1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 CHRISTOPHER JONES, Case No.: 23-cv-529-WQH-VET
Plaintiff, 10 ORDER v. 11 12 COUNTY OF SAN DIEGO and ALTERNATE PUBLIC 13 DEFENDERS OFFICE, 14 Defendants. 15 HAYES, Judge: 16 The matter before the Court is the Motion to Dismiss First Amended Complaint 17 Without Leave to Amend (“Motion to Dismiss”) (ECF No. 30) filed by Defendants County 18 of San Diego and Alternate Public Defender’s Office (collectively, the “County”).1 19 I. BACKGROUND 20 On March 23, 2023, Plaintiff, proceeding pro se, initiated this action by filing a 21 Complaint against Defendants City of San Diego,2 County of San Diego, and Alternate 22 23
24 1 The Motion to Dismiss states that “[t]he County’s Alternate Defender’s Office is not a separately suable 25 entity. As such, this motion is brought on behalf of both named defendants as the ‘County.’” (ECF No. 30 26 at 1 n.1.)
27 2 The City of San Diego has been dismissed from this case. (See ECF No. 11.) 1 Public Defender’s Office (“APD Office”). (ECF No. 1.) Plaintiff filed a Motion for Leave 2 to Proceed In Forma Pauperis, which the Court granted. (See ECF Nos. 2, 5.) 3 On August 11, 2023, the County filed a motion to dismiss. (ECF No. 9.) On February 4 28, 2024, the Court granted the motion to dismiss and dismissed the Complaint without 5 prejudice. (ECF No. 23 at 21.) 6 On March 25, 2024, the Court granted Plaintiff’s request for an extension of time to 7 amend the Complaint. (ECF No. 28.) 8 On May 24, 2024, Plaintiff filed the operative First Amended Complaint (“FAC”). 9 (ECF No. 29, FAC.) 10 On June 14, 2024, the County filed the Motion to Dismiss. (ECF No. 30.) 11 On July 1, 2024, the Court granted Plaintiff’s request for an extension of time to 12 respond to the Motion to Dismiss. (ECF No. 32.) 13 On August 9, 2024, Plaintiff filed an Opposition to the Motion to Dismiss. (ECF No. 14 33.) 15 On August 16, 2024, the County filed a Reply to Plaintiff’s Opposition to Motion to 16 Dismiss. (ECF No. 34.) 17 II. ALLEGATIONS IN THE FIRST AMENDED COMPLAINT 18 In 1995, a jury convicted Plaintiff of second-degree murder following a trial in the 19 San Diego County Superior Court. Plaintiff filed numerous habeas petitions, asserting 20 ineffective assistance of counsel by his appointed counsel, Thomas Kelley (“Kelley”), 21 because Kelley had failed to investigate and present a mental health-based defense at trial. 22 On October 20, 2020, the Honorable Jeffrey T. Miller of the United States District Court 23 for the Southern District of California granted Plaintiff’s federal habeas petition and 24 discharged Plaintiff of “all consequences of his second degree murder conviction.” (FAC 25 ¶ 6; see also Jones v. Cate, Case No. 09-cv-1896-JM-MSB, ECF Nos. 182, 183 (S.D. 26 Cal.).) On February 4, 2021, the San Diego County Superior Court reduced the 27 1 second-degree murder conviction to manslaughter. Plaintiff alleges that he “refused to 2 plead, agree or enter into the State Court record such a guilty plea to manslaughter.” (FAC 3 ¶ 37.) 4 Plaintiff brings his claims against each Defendant “in their individual capacities for 5 monetary and punitive damages, and as policy makers in their official capacities for failure 6 to create and establish policy in the absence of any policy to guard against constitutional 7 violations.” Id. ¶ 4. Plaintiff alleges that “Mr. Kelley violated Plaintiff’s Sixth and 8 Fourteenth Amendment Rights by not functioning as the Counsel guaranteed [to Plaintiff] 9 by the Sixth Amendment, depriving Plaintiff of a fair trial, a trial whose result is reliable.” 10 Id. ¶ 14. Plaintiff alleges: 11 Defendant County of San Diego, by and through the APD Office, had the habit, custom and practice, through the ongoing actions of Counsel Kelley 12 during the many years of his employment and/or term with the APD Office, 13 of: … [f]ailing to ensure and establish procedures, but systematically failed to have systems or established policies in place, and to train and supervise it[s] 14 Attorney[s], to require full and prompt investigations of probative evidence to 15 the defense.… It similarly failed to ensure that Trial Attorney[s] knew and learned of all important information for a case: to provide the means, 16 information and training to determine whether evidence is reliable, including 17 the defendant’s background, education, mental and emotional stability and the like will be relevant…. Throughout this period, 1995 to the present, the APDO 18 and County had no established policies, systems, training or supervision for 19 meeting constitutional standards. All of the customs, policies and failures occurred wit[h] “deliberate indifference” to the rights of criminal defendants, 20 including Plaintiff. 21 Id. ¶¶ 18–21. Plaintiff alleges that the APD Office failed to “train subordinates and as 22 policy makers for the APDO made a deliberate choice to allow subordinates to continue in 23 their customs and practices rather than implement procedural safeguard[s] to prevent 24 constitutional violations.” Id. ¶ 28. 