Fuentes v. Montgomery

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JONATHAN FUENTES, Case No.: 20cv1942-LAB (RBM) CDCR #BA-1693, 12 ORDER DISMISSING FIRST Plaintiff, 13 AMENDED COMPLAINT vs. 14

15 WARDEN W.L. MONTGOMERY and 16 CORRECTIONAL OFFICERS 17 J. BELTRAN, L. MENIDVIL and J. SILLAS, 18 Defendants. 19 20 21 22 On September 30, 2020, Plaintiff Jonathan Fuentes, a California state prisoner 23 incarcerated at Calipatria State Prison in Calipatria, California, filed this civil rights action 24 pursuant to 42 U.S.C. § 1983 claiming his rights to due process and access to the courts 25 were violated when his personal property, including legal material, was removed from his 26 cell and lost. (ECF No. 1.) On December 2, 2020, the Court granted Plaintiff leave to 27 proceed in forma pauperis and screened the Complaint pursuant to 28 U.S.C. §§ 1915(e)(2) 28 and 1915A(b). (ECF No. 9.) As a result of that screening, the Court dismissed the 1 Complaint for failure to state a claim upon which relief could be granted, ruling that the 2 Fifth Amendment due process claim regarding the loss of property wasn’t cognizable since: 3 1) an adequate state remedy was available; 2) Plaintiff failed to allege actual injury 4 necessary to state a First Amendment access to courts claim; and 3) Plaintiff failed to allege 5 Defendant Warden Montgomery’s personal participation in the alleged constitutional 6 violations. (Id. at 5-6.) The Court’s order notified Plaintiff of these pleading deficiencies 7 and granted leave to amend. (Id. at 7.) Plaintiff has now filed a First Amended Complaint 8 (“FAC”). (ECF No. 10.) 9 I. Screening pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) 10 A. Standard of Review 11 Because Plaintiff is a prisoner and is proceeding in forma pauperis, his FAC requires 12 a pre-Answer screening. Under 28 U.S.C. §§ 1915(e)(2) and (b), the Court must sua sponte 13 dismiss a prisoner’s IFP complaint, or any portion of it, which is frivolous, malicious, fails 14 to state a claim, or seeks damages from defendants who are immune. See Lopez v. Smith, 15 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); 16 Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. 17 § 1915A(b)). “The purpose of § 1915A is to ensure that the targets of frivolous or malicious 18 suits need not bear the expense of responding.” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 19 (9th Cir. 2014) (internal quote marks omitted). 20 “The standard for determining whether a plaintiff has failed to state a claim upon 21 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 22 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 23 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 24 2012) (noting that § 1915A screening “incorporates the familiar standard applied in the 25 context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6)”). Rule 26 12(b)(6) requires a complaint to “contain sufficient factual matter, accepted as true, to ‘state 27 a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), 28 quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). 1 Title 42 U.S.C. § 1983 “creates a private right of action against individuals who, 2 acting under color of state law, violate federal constitutional or statutory rights.” Devereaux 3 v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of 4 substantive rights, but merely provides a method for vindicating federal rights elsewhere 5 conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks and 6 citations omitted). “To establish § 1983 liability, a plaintiff must show both (1) deprivation 7 of a right secured by the Constitution and laws of the United States, and (2) that the 8 deprivation was committed by a person acting under color of state law.” Tsao v. Desert 9 Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 10 B. Plaintiff’s Allegations 11 In count one of the FAC Plaintiff claims a violation of his First Amendment right of 12 access to the courts. (ECF No. 10 at 3.) He alleges that when he was placed in the 13 Outpatient Housing Unit on October 29, 2018, Defendants Calipatria Correctional Officers 14 L. Menidvil and J. Sillas conducted a property inventory of the personal property in his 15 vacated cell, which included legal materials, but, in contradiction of prison regulations, 16 failed to provide Plaintiff with an Inmate Property Inventory Sheet. (Id.) He alleges another 17 inmate witnessed those two Defendants “maliciously laughing and joking [that] [h]e won’t 18 need this anymore” as they tore and destroyed his copy of the California Code of 19 Regulations and four other books labeled, “LEGAL BOOKS.” (Id.) He alleges those two 20 Defendants were also observed throwing out “small hand size appliances,” which included 21 headphones and “trimmers.” (Id. at 3-4.) 