaintiff dated August 7, 2020, attached to the FAC, which informs Plaintiff that his 3 Claims Act claim against the California Victim Compensation Board was rejected, and 4 providing confirmation that he can now initiate court action if he chooses to pursue the 5 matter further. Id. at 38. The California Government Claims Act requires a person 6 asserting a tort claim against a California governmental entity or employee to present the 7 claim to the California Government Claims Board within six months of accrual and 8 before filing an action for damages against that entity or employee. See A.M. v. Ventura 9 Unified School District, 3 Cal.App.5th 1252, 1257 (2016). Presentation of a written 10 claim, and action on or rejection of the claim by the Claims Board, are conditions 11 precedent to filing a suit. Shirk v. Vista Unified Sch. Dist., 42 Cal.4th 201, 208-09 12 (2007), superseded by statute on other grounds as stated in A.M., 3 Cal.App.5th at 1257. 13 The timely filing of a Claims Act claim is a “condition precedent to” bringing an action 14 because “[c]ompliance with the [California Government Claims Act] is mandatory; and 15 failure to file a claim is fatal to a cause of action.” Hacienda La Puente Unified Sch. 16 Dist. of L.A. v. Honig, 976 F.2d 487, 495 (9th Cir. 1992) (quoting City of San Jose v. 17 Superior Court, 12 Cal.3d 447, 454 (1974)). “[A] plaintiff must allege facts 18 demonstrating or excusing compliance with the claim presentation requirement.” State of 19 California v. Superior Court (Bodde), 32 Cal.4th 1234, 1243 (2004). 20 It is unclear whether Plaintiff’s reference to Defendant Rivera as a Defendant in 21 this action is an effort to demonstrate compliance with the Claims Act’s presentation 22 requirement necessary to bring this action or because he seeks to hold Defendant Rivera 23 liable merely for informing him that his Claims Act claim had been denied. In either 24 case, the FAC does not state a claim against Defendant Rivera because it does not contain 25 sufficient factual matter, accepted as true, to state a plausible claim that this Defendant 26 deprived Plaintiff “of a right secured by the Constitution and laws of the United States.” 27 Iqbal, 556 U.S. at 678; Tsao, 698 F.3d at 1138. At most, the FAC alleges Defendant 28 Rivera informed Plaintiff that his administrative remedies had been exhausted and he 1 could commence a lawsuit, but there are no allegations, plausible or otherwise, that 2 Defendant Rivera took any part in making the decision to deny his claim or impeded his 3 claim in any way. As discussed immediately below, Plaintiff cannot cure that pleading 4 defect and cannot state a 42 U.S.C. § 1983 claim against Defendant Rivera. 5 Plaintiff claims Defendant Simpton, a Senior Attorney with the California Victims 6 Claims Board, rejected his Claims Act claim seeking compensation for imprisonment for 7 a crime he did not commit, denied his appeal of that rejection, and “has denied my claim 8 2 times and threaten[ed] me the next time I apply, she was going to trash my court 9 paperwork.” Doc. No. 11 at 3-4. Attached to the FAC is a letter from Defendant 10 Simpton dated January 23, 2020, informing Plaintiff that he was seeking compensation 11 based on a misdemeanor conviction which was reversed on appeal due to instructional 12 error and had never been sentenced to state prison or county jail for that offense as a 13 felony, and that as a result did not meet the requirements of California Penal Code § 14 4900(a), which provides that only those persons who have “been convicted of any crime 15 against the state amounting to a felony and imprisoned in the state prison or incarcerated 16 in county jail . . . for that conviction [which] was either not committed at all or, if 17 committed, was not committed by him or her” may apply for compensation. Id. at 44. 18 The letter states that Plaintiff had thirty days in which to submit documentation disputing 19 that determination or his application would be deemed rejected and returned unfiled. Id. 20 Plaintiff also attaches an April 28, 2020, letter from Defendant Simpton informing him 21 that his appeal of that determination was rejected for those same reasons. Id. at 40. In 22 his separate lodgment, Plaintiff contends Defendant Simpton denied his claim a third 23 time and attaches a July 3, 2020 letter from Defendant Simpton returning his duplicate 24 application for relief “as a one-time courtesy,” informing him that any future submissions 25 concerning this case “will be discarded without any consideration and will not be 26 returned to you,” and reiterating he is not entitled to compensation under California Penal 27 Code § 4900 “because (1) you did not challenge a felony conviction, only a 28 misdemeanor, and (2) you did not serve any period of imprisonment imposed pursuant to 1 Penal Code section 1170, subsection (h).” Doc. No. 12 at 2. 2 Plaintiff claims Defendant Simpton erred and he is in fact entitled to compensation 3 under California Penal Code § 4900 because he was convicted by a jury of a felony, 4 albeit one that was reduced to a misdemeanor at sentencing, for which he was 5 incarcerated and, according to the appellate court, did not commit. As the Court noted in 6 its Order dismissing the original Complaint in this matter, the appellate court did not find 7 that no crime had been committed or that Plaintiff did not commit the crime, merely that 8 a properly instructed jury could have found no crime was committed or Plaintiff did not 9 commit a crime, and the appellate court remanded for a new trial which never took place 10 because Plaintiff thereafter pleaded guilty. See Doc. No. 9 at 5. 