25 Plaintiff alleges as an example another Southern District of California case where a 26 defendant “suffer[ed] loss of his liberty for approximately 20 years” as a “direct result of 27 1 18 separate incidents caused by numerous County employees for over 18 years,” including 2 failures in “investigative functions.” See id. ¶¶ 34–36. Plaintiff alleges that the APD Office 3 “failed to ensure that trial attorneys learn and know of all important information for a case 4 when promptly conducting investigations into their client[s’] backgrounds and mental 5 histories, amongst other duties of care to clients.” Id. ¶ 30. Plaintiff alleges that “[t]hese 6 customs, policy, practices and failures were so closely related to the deprivation of 7 Plaintiff’s rights as to be a moving force that caused his 1995 conviction.” Id. ¶ 32. Plaintiff 8 alleges that “[h]ad Kelley of the APD Office been properly trained and supervised, and had 9 there been proper systems, safeguards, and policies in place, Kelley would have known 10 that his habit and custom of doing things is contrary to his constitutional obligation, and 11 his duty to investigate his client’s background and mental history would have been routine 12 practice.” Id. 13 Plaintiff brings this action pursuant to 42 U.S.C. § 1983 for violation of his Sixth 14 and Fourteenth Amendment rights. 15 III. LEGAL STANDARD 16 Rule 12(b)(6) of the Federal Rules of Civil Procedure permits dismissal for “failure 17 to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In order to state 18 a claim for relief, a pleading “must contain ... a short and plain statement of the claim 19 showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Dismissal under Rule 20 12(b)(6) “is proper only where there is no cognizable legal theory or an absence of 21 sufficient facts alleged to support a cognizable legal theory.” Shroyer v. New Cingular 22 Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010) (citation omitted). 23 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 24 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 25 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 26 “A claim has facial plausibility when the plaintiff pleads factual content that allows the 27 1 court to draw the reasonable inference that the defendant is liable for the misconduct 2 alleged.” Id. (citation omitted). However, “a plaintiff’s obligation to provide the ‘grounds’ 3 of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic 4 recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 5 (alteration in original) (quoting Fed. R. Civ. P. 8(a)). A court is not “required to accept as 6 true allegations that are merely conclusory, unwarranted deductions of fact, or 7 unreasonable inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 8 2001). “In sum, for a complaint to survive a motion to dismiss, the non-conclusory factual 9 content, and reasonable inferences from that content, must be plausibly suggestive of a 10 claim entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 11 2009) (citation omitted). 12 A court ruling on a Rule 12(b)(6) motion to dismiss “must normally convert the 13 12(b)(6) motion into a Rule 56 motion for summary judgment” if it considers evidence 14 outside the pleadings. United States v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003). “A court 15 may, however, consider certain materials—documents attached to the complaint, 16 documents incorporated by reference in the complaint, or matters of judicial notice— 17 without converting the motion to dismiss into a motion for summary judgment.” Id. at 908. 18 IV. DISCUSSION 19 The County moves to dismiss the Complaint on the grounds that Plaintiff’s claims 20 are barred by the statute of limitations, Plaintiff has failed to state a claim for Monell 21 liability, and Plaintiff is not entitled to damages. 22 A. Statute of Limitations 23 1. Plaintiff’s Claims are Untimely 24 The County contends that a two-year statute of limitations applies to 42 U.S.C. 25 § 1983 causes of action and bars Plaintiff’s claims. The County contends that Plaintiff’s 26 claims in this action accrued on October 19, 2020, the date Plaintiff’s habeas petition was 27 1 granted on ineffective assistance of counsel grounds, because this is the date “Plaintiff 2 knew of the existence and source of his claimed injury.” (ECF No. 34 at 2.) 3 Plaintiff contends that he filed this suit in a timely manner because his cause of action 4 did not accrue until February 4, 2021—the date that the San Diego County Superior Court 5 resentenced him. Plaintiff contends that his filing of a complaint on June 21, 2021, in a 6 related prior action fell within the statute of limitations. 7 “A claim may be dismissed [for failure to state a claim] on the ground that it is barred 8 by the applicable statute of limitations only when ‘the running of the statute is apparent on 9 the face of the complaint.’” Von Saher v. Norton Simon Museum of Art at Pasadena, 592 10 F.3d 954, 969 (9th Cir. 2010) (quoting Huynh v. Chase Manhattan Bank, 465 F.3d 992, 11 997 (9th Cir. 2006)). “A complaint cannot be dismissed unless it appears beyond doubt that 12 the plaintiff can prove no set of facts that would establish the timeliness of the claim.” Id. 13 (quoting Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 1206 (9th Cir. 1995)). 14 “Because § 1983 has no specific statute of limitations, federal courts borrow state 15 statute of limitations for personal injury actions…. California’s statute of limitations for 16 personal injury actions is two years.” Wheeler v. City of Santa Clara, 894 F.3d 1046, 1059 17 (9th Cir. 2018) (citations omitted); Lukovsky v. City & County of San Francisco, 535 F.3d 18 1044, 1048 (9th Cir. 2008) (“When, as here, a federal civil rights statute does not include 19 its own statute of limitations, federal courts borrow the forum state’s limitations period for 20 personal injury torts.”). “Although California law determines the length of the limitations 21 period, federal law determines when a civil rights claim accrues[,] ... [or] the date on which 22 the statute of limitations begins to run.” Lukovsky, 535 F.3d at 1048. Under federal law, a 23 claim accrues “when the plaintiff knew or in the exercise of reasonable diligence should 24 have known of the injury [that is the basis of the action] and the cause of that injury.” 