22 In count two of the FAC, Plaintiff claims a violation of his due process rights. (Id. 23 at 4.) He alleges that on December 6, 2018, Defendant Calipatria Correctional Officer 24 J. Beltran interviewed Plaintiff with respect to an inmate grievance he filed regarding the 25 loss of his property. (Id.) Plaintiff mentioned during that interview he was missing legal 26 books and other property, that the removal of his property from his cell was done in 27 violation of prison regulations, and that a missing legal document—an internal prison staff 28 complaint—was a material exhibit in a pending civil matter as it constituted proof of 1 interference with his ability to exhaust administrative remedies in that case. (Id.) He alleges 2 no attempt was made to recover his missing property, including procedures required by 3 prison regulations, despite his numerous efforts to claim his property. (Id.) 4 Finally, Plaintiff claims Defendant Calipatria Warden W.L. Montgomery was 5 negligent in establishing procedures used to inventory and protect personal property of 6 inmates and in failing to properly train correctional staff in that regard. (Id. at 5.) He claims 7 Defendant Warden Montgomery’s actions in training, supervision and control of his staff 8 shows a reckless or callous disregard to the rights of others, and constituted negligence to 9 his personal property in violation of the Fifth Amendment’s guarantee he will not be 10 deprived of life, liberty or property without due process of law. (Id.) 11 Plaintiff seeks monetary damages in the sum of $217.60, unspecified punitive 12 damages, an order requiring Defendants to compensate Plaintiff for the value of his 13 property and “all legal material that was not inventoried,” and an injunction requiring 14 Defendant Warden Montgomery or his agents to “immediately arrange for the plaintiff [to] 15 be given a chance to re-open [Plaintiff’s prior civil case] with explanation on why some of 16 my legal material was not provided by C.D.C.R at that time.” (Id. at 7.) 17 C. Fifth Amendment Due Process Claim 18 The Court previously dismissed Plaintiff’s claim that his federal due process rights 19 were violated by the loss or destruction of his personal property. When a state provides an 20 adequate post-deprivation remedy for the taking of property (as California law does), the 21 Court explained, the existence of that remedy satisfies the requirements of due process. 22 (ECF No. 9 at 5, citing Zinermon v. Burch, 494 U.S. 113, 128 (1990), Barnett v. Centoni, 23 31 F.3d 813, 816-17 (9th Cir. 1994) and Cal. Gov’t Code §§ 810-895.) The Court noted 24 that although Plaintiff attempted to distinguish his situation by contending his request for 25 the return or replacement of his property is a different remedy than money damages offered 26 by a state tort claim, the Court was bound by Ninth Circuit authority requiring dismissal of 27 his claim that California prison officials deprived him of his personal property in violation 28 of federal due process. (Id.) 1 Plaintiff has made no attempt to cure this defect of pleading in the FAC, and his Fifth 2 Amendment due process claim is again subject to dismissal for failure to state such a claim. 3 28 U.S.C. § 1915(e)(2); Lopez, 203 F.3d at 1126-27; 28 U.S.C. § 1915A(b). Because it is 4 now clear Plaintiff cannot cure the pleading defects of this claim, the dismissal is without 5 further leave to amend. See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A 6 district court should not dismiss a pro se complaint without leave to amend [pursuant to 28 7 U.S.C. § 1915(e)(2)] unless ‘it is absolutely clear that the deficiencies of the complaint 8 could not be cured by amendment.’”), quoting Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th 9 Cir. 2012). 10 D. First Amendment Access to Courts Claim 11 The Court previously ruled that Plaintiff had failed to state an access to courts claim 12 because he didn’t allege “actual prejudice with respect to contemplated or existing 13 litigation, such as the inability to meet a filing deadline or to present a claim,” resulting in 14 the loss of a “non-frivolous” or “arguable” underlying claim. (ECF No. 9 at 5-6, citing 15 Lewis v. Casey, 518 U.S. 343, 346-48 (1996) and Christopher v. Harbury, 536 U.S. 403, 16 413-14 (2002).) Plaintiff also failed to describe the nature of the underlying claim “as if it 17 were being independently pursued.” (Id. at 6, citing Harbury, 536 U.S. at 417.) 18 Plaintiff attempts to cure those pleading defects by alleging that he has a pending 19 civil case, and that among his lost legal materials is a prison staff complaint, which he 20 needs to show exhaustion of administrative remedies in that case. (ECF No. 10 at 4.) The 21 case referenced, 17cv745-LJO-EPG (E.D. Cal.), is a 42 U.S.C. § 1983 prisoner civil rights 22 action filed by Plaintiff in the Eastern District of California alleging excessive force in 23 violation of the Eighth Amendment, an unreasonable search in violation of the Fourth 24 Amendment, retaliation in violation of the First Amendment, and assault and battery.1 25 26 1 The Court takes judicial notice of that case. See Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 27 2007) (noting that a court “‘may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.’”), quoting Bennett 28 1 The court in that case granted summary judgment against Plaintiff, finding that he 2 had failed to exhaust his administrative remedies because he had failed to appeal