Mitchell v. Bennett

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KENYATTA QUINN MITCHELL Case No.: 3:22-cv-01011-DMS-RBB CDCR # BC0837, 12 ORDER: Plaintiff, 13 vs. (1) SETTING ASIDE JUDGMENT 14 [ECF No. 14];

15 PAUL BENNETT, Chula Vista Parole (2) VACATING AND AMENDING IN 16 Agent; JANE DOE, Chula Vista Parole PART ORDER DISMISSING 17 Agent; CLAUDIA PLASCENCIA, SECOND AMENDED COMPLAINT District Attorney; BONNIE DUMANIS, PURSUANT TO FED. R. CIV. P. 60(b) 18 District Attorney; PATRICIA TAITANO [ECF No. 13]; and 19 VALDOVINOS, San Diego Public Defender; ANGEL NUNEZ, Probation (3) DISMISSING SECOND 20 Officer; BETHANY HOGGE, Probation AMENDED COMPLAINT 21 Officer, PURSUANT TO 28 U.S.C. § 1915(e)(2) and 1915A(b)(1) [ECF No. 8] 22 Defendants. 23 24 Kenyatta Quinn Mitchell (“Plaintiff” or “Mitchell”), an inmate currently 25 incarcerated at Wasco State Prison (“WSP”), filed a Complaint (“Compl.”) pursuant to 42 26 U.S.C. § 1983 and a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. 27 § 1915(a), on July 12, 2022. See ECF Nos. 1–2. Then, on August 22, 2022, Mitchell filed 28 a First Amended Complaint (“FAC”), ECF No. 3, and on October 11, 2022, he filed a 1 Motion for Leave to File an Amended Complaint, and a Motion to Appoint Counsel. See 2 ECF Nos. No. 5–6. 3 On October 21, 2022, the Court granted Mitchell’s IFP motion, denied his motion to 4 appoint counsel without prejudice, denied his motion to file an amended complaint as moot, 5 and dismissed the FAC because it was filed beyond the statute of limitations. ECF No. 7. 6 Mitchell was given forty-five (45) days to file a Second Amended Complaint (“SAC”) 7 which cured the pleading deficiencies outlined in the Court’s Order. Id. 8 On November 22, 2022, Mitchell filed an SAC. ECF No. 8. The Court dismissed the 9 SAC without leave to amend on January 12, 2023, because Mitchell’s Fifth and Fourteenth 10 Amendment claims in Counts One and Two were filed beyond the statute of limitations, 11 and his Eighth Amendment claim did not state a Constitutional violation. ECF No. 13. 12 Because the Court has determined its January 12, 2023 Order contains an error, the Court 13 VACATES its January 12, 2023 judgment, VACATES and AMENDS IN PART its 14 January 12, 2023 dismissal Order, DISMISSES Mitchell’s Fifth and Fourteenth 15 Amendment claims pursuant to 28 U.S.C. § 1915(e)(2) and 1915A(b)(1) without leave to 16 amend, and DISMISSES his Eighth Amendment claim pursuant to 28 U.S.C. § 1915(e)(2) 17 and 1915A(b)(1) with leave to amend. 18 I. Rule 60(b) 19 Rule 60(b) of the Federal Rules of Civil Procedure permits the Court to grant relief 20 from a final judgment or order for “mistake, inadvertence, surprise, or excusable neglect,” 21 or “any other reason that justifies relief.” Fed. R. Civ. P. 60(b)(1)&(6). The Ninth Circuit 22 has held that “[t]he district court has discretion to correct a judgment for mistake or 23 inadvertence, either on the part of counsel or the court itself.” Fidelity Federal Bank, FSB 24 v. Durga Ma Corp., 387 F.3d 1021, 1024 (9th Cir. 2004) (citing Kingvision Pay-Per-View 25 Ltd. v. Lake Alice Bar, 168 F.3d 347, 350 (9th Cir. 1999)); see also Limpin v. McSeveney, 26 No. 16-cv-02351-AJB-BLM, 2022 WL 10198819, at *1 (S.D. Cal. Oct. 17, 2022) (citing 27 Fidelity Federal Bank, FSB, 387 F.3d at 1024)). Rule 60(b)(1) has been interpreted broadly 28 to include judicial errors of law. Kemp v. United States, __U.S. __, 142 U.S. 1856, 1865 1 (2022). Because the Court has discovered an error in its January 12, 2023 dismissal Order, 2 it may correct the dismissal Order and judgment pursuant to Rule 60(b) on its own motion. 3 Id. 4 II. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A 5 A. Standard of Review 6 As with his FAC, because Mitchell is a prisoner and is proceeding IFP, his 7 Complaint requires a pre-answer screening pursuant to 28 U.S.C. § 1915(e)(2) and 8 § 1915A(b). Under these statutes, the Court must sua sponte dismiss a prisoner’s IFP 9 complaint, or any portion of it, which is frivolous, malicious, fails to state a claim, or seeks 10 damages from defendants who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 11 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 12 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of 13 [screening] is ‘to ensure that the targets of frivolous or malicious suits need not bear the 14 expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) 15 (citations omitted). 