11 Plaintiff has failed to allege a violation of the Eighth Amendment’s prohibition 12 against cruel and unusual punishment. “To be cruel and unusual punishment, conduct 13 that does not purport to be punishment at all must involve more than ordinary lack of due 14 care for the prisoner’s interests or safety. . .. It is obduracy and wantonness, not 15 inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel 16 and Unusual Punishments Clause.” Whitley v. Albers, 475 U.S. 312, 319 (1986). As 17 discussed immediately below, Plaintiff merely alleges the Defendants denied his Claims 18 Act claim based on a different reading of the applicable statute after notifying him of the 19 deficiencies of his claim and providing him an opportunity to correct them, which at most 20 could be considered inadvertence or error in good faith but not obduracy and wantonness. 21 Because Plaintiff is proceeding pro se, the Court liberally construes his FAC as 22 also alleging a violation of federal due process. See Ferdik v. Bonzelet, 963 F.2d 1258, 23 1261 (9th Cir. 1992) (noting that the rule of liberal construction is “particularly important 24 in civil rights cases.”). To state a claim for violation of federal due process arising from 25 Defendant Simpton’s denial of his claim, Plaintiff must allege facts “which plausibly 26 show a deprivation of a constitutionally protected life, liberty, or property interest.” 27 Shanks v. Dressel, 540 F.3d 1082, 1087 (9th Cir. 2008). In addition, that depravation 28 must be arbitrary. Brittain v. Hansen, 451 F.3d 982, 991 (9th Cir. 2006). “When 1 executive action like a discrete permitting decision is at issue, only ‘egregious official 2 conduct can be said to be arbitrary in the constitutional sense’: it must amount to an 3 ‘abuse of power’ lacking any ‘reasonable justification in the service of a legitimate 4 governmental objective.’” Shanks, 540 F.3d at 1088, quoting County of Sacramento v. 5 Lewis, 523 U.S. 833, 846 (1998). 6 Construing the allegations in the FAC in the light most favorable to Plaintiff and 7 accepting as true his unlikely contention he can show Defendant Simpton’s reading of the 8 statute is incorrect, he has not stated a claim against Defendant Simpton based on her 9 interpretation of the statute. Plaintiff acknowledges Defendant Simpton notified him 10 three times of the deficiency of his claim and allowed him to submit evidence showing he 11 had been incarcerated as a result of a felony he did not commit, and that his Claims Act 12 claim was denied based on Defendant Simpton’s interpretation of California Penal Code 13 § 4900. These allegations do not state a federal due process claim. See Brittain, 451 14 F.3d at 996 (“[D]ue process secures individuals from ‘arbitrary’ government action that 15 rises to the level of ‘egregious conduct,’ not from reasonable, though possibly erroneous, 16 legal interpretation.”). Plaintiff has not, and considering the documents attached to and 17 submitted in support of the FAC cannot, plausibly alleged a violation of his federal 18 constitutional rights against either Defendant for their involvement in denying his claim 19 for compensation under California Penal Code § 4900. Id.; see also Shanks, 540 F.3d at 20 1088 (holding that decisions based on erroneous legal interpretation or made with a lack 21 due care are not constitutionally arbitrary). To the extent Plaintiff intended to bring any 22 state law claims, the Court declines to exercise supplemental jurisdiction over such 23 claims because all of Plaintiff’s federal claims have been dismissed. See Sanford v. 24 Member Works, Inc., 625 F.3d 550, 561 (9th Cir. 2010) (“[I]n the usual case in which all 25 federal-law claims are eliminated before trial, the balance of factors to be considered 26 under the pendent jurisdiction doctrine - judicial economy, convenience, fairness, and 27 comity - will point toward declining to exercise jurisdiction over the remaining state-law 28 claims.”) (quoting Carnegie-Mellon Univ. v. Cahill, 484 U.S. 343, 350 n.7 (1988), | || superseded on other grounds by 28 U.S.C. § 1447(c)). 2 Conclusion and Order 3 The Court DISMISSES the FAC in its entirety pursuant to 28 U.S.C. § 1915A(b) 4 || based on Plaintiffs failure to state a claim upon which relief may be granted. Because 5 || Plaintiff cannot cure the pleading defects with respect to his claims, dismissal is with 6 || prejudice and without leave to amend. See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th 7 || Cir. 2015) (“A district court should not dismiss a pro se complaint without leave to 8 |}amend unless ‘it is absolutely clear that the deficiencies of the complaint could not be 9 || cured by amendment.’”) (quoting Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012)). 10 || The Court CERTIFIES that an IFP appeal would not be taken in good faith pursuant to 11 U.S.C. § 1915(a)(3). The Court DIRECTS the Clerk of Court to enter judgment 12 || accordingly and close the case. 13 IT IS SO ORDERED. 14 DATE: July 13, 2021 Mibu □ Ta _ / / Vf, 15 HON. MICHAEL M. ANELLO 16 United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 9