the 3 decision to cancel his inmate appeal as untimely. See Fuentes v. Rodriguez, 2019 WL 4 2191333 at *1, *8 (E.D. Cal., May 21, 2019), aff’d, 2020 WL 4963501 (9th Cir. July 21, 5 2020). Plaintiff contended in that case that, rather than file a separate inmate appeal, he re- 6 submitted his inmate appeal No. WSP-0-17-00752 with a copy of the cancellation letter 7 and an explanation as to why the untimely filing should be excused. Id. at *5. While he 8 didn’t have a copy of that re-submission and he never received a response to it, he provided 9 a copy of the prison mail log showing that he mailed it to the appeals office. Id. This, he 10 argued, established a genuine dispute over whether he had failed to exhaust his 11 administrative remedies. Id. at *6. He now predicates his access to courts claim on prison 12 officials’ loss or destruction of his re-submission paperwork, which he contends prejudiced 13 his ability to oppose summary judgment in the other case. (ECF No. 10 at 4.) 14 But it didn’t matter whether Plaintiff submitted that paperwork or the mail log in its 15 stead. The re-submission was “improper[]” under the applicable procedures, so it couldn’t 16 satisfy Plaintiff’s obligation to exhaust his administrative remedies. Fuentes, 2019 WL 17 2191333 at *6. Even accepting as true the allegation that Defendants destroyed the re- 18 submission documents, then, that destruction didn’t deny Plaintiff access to the courts— 19 his own failure to follow the appellate procedures did. See id. (“[T]hat Plaintiff improperly 20 resubmitted the cancelled appeal . . . does not render the existing . . . administrative 21 remedies effectively unavailable.”) Nor can the destruction of books, without any 22 allegation that the destruction caused some actual injury, support the access to courts claim. 23 See Lewis, 518 U.S. at 348 (to state access to courts claim, plaintiff must allege facts 24 showing actual injury arising from lack of access to legal materials). 25 Plaintiff’s access to courts claim is dismissed for failure to state a claim pursuant to 26 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). Watison, 668 F.3d at 1112; Wilhelm, 680 27 F.3d at 1121. It’s now clear that Plaintiff can’t cure the pleading defects of this claim, so 28 this dismissal is without further leave to amend. Rosati, 791 F.3d at 1039. 1 E. Defendant Warden Montgomery 2 Plaintiff seeks to hold Defendant Montgomery, the Warden of Calipatria, liable for 3 negligently failing to train or supervise the Correctional Officer Defendants who allegedly 4 deprived him of his property in violation of the Fifth Amendment’s Due Process Clause. 5 (ECF No. 10 at 8.) Merely holding the role of supervisory official isn’t enough to make 6 that official liable under § 1983. See Iqbal, 556 U.S. at 677 (“[E]ach government official 7 [in a § 1983 suit], his or her own title notwithstanding, is only liable for his or her own 8 misconduct.”) The Court’s prior dismissal Order directed Plaintiff that, to state a § 1983 9 claim based on a failure to train, he must allege that Warden Montgomery aware of a 10 pattern of similar constitutional violations sufficient to put him on “notice that a course of 11 training is deficient in a particular respect.” (ECF No. 9 at 6.) Plaintiff’s FAC lacks any 12 such allegations, so it again fails to allege facts which if proven would support a § 1983 13 claim against Warden Montgomery. 14 Plaintiff’s claim for negligent training or supervision as to Defendant Warden 15 Montgomery is dismissed for failure to state a claim for relief. See 28 U.S.C. 16 § 1915(e)(2)(B)(ii), § 1915A(b); Iqbal, 556 U.S. at 678. And because it’s clear that Plaintiff 17 can’t cure the pleading defects of this claim, the dismissal is without further leave to amend. 18 Rosati, 791 F.3d at 1039. 19 E. Negligence Under California Law 20 Because the Court has dismissed all claims over which it has original jurisdiction, it 21 has discretion decline to exercise supplemental jurisdiction over any state law claims. 28 22 U.S.C. § 1367(c); Sanford v. MemberWorks, Inc., 625 F.3d 550, 561 (9th Cir. 2010) (“[I]n 23 the usual case in which all federal-law claims are eliminated before trial, the balance of 24 factors to be considered under the pendent jurisdiction doctrine . . . will point toward 25 declining to exercise jurisdiction over the remaining state-law claims.”) To the extent the 26 FAC can be construed as including any state law negligence claim, the Court exercises that 27 discretion and dismisses the negligence claim without prejudice for lack of jurisdiction. 28 / / / 1 Conclusion and Order 2 For all the reasons discussed, the Court DISMISSES Plaintiff's First Amended 3 ||Complaint for failing to state a claim upon which relief may be granted and declines to 4 ||exercise supplemental jurisdiction over any state law negligence claim. Because Plaintiff 5 || hasn’t been able to and won’t be able to cure the pleading defects, he doesn’t have further 6 || leave to amend. 7 IT IS SO ORDERED. 8 || Dated: August 19, 2021 (an / A. (4, Wy 9 Hon. Larry A. Burns 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8