16 “The standard for determining whether a plaintiff has failed to state a claim upon 17 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 18 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 19 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 20 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 21 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 22 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted 23 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 24 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 25 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 26 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 27 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief 28 [is] ... a context-specific task that requires the reviewing court to draw on its judicial 1 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, 2 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 3 standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 4 B. 42 U.S.C. § 1983 5 Section 1983 is a “vehicle by which plaintiffs can bring federal constitutional and 6 statutory challenges to actions by state and local officials.” Anderson v. Warner, 451 F.3d 7 1063, 1067 (9th Cir. 2006). To state a claim under section 1983, a plaintiff must allege two 8 essential elements: (1) that a right secured by the Constitution or laws of the United States 9 was violated and (2) that the alleged violation was committed by a person acting under the 10 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frey, 789 F.3d 1030, 11 1035‒36 (9th Cir. 2015). 12 C. Analysis 13 In its October 21, 2022 dismissal Order, the Court warned Mitchell that his SAC 14 must be complete in itself without reference to his original pleading and that any 15 Defendants not named and any claims not re-alleged in the SAC would be considered 16 waived. See Order dated Oct. 21, 2022, ECF No. 7; S.D. CAL. CIVLR 15.1; Hal Roach 17 Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n 18 amended pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 19 (9th Cir. 2012) (noting that claims dismissed with leave to amend which are not re-alleged 20 in an amended pleading may be “considered waived if not repled.”). Mitchell’s SAC, 21 however, contains little or no factual allegations. It consists of vague allegations of 22 wrongful conduct, arguments why the Court’s dismissal on statute of limitations grounds 23 is incorrect, and a conclusory statement that his Eighth Amendment rights were violated 24 by the imposition of an excessive fine. See ECF No. 8 at 4–6. 25 1. Statute of Limitations: Counts One and Two 26 In its October 21, 2022 dismissal Order, the Court explained to Mitchell that his 27 claims were barred by the statute of limitations unless he could establish he was entitled to 28 equitable tolling. See ECF No. 7 at 6–8. California’s statute of limitations for personal 1 injury actions is two years, and under California law the statute of limitations for prisoners 2 serving less than a life sentence is tolled for two years. Jones v. Blanas, 393 F.3d 918, 927 3 (9th Cir. 2004) (citing CAL. CIV. PROC. CODE § 335.1); CAL. CIV. PROC. CODE § 352.1(a); 4 Johnson v. California, 207 F.3d 650, 654 (9th Cir. 2000), overruled on other grounds, 543 5 U.S. 499 (2005). Mitchell’s claims in his FAC arose out of the circumstances of his arrest 6 which occurred “between July 20 [and] 30th, 2016,” and therefore it was clear from the 7 face of the FAC that he was not a prisoner at the time of the alleged Constitutional 8 violations. The Court thus concluded he was not entitled to the tolling provisions of 9 § 352.1(a). FAC, ECF No. 3 at 8; ECF No. 7 at 6–8. Because the last event detailed by 10 Mitchell in his FAC occurred on July 31, 2016, the statute of limitations for his claims 11 expired at the latest on July 31, 2018. See ECF Nos. 1, 3. The Court further explained to 12 Mitchell that even if he was entitled to the two-year tolling provision of Cal. Civ. Proc. 13 Code § 352.1(a), the statute of limitations expired on July 31, 2020. ECF No. 7 at 4–6. 14 In Count One of his SAC, Mitchell claims the Defendants violated his Fourteenth 15 Amendment rights on July 31, 2016, and in Count Two he claims the Defendants violated 16 his Fifth Amendment rights on January 13, 2017. See SAC at 1. As discussed above, the 17 two-year statute of limitations for the July 31, 2016 claims expired on July 31, 2018. The 18 two-year statute of limitations for the January 13, 2017 claims expired on January 13, 2019. 