25 Bonneau v. Centennial Sch. Dist. No. 28J, 666 F.3d 577, 581 (9th Cir. 2012) (quoting 26 Lukovsky, 535 F.3d at 1050). 27 1 “To bring a § 1983 claim against a local government entity, a plaintiff must plead 2 that a municipality’s policy or custom caused a violation of the plaintiff’s constitutional 3 rights.” Ass’n for L.A. Deputy Sheriffs v. County of Los Angeles, 648 F.3d 986, 992–93 (9th 4 Cir. 2011) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978)). In a Monell 5 claim, the cause of the plaintiff’s injuries is the government entity’s wrongful policy. See 6 Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011). Accordingly, a § 1983 7 claim against a local government entity accrues “when the plaintiff knew or in the exercise 8 of reasonable diligence should have known” of his or her injury and the involvement of the 9 government entity’s alleged wrongful policy in causing the injury. Bonneau, 666 F.3d at 10 581 (quoting Lukovsky, 535 F.3d at 1050); see Wilson v. Hays, 228 F. Supp. 3d 1100, 1112 11 (S.D. Cal. 2017). 12 Plaintiff contends that his cause of action did not accrue until February 4, 2021—the 13 date that the San Diego County Superior Court resentenced him. The Supreme Court has 14 held that a § 1983 claim arising from an unconstitutional conviction or sentence accrues 15 when “the conviction or sentence is reversed, expunged, invalidated, or impugned by the 16 grant of a writ of habeas corpus.” Heck v. Humphrey, 512 U.S. 477, 489 (1994). As relevant 17 here, on October 19, 2020, the Honorable Jeffrey T. Miller issued an order granting 18 Plaintiff’s habeas corpus petition and “discharg[ing Plaintiff] of all consequences of his 19 second degree murder conviction” on the grounds that he “demonstrated that his trial 20 counsel’s failure to conduct an adequate investigation or present a mental-health based 21 defense, was unreasonable.” (FAC, Exh. A at 30, 32); Jones v. Cate, Case No. 09-cv-1896- 22 JM-MSB, ECF No. 182 (S.D. Cal. Oct. 19, 2020).) In the present case, Plaintiff alleges that 23 he was injured by Kelley’s failure to investigate and present a mental health-based defense 24 at his trial and that the APD Office “failed to ensure that trial attorneys learn and know of 25 all important information for a case when promptly conducting investigations into their 26 client[s’] backgrounds and mental histories, amongst other duties of care to clients.” (FAC 27 1 ¶¶ 13, 30.) Thus, when Judge Miller granted his habeas corpus petition, Plaintiff knew or 2 reasonably should have known of his injury that is the basis of this action and the 3 involvement of the County’s alleged wrongful policy that caused the injury. Plaintiff’s 4 contention that his claims did not accrue until the date of his resentencing over three months 5 later is unavailing. In any event, even if Plaintiff’s claims accrued on the date of his 6 resentencing—February 4, 2021—his filing of the Complaint on March 23, 2023, would 7 nevertheless exceed the two-year statute of limitations and be untimely. 8 Plaintiff also contends that the present action is timely because he previously filed 9 “his original Civil Complaint on June 21, 2021, way within the applicable statutory 10 time-frame” in a related prior action. (ECF No. 33 at 3.) Plaintiff alleges in the FAC that 11 on May 3, 2021, he “originally filed with the Court his Civil Rights Complaint against 12 Defendants County of San Diego, Thomas Kelley, City of El Cajon, and the Alternate 13 Public Defender’s Office” (“May 2021 complaint”). (FAC ¶ 8.) The May 2021 complaint 14 asserted claims against the defendants for Kelley’s conduct and vicarious liability for 15 Kelley’s actions. Jones v. County of San Diego, Case No. 21-cv-847-WQH-WVG, ECF 16 No. 1 (S.D. Cal. May 3, 2021) (“Related Action”). Plaintiff alleges in the present FAC that 17 on June 2, 2021, he filed with the Court an application to “voluntarily withdraw[] the 18 complaint [in the Related Action] to refile his First Amended Complaint at a later date.” 19 (FAC ¶ 9); see also Jones v. County of San Diego, Case No. 21-cv-847-WQH-WVG, ECF 20 No. 6 (S.D. Cal. June 2, 2021). Plaintiff alleges that “[s]ince [he] voluntarily requested to 21 have his original Complaint withdrawn, Plaintiff has since lodged, filed and exhausted with 22 those entities, San Diego City and County, and APD-Office, his complaints with those 23 entities[’] claims process.” (FAC ¶ 10.) 24 On September 21, 2022, Plaintiff filed an amended complaint in the Related Action, 25 filing a complaint nearly identical to the original Complaint filed in this case. Compare 26 Jones v. County of San Diego, Case No. 21-cv-847-WQH-WVG, ECF No. 8 (S.D. Cal. 27 1 Sept. 21, 2022), with (ECF No. 1). On September 29, 2022, the Court ordered the Related 2 Action remain closed because Federal Rule of Civil Procedure 41 does not allow Plaintiff 3 to dismiss a case and then attempt to reopen it “when he decides he is ready to litigate his 4 claims.” Jones v. County of San Diego, Case No. 21-cv-847-WQH-WVG, ECF No. 11 at 5 2 (S.D. Cal. Sept. 29, 2022) (citations omitted). The Court stated that if Plaintiff wished to 6 pursue the claims in the amended complaint, he had to complete an initial case form and a 7 new case would be opened. Id. Plaintiff filed the Complaint in this action on March 23, 8 2023. 