19 Jones, 393 F.3d at 927; CAL. CIV. PROC. CODE § 352.1(a); Johnson, 207 F.3d at 654. With 20 the two-year tolling provision of Cal. Civ. Proc. Code § 352.1(a) applied, the statute of 21 limitations for the July 31, 2016 claims expired on July 31, 2020 and the statute of 22 limitations for the January 13, 2017 claims expired on January 13, 2021. Mitchell has not 23 alleged any new facts in his SAC which would alter the Court’s statute of limitations 24 analysis with regard to the claims alleged in Counts One and Two. 25 The Court told Mitchell in its dismissal Order that his claims could be considered 26 timely if he alleged facts sufficient to show he was entitled to equitable tolling of the statute 27 of limitations, Cervantes v. City of San Diego, 5 F.3d 1273, 1276–77 (9th Cir. 1993), 28 explaining he would have to meet three conditions to do so: (1) he must have diligently 1 pursued his claim; (2) his situation must be the product of forces beyond his control; and 2 (3) Defendants must not be prejudiced by the application of equitable tolling. See Hull v. 3 Central Pathology Serv. Med. Clinic, 28 Cal. App. 4th 1328, 1335 (Cal. Ct. App. 1994); 4 Addison v. State of California, 21 Cal.3d 313, 316-17 (Cal. 1978); Fink, 192 F.3d at 916. 5 In his SAC, however, Mitchell has failed to plead any facts which would explain why he 6 did not diligently pursue this claim or what “forces beyond his control” prevented him from 7 filing this action earlier. He simply alleges that “[t]he accruement for the cause of action is 8 now, when the plaintiff knows or has reason to know the wrong on which the action is 9 based,” and “on all the dates listed in this Complaint the defendants continually wronged 10 the plaintiff . . . .” SAC, ECF No. 8 at 4–5. He has not plausibly alleged a claim for equitable 11 tolling. See Cervantes, 5 F.3d at 1277; Iqbal, 556 U.S. at 679; Hinton v. Pac. Enters., 5 12 F.3d 391, 395 (9th Cir. 1993) (plaintiff carries the burden to plead facts which would give 13 rise to equitable tolling); see also Kleinhammer v. City of Paso Robles, 385 Fed. Appx. 14 642, 643 (9th Cir. 2010). 15 Accordingly, the Court finds the running of the statute of limitations for Counts One 16 and Two is apparent on the face of Mitchell’s SAC, and therefore he has failed to state a 17 claim upon which section 1983 relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii); 18 § 1915A(b)(1); Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 969 19 (9th Cir. 2010) (quoting Huynh v. Chase Manhattan Bank, 465 F.3d 992, 997 (9th Cir. 20 2006)) (stating that “‘A claim may be dismissed [for failing to state a claim] on the ground 21 that it is barred by the applicable statute of limitations only when ‘the running of the statute 22 is apparent on the face of the complaint.’”) 23 2. Failure to State a Claim: Count Three 24 Mitchell alleges in Count Three that the Defendants violated his Eighth Amendment 25 rights on February 23, 2022, by imposing “an excessive fine and punishment without due 26 process of law.” SAC, ECF No. 8 at 1, 6. The Eighth Amendment provides that 27 “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual 28 punishments inflicted,” and “‘limits the government’s power to extract payments, whether 1 in cash or in kind, as punishment for some offense.’” U.S. Const. amend. VIII; Pimentel v. 2 City of Los Angeles, 974 F.3d 917, 921 (9th Cir. 2020) (citing Austin v. United States, 509 3 U.S. 602, 609–10 (1993) (internal quotation marks and citation omitted)); see also Timbs 4 v. Indiana, __ U.S. __, 139 S. Ct 682, 686–87 (2019) (holding the excessive fines clause 5 applies to the states through incorporation by the Fourteenth Amendment). “[A] fine is 6 unconstitutionally excessive under the Eighth Amendment if its amount ‘is grossly 7 disproportional to the gravity of the defendant’s offense.’” Pimentel, 974 F.3d at 921 8 (citing United States v. Bajakajian, 524 U.S. 321, 336–37 (1998)). To determine whether 9 a fine is “grossly disproportional to the underlying offense,” a court must consider four 10 factors: “(1) the nature and extent of the underlying offense; (2) whether the underlying 11 offense related to other illegal activities; (3) whether other penalties may be imposed for 12 the offense; and (4) the extent of the harm caused by the offense.” Id. (citing United States 13 v. $100,348 in U.S. Currency, 354 F.3d 1110, 1122 (9th Cir. 2004) and Bajakajian, 524 14 U.S. at 336–37)). 15 Mitchell has not made sufficient factual allegations to state a plausible Eighth 16 Amendment excessive fines claim because his SAC consists solely of a conclusory 17 statement that an excessive fine has been imposed on him. See SAC, ECF No. 8 at 6. He 18 provides no factual allegations for the Court to consider in applying the factors identified 19 by the Ninth Circuit in Pimentel. Further, he does not explain what actions any individual 20 defendant took or failed to take which violated his Eighth Amendment rights. An official 21 can only be liable in a § 1983 action for his or her own misconduct. Iqbal, 556 U.S. at 677. 22 “A plaintiff must allege facts, not simply conclusions, that show that [each defendant] was 23 personally involved in the deprivation of his civil rights.” Barren v. Harrington, 152 F.3d 24 1193, 1194 (9th Cir. 1998); see also Estate of Brooks ex rel. Brooks v. United States, 197 25 F.3d 1245, 1248 (9th Cir. 1999) (“Causation is, of course, a required element of a § 1983 26 claim.”) 27 In order to plead a viable Eighth Amendment claim, Mitchell must provide more 28 than conclusory statements, such as he “received an excessive fine and punishment without 1 due process of law . . .[which was] due in part to the invidious discrimination by the 2 defendants and conspiring with the other defendants while under color of state law and 3 under the guise of law enforcement.” SAC, ECF No. 8 at 6. These statements are not 4 sufficient to plausibly allege an Eighth Amendment violation because they do not contain 5 any individualized allegations against any of the Defendants. Iqbal, 556 U.S. at 676; see 6 also Blankenhorn v. City of Orange, 485 F.3d 463, 481 (9th Cir. 2007) (stating that an 7 individual’s liability under § 1983 “is predicated on his ‘integral participation’ in the 8 alleged violation”) (quoting Chuman v. Wright, 76 F.3d 292, 294–95 (9th Cir. 1996)) Thus, 9 Plaintiff’s Eighth Amendment claim must be dismissed sua sponte for failing to state an 10 Eighth Amendment claim upon which § 1983 relief can be granted pursuant to 28 U.S.C. 11 § 1915(e)(2)(B)(ii) and § 1915A(b)(1). See Watison 668 F.3d at 1112; Wilhelm, 680 F.3d 12 at 1121. 13 III. Leave to Amend 14 Because Mitchell has already been provided a short and plain statement of the 15 pleading deficiencies of his Fifth and Fourteenth Amendment claims in Counts One and 16 Two, as well as an opportunity to amend those claims to no avail, the Court finds granting 17 further leave to amend as to Counts One and Two would be futile. Gonzalez v. Planned 18 Parenthood, 759, F.3d 1112, 1116 (9th Cir. 2014) (“‘Futility of amendment can, by itself, 19 justify the denial of ... leave to amend.’”) (quoting Bonin v. Calderon, 59 F.3d 815, 845 20 (9th Cir. 1995)); Schmier v. U.S. Court of Appeals for the Ninth Circuit, 279 F.3d 817, 824 21 (9th Cir. 2002) (recognizing “[f]utility of amendment” as a proper basis for dismissal 22 without leave to amend). As to the Eighth Amendment excessive fine claim contained in 23 Count Three, however, Mitchell has not been previously notified of his pleading 24 deficiencies and therefore the Court will give him an opportunity to amend his Complaint 25 as to that claim only. 26 / / / 27 / / / 28 / / / 1 IV. Conclusion and Order 2 For the reasons explained, the Court: 3 (1) VACATES its January 12, 2023 judgment. 4 (2) VACATES and AMENDS IN PART its January 12, 2023 dismissal Order. 5 (3) DISMISSES Plaintiff’s Fifth and Fourteenth Amendment claims (Counts 6 One and Two) pursuant to 28 U.S.C. § 1915(e)(2) and 1915A(b)(1) without leave to 7 amend. 8 (4) DISMISSES Plaintiff’s Eighth Amendment claim pursuant to 28 U.S.C. 9 § 1915(e)(2) and 1915A(b)(1) with leave to amend. 10 (5) GRANTS Plaintiff forty-five (45) days leave from the date of this Order to 11 file an Amended Complaint as to his Eighth Amendment claim only which cures all the 12 deficiencies of pleading noted. Plaintiff’s Amended Complaint must be complete in itself 13 without reference to his original pleading. Defendants not named and any claims not re- 14 alleged in the Amended Complaint will be considered waived. See S.D. CAL. CIVLR 15.1; 15 Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) 16 (“[A]n amended pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 17 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend which are not 18 re-alleged in an amended pleading may be “considered waived if not repled.”). The Clerk 19 of the Court is DIRECTED to mail Plaintiff a court approved civil rights complaint form 20 for his use in amending 21 If Plaintiff fails to file an Amended Complaint within the time provided, the Court 22 will enter a final Order dismissing this civil action based both on Plaintiff’s failure to state 23 a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A, 24 and his failure to prosecute in compliance with a court order requiring amendment. See 25 Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage 26 / / / 27 / / / 28 / / / 1 the opportunity to fix his complaint, a district court may convert the dismissal of the 2 ||complaint into dismissal of the entire action.”) 3 IT IS SO ORDERED. 4 ||Dated: January 25, 2023 em Dh 5 a Yn. Hon. Dana M. Sabraw, Chief Judge 6 United States District Court 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 oe