9 Plaintiff provides no authority to support his contention that his filing of the May 10 2021 complaint in the prior Related Action—which he subsequently voluntarily 11 dismissed—renders the present action timely. Pursuant to Federal Rule of Civil Procedure 12 3, “[a] civil action is commenced by filing a complaint with the court.” Fed. R. Civ. P. 3; 13 see Sain v. City of Bend, 309 F.3d 1134, 1138 (9th Cir. 2002) (“[A] § 1983 action is 14 commenced in federal district court for purposes of the statute of limitations when the 15 complaint is filed.”). In other words, the present case was commenced on the date Plaintiff 16 filed the original Complaint—March 23, 2023. (ECF No. 1.) The date Plaintiff filed the 17 May 2021 complaint in the prior Related Action bears no relevance. See City of S. 18 Pasadena v. Mineta, 284 F.3d 1154, 1157–58 (9th Cir. 2002) (explaining that a voluntary 19 dismissal without prejudice “leaves the situation as if the action never had been filed” and 20 renders “any future lawsuit based on the same claim … an entirely new lawsuit unrelated 21 to the earlier (dismissed) action” (citations omitted)). While Federal Rule of Civil 22 Procedure 15 provides that “[a]n amendment to a pleading relates back to the date of the 23 original pleading when … the law that provides the applicable statute of limitations allows 24 relation back,” Fed. R. Civ. P. 15(c)(1)(A), district courts within the Ninth Circuit have 25 held that complaints filed in separate cases do not “relate back” to complaints in prior cases. 26 See Calloway v. Rangel, No. 1:12-cv-00193-GSA-PC, 2014 WL 11696681, at *1 (E.D. 27 1 Cal. Oct. 30, 2014) (dismissing the plaintiff’s § 1983 action as barred by the statute of 2 limitations where “the present case was opened as a new and separate case” and “there 3 [was] no authority supporting Plaintiff’s argument that the present case relates back to his 4 prior case for purposes of the statute of limitations”); Nickelson v. United States, No. 5 14-3654 (AJW), 2016 WL 6495358, at *2 (C.D. Cal. Nov. 2, 2016) (“Nor does a complaint 6 in a subsequent case relate back to a complaint filed in a previously dismissed case.” (citing 7 O’Donnell v. Vencor Inc., 466 F.3d 1104, 1111 (9th Cir. 2006))). The date Plaintiff filed 8 the May 2021 complaint in the Related Action is thus immaterial to the statute of 9 limitations analysis for the present action. 10 In sum, Plaintiff’s § 1983 cause of action accrued and the statute of limitations began 11 to run on October 19, 2020, when Judge Miller granted Plaintiff’s habeas corpus petition. 12 Plaintiff filed the present case on March 23, 2023. Thus, Plaintiff’s action is untimely, 13 unless Plaintiff is entitled to tolling of the two-year statute of limitations. 14 2. Equitable Tolling 15 The County contends that Plaintiff is not entitled to equitable tolling because his 16 failure to timely file the Complaint was unreasonable considering that Plaintiff had already 17 filed the same complaint in September 2022; his alleged mental disabilities do not meet the 18 standard for equitable relief in a civil case and given his current capabilities listed in the 19 record; and any alleged confusion about the law or time requirements, specifically as to 20 exhaustion of state claims, is not a proper basis for equitable tolling. 21 Plaintiff does not explicitly address whether tolling applies in this case. In liberally 22 construing the FAC, the Court considers whether Plaintiff has adequately alleged 23 application of equitable tolling. 24 California state law applies to determine whether the statute of limitations for 25 Plaintiff’s § 1983 claims was tolled. See Bd. of Regents of Univ. of State of N.Y. v. Tomanio, 26 446 U.S. 478, 485–86 (1980); Lucchesi v. Bar-O Boys Ranch, 353 F.3d 691, 694 (9th Cir. 27 1 2003). Under California law, a plaintiff must meet three conditions to equitably toll a 2 statute of limitations: (1) he must have diligently pursued his claim; (2) his situation must 3 be the product of forces beyond his control; and (3) the defendants must not be prejudiced 4 by the application of equitable tolling. See Hull v. Cent. Pathology Serv. Med. Clinic, 28 5 Cal. App. 4th 1328, 1336 (Ct. App. 1994); Addison v. State of California, 21 Cal. 3d 313, 6 319 (1978). 7 Plaintiff has not pled any facts that would explain what “forces beyond his control” 8 prevented him from filing this action earlier—specifically such forces that occurred 9 between the date the statute of limitations had run and the date he filed the Complaint in 10 March 2023. Instead, as noted above, Plaintiff alleges that he filed a complaint asserting 11 the same claims alleged in this action when he filed the May 2021 complaint and the 12 September 2022 amended complaint in the dismissed Related Action. Plaintiff did not file 13 the present Complaint until March 23, 2023. Plaintiff has not adequately alleged the 14 conditions required for equitable tolling under California law. Plaintiff has not alleged or 15 asserted any other basis to toll the statute of limitations. 16 Even if Plaintiff had asserted tolling based upon mental disabilities as the County 17 suggests, see ECF No. 30-1 at 16, Plaintiff has not adequately alleged incapacity as 18 provided under California Civil Procedure Code Section 352(a) because he has not alleged 19 that he is “incapable of caring for his property or transacting business or understanding the 20 nature or effects of his acts.” Alcott Rehab. Hosp. v. Superior Ct., 93 Cal. App. 4th 94, 101 21 (2001) (providing that in order to invoke Section 352(a), a plaintiff must show that he is 22 “incapable of caring for his property or transacting business or understanding the nature or 23 effects of his acts”); Cal. Civ. Proc. Code § 352(a) (tolling the limitation period during the 24 “time of disability”); Johnson v. Lucent Techs., Inc., 653 F.3d 1000, 1010 (9th Cir. 2011) 25 (rejecting the plaintiff’s equitable tolling based on a mental disability argument at the 26 motion to dismiss stage “in light of Johnson’s proven ability to advance and protect his 27 1 legal interests” in initiating and participating in other lawsuits); see Est. of Stern v. Tuscan 2 Retreat, Inc., 725 Fed. App’x 518, 521 (9th Cir. 2018) (stating that the key inquiry is 3 whether the plaintiff was “sufficiently aware of the nature or effects of [his] acts to be able 4 to comprehend such business transactions as the hiring of an attorney and the instigation 5 of a legal action” (quoting Hsu v. Mt. Zion Hosp., 259 Cal. App. 2d 562, 575 (Ct. App. 6 1968))). 7 Similarly, Plaintiff’s § 1983 claims were not tolled during the period that he “lodged, 8 filed and exhausted … his complaints” with the “claims process[es]” for “San Diego City 9 and County, and APD-Office” (FAC ¶ 10), as he was not required to exhaust his claims 10 prior to the filing of the Complaint because he was not a prisoner at the time he filed the 11 Complaint. See 42 U.S.C. § 1997e(a) (“No action shall be brought with respect to prison 12 conditions under section 1983 … by a prisoner confined in any jail, prison, or other 13 correctional facility until such administrative remedies as are available are exhausted.”); 14 Talamantes v. Leyva, 575 F.3d 1021, 1023 (9th Cir. 2009) (“[A] person not ‘incarcerated 15 or detained’ in this manner at the time the action is filed is not a ‘prisoner’ for the purposes 16 of the statute, and therefore, not subject to the exhaustion requirement.”); Muhammad v. 17 Hill, No. CV 17-01137-VBF (PLA), 2017 WL 6520635, at *6 (C.D. Cal. Oct. 24, 2017) 18 (finding that the plaintiff was “not entitled to equitable tolling for his federal civil rights 19 claims” during the time he pursued “a Government Tort claim with the Los Angeles County 20 Sheriff’s Department” because he was “not a prisoner at the time” and thus not subject to 21 an exhaustion requirement), adopted by No. CV 17-01137-VBF (PLA), 2017 WL 6512216 22 (C.D. Cal. Dec. 18, 2017).3 23
24 3 The Court acknowledges that “[v]arious California and federal courts diverge on the question of whether 25 filing a government claim tolls the time for filing a § 1983 claim.” Medeiros v. City of Palo Alto, No. 26 17-CV-05913-LHK, 2019 WL 2568861, at *6 (N.D. Cal. June 21, 2019) (citing McMahon v. Albany Unified Sch. Dist., 104 Cal. App. 4th 1275, 1292 (Ct. App. 2002); Lucchesi, 353 F.3d at 693, 696). In any 27 event, even if Plaintiff’s § 1983 claims were tolled during the period that his California Tort Claims Act 1 Accordingly, it is clear from the face of the FAC that Plaintiff’s § 1983 claims are 2 barred by the statute of limitations. 3 B. Monell Liability 4 The County contends that Plaintiff does not allege a custom or practice as required 5 to show Monell liability because he has only alleged a singular incident. The County 6 contends that the other case Plaintiff cites is insufficient as it was filed nearly a year after 7 Plaintiff’s habeas petition was granted, and thus could not have provided the County with 8 notice of the alleged constitutional violations at the time of the events alleged in the FAC. 9 Plaintiff’s Opposition brief does not refute the County’s contentions concerning his 10 failure to allege a custom or practice.4 Instead, Plaintiff devotes much of his Opposition 11 12 13 (“CTCA”) claims were pending, his § 1983 claims would nevertheless have been untimely. The Court 14 grants the County’s request to take judicial notice of Plaintiff’s claim against the County (ECF No. 30-4 at 10–15), the County’s Notice of Rejection of Claim (ECF No. 30-4 at 16–19), Plaintiff’s request to file 15 a late claim (ECF No. 30-4 at 20–22), and the County’s Notice of Rejection of Claim (ECF No. 30-4 at 23–25). (ECF No. 30-3 at 3.) See Velez v. Tehama Cnty. Sheriff’s Dep’t, No. 17-960 WBS KJN, 2018 WL 16 746471, at *1 n.1 (E.D. Cal. Feb. 6, 2018) (taking judicial notice of the plaintiffs’ CTCA claims “because judicial notice may be taken of records of state administrative and judicial agencies, including 17 governmental claim submissions and responses” (citing Mack v. S. Bay Beer Distribs., Inc., 798 F.2d 18 1279, 1282 (9th Cir. 1986), abrogated on other grounds by Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104 (1991); Clarke v. Upton, 703 F. Supp. 2d 1037, 1042 (E.D. Cal. 2010))). These documents 19 reveal that Plaintiff first filed his CTCA claims with the County on June 21, 2021, and the County’s final notice of rejection of his claims was issued on October 26, 2021. Thus, the statute of limitations for 20 Plaintiff’s § 1983 claims would have been tolled for, at most, 128 days during the pendency of his CTCA claims. Plaintiff, however, did not file the Complaint in this case until 155 days after the statute of 21 limitations expired on October 19, 2022. In other words, Plaintiff’s Complaint would have been untimely 22 even if he were eligible for a 128-day tolling period during the time his CTCA claims were pending.
23 4 The County contends in its Reply brief that “[b]ecause Plaintiff did not address his Monell claim in his opposition, this Court should find that Plaintiff conceded that the Monell claim should be dismissed.” 24 (ECF No. 34 at 4.) Given Plaintiff’s pro se status, the Court declines to find that Plaintiff’s omission constitutes an implicit concession to the dismissal of his Monell claims. See Prado v. Gastelo, No. 25 2:21-cv-05057-JAK (AFM), 2022 WL 20581969, at *5 (C.D. Cal. Mar. 24, 2022) (declining to find that 26 a pro se plaintiff had abandoned his excessive force claim despite his “fail[ure] to address the grounds raised in the Motion” in his opposition brief in part because “a document filed pro se is ‘to be liberally 27 construed’” (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007))). 1 brief to contending that he can assert a claim for “legal malpractice” against Kelley, who 2 is not a defendant in this action. (See ECF No. 33 at 4–6.) Plaintiff contends that “he does 3 in fact have a meritorious claim against Attorney Kelley when filed in the correct 4 jurisdiction.” Id. at 6. 5 1. Plaintiff Does Not Sufficiently Allege Monell Liability 6 42 U.S.C. § 1983 “creates a private right of action against individuals who, acting 7 under color of state law, violate federal constitutional or statutory rights.” Devereaux v. 8 Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001); see 42 U.S.C. § 1983 (providing a cause of 9 action against “[e]very person who, under color of any statute, ordinance, regulation, 10 custom, or usage, of any State ... subjects, or causes to be subjected, any citizen ... to the 11 deprivation of any rights, privileges, or immunities secured by the Constitution and 12 laws ....”). “The purpose of § 1983 is to deter state actors from using the badge of their 13 authority to deprive individuals of their federally guaranteed rights and to provide relief to 14 victims if such deterrence fails.” Wyatt v. Cole, 504 U.S. 158, 161 (1992). Section 1983 “is 15 not itself a source of substantive rights, but merely provides a method for vindicating 16 federal rights elsewhere conferred.” Graham v. Connor, 490 U.S. 386, 393–94 (1989) 17 (quotations and citations omitted). A government entity may not be held vicariously liable 18 for the unconstitutional acts of its employees under a theory of respondeat superior in a 19 § 1983 claim. See AE ex rel. Hernandez v. County of Tulare, 666 F.3d 631, 636 (9th Cir. 20 2012). “A government entity may not be held liable under 42 U.S.C. § 1983, unless a 21 policy, practice, or custom of the entity can be shown to be a moving force behind a 22 violation of constitutional rights.” Dougherty, 654 F.3d at 900 (citing Monell, 436 U.S. at 23 694). “The custom must be so ‘persistent and widespread’ that it constitutes a ‘permanent 24 and well settled city policy.’ … Liability for improper custom may not be predicated on 25 isolated or sporadic incidents; it must be founded upon practices of sufficient duration, 26 frequency and consistency that the conduct has become a traditional method of carrying 27 1 out policy.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996) (quoting Monell, 436 U.S. 2 at 691). 3 To allege a Monell claim based upon a failure to train theory, a plaintiff must show 4 that the failure to train amounts to “deliberate indifference to the rights of persons with 5 whom the [untrained employees] come into contact.” Connick v. Thompson, 563 U.S. 51, 6 61 (2011) (alterations in original) (citation omitted). “‘[D]eliberate indifference’ is a 7 stringent standard of fault, requiring proof that a municipal actor disregarded a known or 8 obvious consequence of his action.” Id. (alterations in original) (citation omitted). It is only 9 “when city policymakers are on actual or constructive notice that a particular omission in 10 their training program causes city employees to violate citizens’ constitutional rights, the 11 city may be deemed deliberately indifferent if the policymakers choose to retain that 12 program.” Id. Consequently, “[a] pattern of similar constitutional violations by untrained 13 employees is ‘ordinarily necessary’ to demonstrate deliberate indifference for purposes of 14 failure to train.” Id. at 62 (quoting Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 15 397, 409 (1997)). 16 The Court of Appeals for the Ninth Circuit had historically held that a plaintiff 17 alleging a Monell claim need only plead “a bare allegation that government officials’ 18 conduct conformed to some unidentified government policy or custom.” Hernandez, 666 19 F.3d at 637. However, following Iqbal and Twombly, the Court of Appeals held that Monell 20 claims must contain sufficient allegations to give fair notice to the opposing party and 21 “must plausibly suggest an entitlement to relief, such that it is not unfair to require the 22 opposing party to be subjected to the expense of discovery and continued litigation.” Id. 23 (quoting Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011)). 24 In this case, Plaintiff alleges that the County failed to establish policies to meet 25 constitutional standards, train and supervise attorneys, require “full and prompt 26 investigations of probative evidence to the defense,” and “ensure that Trial Attorney[s] 27 1 knew and learned of all important information for a case.” (FAC ¶¶ 19–20.) Plaintiff alleges 2 that “Mr. Kelley’s own words, make[] clear that the APD Office was, as a matter of policy, 3 deliberately indifferent to the constitutional rights of defendants in serious felony cases 4 long before Plaintiff was tried and convicted.” Id. ¶ 27. Plaintiff cites to Alter ex rel. Alter 5 v. County of San Diego, 635 F. Supp. 3d 1048 (S.D. Cal. 2022), to allege that his experience 6 was not an “isolated or sporadic incident” and to support his allegation that the County had 7 actual knowledge of the alleged constitutional violations and therefore maintained a policy 8 of inaction. Id. ¶¶ 34–36. The Alter plaintiff alleged that when his prison term concluded, 9 he was “erroneously committed” to a state hospital as a “mentally disordered offender” 10 (“MDO”). 635 F. Supp. 3d at 1052. The plaintiff alleged that the County “had a pervasive 11 practice and custom of failing to ensure that [the County’s] attorneys who were assigned 12 to represent MDO clients review the requisite MDO statutes ... to determine whether their 13 clients were eligible for involuntary commitment under the MDO law.” Id. at 1058. The 14 plaintiff in Alter alleged a County custom or practice of attorneys not checking whether 15 their client’s conviction fell within the MDO statute “in preparing for MDO hearings.” Id. 16 at 1059. Here, Plaintiff alleges the County failed to train or establish a policy or custom 17 relating to attorney investigations, specifically as the investigation relates to a 18 mental-health defense at trial. Plaintiff’s Monell claim is too dissimilar from the alleged 19 Monell conduct in Alter to show the County’s actual knowledge of the alleged 20 constitutional violations. Alter does not adequately support Plaintiff’s assertion that he 21 sufficiently alleged a “persistent and widespread” custom or practice. Monell, 436 U.S. at 22 691. Moreover, the complaint in Alter was filed on September 30, 2021, and the Alter 23 decision ruling on the motion to dismiss was issued on October 18, 2022. Id. at 1051. The 24 Alter complaint and motion to dismiss ruling occurred well after Plaintiff’s habeas petition 25 was granted and the events of the present case. The County could not have had actual or 26 constructive notice of the facts alleged in Alter at the time of the events alleged in this case. 27 1 Besides referring to Alter, Plaintiff does not provide nonconclusory allegations that 2 any custom, policy, or inaction was “so ‘persistent and widespread’ that it constitutes a 3 ‘permanent and well settled [County] policy.’” Trevino, 99 F.3d at 918 (quoting Monell, 4 436 U.S. at 691). Plaintiff’s allegations add up to no more than an “isolated or sporadic 5 incident[].” Id. Accordingly, Plaintiff’s allegations are insufficient to allege a claim for 6 Monell liability for improper custom, practice, or failure to train. See Saved Mag. v. 7 Spokane Police Dep’t, 19 F.4th 1193, 1201 (9th Cir. 2021). 8 2. Plaintiff’s Allegations Against Kelley Cannot Support His Monell Claims Against the County 9
10 Plaintiff contends that he is “entitled to recover damages from Attorney Kelley” and 11 that the elements of a legal malpractice action against Kelley “are or can be easily met.” 12 (ECF No. 33 at 5.) Plaintiff contends that “he does in fact have a meritorious claim against 13 Attorney Kelley when filed in the correct jurisdiction.” Id. at 6. 14 The County contends that “public defenders are generally not state actors for 15 purposes of civil rights actions.” (ECF No. 34 at 3.) The County contends that any state-law 16 legal malpractice claim against Kelley is time barred. The County contends that Plaintiff 17 cannot establish his “actual innocence” as would be required for him to bring a civil 18 malpractice action against Kelley. Id. at 4. 19 As the County points out, Kelley “is not a party to this [§ 1983] action” against the 20 County. Id. at 3. To the extent Plaintiff intends to assert that the County is vicariously liable 21 for Kelley’s actions under § 1983, Plaintiff is foreclosed from relying upon such a theory. 22 As the Court stated above, “a municipality cannot be held liable under § 1983 on a 23 respondeat superior theory.” Huffman v. Lindgren, 81 F.4th 1016, 1021 (9th Cir. 2023) 24 (quoting Monell, 436 U.S. at 691); see Hernandez, 666 F.3d at 636. 25 Additionally, as the Court noted when dismissing Plaintiff’s claims in the Related 26 Action, “a public defender does not act under color of state law when performing a lawyer’s 27 1 traditional functions as counsel to a defendant in a criminal proceeding.” See Jones v. 2 County of San Diego, Case No. 21-cv-847-WQH-WVG, ECF No. 4 at 4 (S.D. Cal. May 3 10, 2021) (quoting Polk County v. Dodson, 454 U.S. 312, 325 (1981)). Thus, any claim 4 that Plaintiff attempts to assert against Kelley that “arises from Kelley’s alleged conduct 5 while performing the traditional functions of a lawyer as counsel to Plaintiff in a criminal 6 case … is not actionable under § 1983.” Id. at 5. Instead, “[a]ny claim against Kelley for 7 legal malpractice is governed by California state law and is a claim for which ‘there exists 8 no independent basis of federal jurisdiction.’” Id. (quoting Aragon v. Federated Dep’t 9 Stores, Inc., 750 F.2d 1447, 1458 (9th Cir. 1985)). In other words, to the extent Plaintiff 10 intends to base his § 1983 claims against the County upon his allegations of Kelley’s 11 purported malpractice, such a theory is futile.5 12 C. Incarceration-Related Damages 13 The County contends that Plaintiff is not entitled to damages for his incarceration 14 because “his second-degree murder conviction was reduced to manslaughter, he was 15 re-sentenced to time served, and his parole was terminated.” (ECF No. 30-1 at 20.) The 16 County contends that Plaintiff’s incarceration was caused by the now-manslaughter 17 conviction instead of the second-degree murder conviction, and he cannot recover any 18 incarceration-related damages pursuant to Taylor v. County of Pima, 913 F.3d 930 (9th Cir. 19 2019). 20 21 22 23
24 5 In light of the Court’s findings above, as well as the fact that Kelley is not a defendant in this action, the 25 Court need not address the County’s contention that Plaintiff’s prospective legal malpractice claim against 26 Kelley would be time-barred under California Civil Procedure Code Section 340.6(a). The Court similarly does not address the County’s contention that Plaintiff cannot “‘obtain relief from the judgment of 27 conviction and prove his actual innocence’ in a later civil malpractice action.” (ECF No. 34 at 4.) 1 In his Opposition brief, Plaintiff “concedes that … he may not recover damages from 2 the County.”6 (ECF No. 33 at 4.) Thus, as Plaintiff acknowledges, even if he had adequately 3 alleged his Monell claims, he cannot recover damages related to his incarceration.7 4 D. Punitive Damages 5 The County contends that Plaintiff is statutorily barred from recovering punitive 6 damages against the County. 7 In his Opposition brief, Plaintiff “concedes that … he may not recover damages from 8 the County.” (ECF No. 33 at 4.) Accordingly, as Plaintiff recognizes, the County cannot 9 be held liable for punitive damages based on the claims raised in the FAC.8 10 E. Leave to Amend 11 The County contends that the Court should dismiss Plaintiff’s claims with prejudice 12 because “amendment would be futile” and “Plaintiff has failed to cure the deficiencies in 13 the original complaint.” (ECF No. 30-1 at 21.) The County contends that, despite 14 previously receiving leave to amend, Plaintiff “offered only a minimally edited amended 15 16 17 18 6 Plaintiff contends that, instead, “[Plaintiff is] in fact entitled to recover damages from Attorney Kelley.” 19 Id. As previously noted, Kelley is not a defendant in this action. Furthermore, for the reasons discussed above, Plaintiff’s malpractice allegations against Kelley cannot support a § 1983 claim against the County. 20 7 Even if Plaintiff had contended that he could recover damages related to his incarceration, as the Court 21 noted in its prior Order dismissing the Original Complaint, such an argument would be futile. (See ECF 22 No. 23 at 14–17 (“To the extent that Plaintiff intended to bring his § 1983 claims based upon the 2021 conviction, such a claim is not permitted as that conviction remains valid and he ‘may not state a claim if 23 a judgment in his favor “would necessarily imply the invalidity of his [2021] conviction or sentence.”’” (quoting Taylor, 913 F.3d at 935)).) 24 8 Even if Plaintiff had contended that he could recover punitive damages against the County, as the Court 25 noted in its prior Order dismissing the Original Complaint, such an argument would be meritless. (See 26 ECF No. 23 at 17 (explaining that, “under California law, a public entity is not liable for punitive damages,” and “[p]unitive damages are not available against municipal entities for § 1983 claims” (citing 27 Cal. Gov. Code § 818; City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981))).) 1 pleading that did not cure any of the fatal defects, in particular, that his claims are too late.” 2 Id. 3 Plaintiff requests that the Court “adopt” the ruling in its prior Order wherein it 4 “Dismiss[ed] Plaintiff’s Complaint Without Prejudice.” (ECF No. 33 at 6.) 5 Federal Rule of Civil Procedure 15 mandates that the court should “freely give” 6 leave to amend “when justice so requires.” Fed. R. Civ. P. 15(a)(2). “This policy is to be 7 applied with extreme liberality.” Eminence Cap., LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 8 (9th Cir. 2003) (quotation omitted). In determining whether to allow an amendment, a court 9 considers whether there is “undue delay,” “bad faith,” “undue prejudice to the opposing 10 party,” or “futility of amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962). “Not all of 11 the [Foman] factors merit equal weight.... [I]t is the consideration of prejudice to the 12 opposing party that carries the greatest weight.” Eminence Cap., 316 F.3d at 1052 (citation 13 omitted). “The party opposing amendment bears the burden of showing prejudice.” DCD 14 Programs, Ltd. v. Leighton, 833 F.2d 183, 187 (9th Cir. 1987). “Absent prejudice, or a 15 strong showing of any of the remaining Foman factors, there exists a presumption under 16 Rule 15(a) in favor of granting leave to amend.” Eminence Cap., 316 F.3d at 1052. “[T]he 17 grant or denial of an opportunity to amend is within the discretion of the District Court ….” 18 Foman, 371 U.S. at 182. “[I]f the plaintiff has previously amended his complaint, the 19 court’s ‘discretion to deny leave to amend is particularly broad.’” Cantu v. Tapestry, Inc., 20 697 F. Supp. 3d 989, 992 (S.D. Cal. 2023) (quoting Salameh v. Tarsadia Hotel, 726 F.3d 21 1124, 1133 (9th Cir. 2013)). “[L]eave to amend need not be given if a complaint, as 22 amended, is subject to dismissal.” Moore v. Kayport Package Express, Inc., 885 F.2d 531, 23 538 (9th Cir. 1989). “[W]e have held that a district court does not abuse its discretion in 24 denying a motion to amend where the movant presents no new facts but only new theories 25 and provides no satisfactory explanation for his failure to fully develop his contentions 26 originally.” Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995); see also Boehm v. 27 1 Shemaria, 478 F. App’x 457, 457 (9th Cir. 2012). When amendment would be futile, the 2 district court need not grant leave to amend. See Carrico v. City & County of San 3 Francisco, 656 F.3d 1002, 1008 (9th Cir. 2011); Gompper v. VISX, Inc., 298 F.3d 893, 898 4 (9th Cir. 2002). “Amendment is futile when a claim is clearly time barred.” Del Toro v. 5 360 P’ship LP, No. CV 21-1216-JAK (JPR), 2021 WL 5050057, at *1 (C.D. Cal. Nov. 1, 6 2021) (collecting cases). 7 Here, it is clear from the face of the FAC that Plaintiff’s Monell claims are barred 8 by the statute of limitations. As explained above, Plaintiff’s filing of his prior Related 9 Action does not render the present action timely. Nor do the assertions in his Opposition 10 brief regarding Kelley’s alleged malpractice support a Monell claim against the County or 11 avoid the application of the statute of limitations. Because there is no amendment that can 12 overcome the statute of limitations bar in this matter, granting leave to amend would be 13 futile. See Doe #1 M.L. v. San Bernardino Sheriff Dep’t, ___ F. Supp. 3d ___, EDCV 24- 14 758-KK-SHKx, 2024 WL 4511208, at *5 (C.D. Cal. Oct. 15, 2024) (finding that 15 amendment would be futile where the plaintiff’s claim was barred by the statute of 16 limitations and the plaintiff had “failed to cure the deficiencies” in her Monell claim that 17 were “previously identified by the Court”); Stroud v. County of San Diego, No. 18-CV-515 18 JLS (MDD), 2020 WL 4500630, at *6 (S.D. Cal. Aug. 5, 2020) (dismissing claims with 19 prejudice where the pro se plaintiff “[could not] possibly cure his claims against [the 20 defendants] as the statute of limitations ha[d] run”); see also Belanus v. Clark, 796 F.3d 21 1021, 1027 (9th Cir. 2015) (holding that “[t]he district court properly dismissed [the 22 plaintiff’s] complaint without leave to amend for failure to state a cause of action upon 23 which relief could be granted” because “[b]ased on all the materials [the plaintiff] 24 submitted to the district court, it [was] clear that no amendment could overcome the statute 25 of limitations bar.”). 26 For the reasons stated above, the Court dismisses the FAC without leave to amend. 27 CONCLUSION 2 IT IS HEREBY ORDERED that the Motion to Dismiss (ECF No. 30) is granted. 3 || The FAC is dismissed without leave to amend. The Clerk of the Court shall issue judgment 4 close this case. 5 ||Dated: January 21, 2025 BME: ie Z. Ma 6 Hon. William Q. Hayes 7 United States District Court 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 22 28 23-cv-529-WQH-VET