1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KENYATTA QUINN MITCHELL, Case No.: 22-cv-1011-BAS-BGS CDCR # BC0837, 12 ORDER: Plaintiff, 13 vs. (1) DISMISSING FOURTH 14 AMENDED COMPLAINT
15 PURSUANT TO 28 U.S.C. § 1915(e)(2) PAUL BENNETT, Supervising Parole AND § 1915A(b)(1) [ECF No. 25]; 16 Officer; JANE DOE, Chula Vista Parole 17 Officer; CLAUDIA PLASCENCIA, (2) DENYING MOTION FOR District Attorney; BONNIE DUMANIS, EVIDENTIARY HEARING, 18 District Attorney; PATRICIA TAITANO APPOINTMENT OF COUNSEL, 19 VALDOVINOS, San Diego Public AND STAY [ECF No. 21]; and Defender; ANGEL NUNEZ, Probation 20 Officer; BETHANY HOGGE, Probation (3) DENYING REQUEST FOR 21 Officer, PRELIMINARY INJUNCTION [ECF No. 24] 22 Defendants. 23 24 On July 12, 2022, Plaintiff filed a Complaint pursuant to 42 U.S.C. § 1983 and a 25 Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). (See ECF 26 Nos. 1, 2.) Before the Court could screen that Complaint, he filed a First Amended 27 Complaint (“FAC”). (ECF No. 3.) The FAC alleges Defendants violated his Fifth and 28 Fourteenth Amendment rights when they failed to prevent a parolee from harassing 1 Plaintiff and his girlfriend. (Id. ¶ 19.) The alleged harassment resulted in Plaintiff’s arrest 2 after defending himself from the parolee. (Id. ¶ 13.) On October 21, 2022, the Court 3 dismissed the FAC because it was filed beyond the statute of limitations. (ECF No. 7.) 4 Mitchell was given forty-five (45) days to file a Second Amended Complaint (“SAC”). 5 (Id.) 6 On November 22, 2022, Mitchell filed a SAC, which made substantially the same 7 allegations as his FAC. (ECF No. 8 at 4–5.) Mitchell also alleged the Defendants violated 8 his Eighth Amendment rights by imposing an excessive fine. (Id. at 6.) The Court dismissed 9 Mitchell’s Fifth and Fourteenth Amendment claims without leave to amend on January 25, 10 2023, finding that granting further leave to amend would be futile. (ECF No. 15 at 8.) The 11 Court gave Mitchell forty-five (45) days to file a Third Amended Complaint as to his 12 Eighth Amendment excessive fines claim only. (Id.) 13 On February 27, 2023, Mitchell filed a Third Amended Complaint (“TAC”) alleging 14 Defendants violated his Eighth Amendment rights to be free from cruel and unusual 15 punishment. (TAC, ECF No. 20 at 4–5.) He also filed a Motion for an Evidentiary Hearing, 16 a Motion to Appoint Counsel, and a Motion for Stay (ECF No. 21) and a Motion for 17 Preliminary Injunction (ECF No. 24). Subsequently, he filed a Fourth Amended Complaint 18 alleging substantially the same facts and claims but omitting any reference to an excessive 19 fines claim. (Fourth AC, ECF No. 25.) 20 I. Screening Pursuant to 28 U.S.C § 1915(e)(2) and § 1915A(b)(1) 21 The Prison Litigation Reform Act requires the Court to review complaints filed by 22 all persons proceeding IFP and by those, like Plaintiff, who are “incarcerated or detained 23 in any facility [and] accused of, convicted of, sentenced for, or adjudicated delinquent for, 24 violations of criminal law or the terms or conditions of parole, probation, pretrial release, 25 or diversionary program,” at the time of filing or “as soon as practicable after docketing.” 26 See 28 U.S.C. §§ 1915(e)(2), 1915A. 27 Screening requires the Court to dismiss sua sponte a complaint, or any portion of a 28 complaint, which is frivolous, malicious, fails to state a claim, or seeks damages from 1 defendants who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) 2 (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 3 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to 4 ensure that the targets of frivolous or malicious suits need not bear the expense of 5 responding.’” Nordstrom v. Ryan, 762 F.3d 903, 907 n.1 (9th Cir. 2014) (quoting Wheeler 6 v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 7 “The standard for determining whether a plaintiff has failed to state a claim upon 8 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 9 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 10 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 11 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 12 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 13 12(b)(6)”). Rule 12(b)(6) requires a complaint to “contain sufficient factual matter, 14 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 15 556 U.S. 662, 678 (2009) (cleaned up). A court must accept all factual allegations pleaded 16 in the complaint as true and must construe them and draw all reasonable inferences in favor 17 of the nonmoving party. See Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337–38 (9th Cir. 18 1996). Detailed factual allegations are not required, but “[t]hreadbare recitals of the 19 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 20 Iqbal, 556 U.S. at 678. 21 The Fourth Amended Complaint alleges an Eighth Amendment violation against 22 Defendants Bennett and Doe and malicious prosecution against all other Defendants. 23 (Fourth AC ¶¶ 22–25.) Plaintiff fails to state a claim. 24 Plaintiff alleges that he was the victim of threats and physical assaults in 2016, which 25 violated the Eighth Amendment. (Fourth AC ¶¶ 10, 22.) This claim is time barred. Under 26 federal common law, accrual occurs when the plaintiff has a “complete and present cause 27 of action.” Id. (quoting Bay Area Laundry and Dry Cleaning Pension Trust Fund v. Ferbar 28 Corp. of Cal., 522 U.S. 192, 201 (1997)). “For actions under 42 U.S.C. § 1983, courts apply 1 the forum state’s statute of limitations for personal injury actions . . . except to the extent 2 any of these laws is inconsistent with federal law.” Jones v. Blanas, 393 F.3d 918, 927 (9th 3 Cir. 2004). California’s statute of limitations for personal injury claims is two years. Cal. 4 Civ. Proc. Code § 335.1.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KENYATTA QUINN MITCHELL, Case No.: 22-cv-1011-BAS-BGS CDCR # BC0837, 12 ORDER: Plaintiff, 13 vs. (1) DISMISSING FOURTH 14 AMENDED COMPLAINT
15 PURSUANT TO 28 U.S.C. § 1915(e)(2) PAUL BENNETT, Supervising Parole AND § 1915A(b)(1) [ECF No. 25]; 16 Officer; JANE DOE, Chula Vista Parole 17 Officer; CLAUDIA PLASCENCIA, (2) DENYING MOTION FOR District Attorney; BONNIE DUMANIS, EVIDENTIARY HEARING, 18 District Attorney; PATRICIA TAITANO APPOINTMENT OF COUNSEL, 19 VALDOVINOS, San Diego Public AND STAY [ECF No. 21]; and Defender; ANGEL NUNEZ, Probation 20 Officer; BETHANY HOGGE, Probation (3) DENYING REQUEST FOR 21 Officer, PRELIMINARY INJUNCTION [ECF No. 24] 22 Defendants. 23 24 On July 12, 2022, Plaintiff filed a Complaint pursuant to 42 U.S.C. § 1983 and a 25 Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). (See ECF 26 Nos. 1, 2.) Before the Court could screen that Complaint, he filed a First Amended 27 Complaint (“FAC”). (ECF No. 3.) The FAC alleges Defendants violated his Fifth and 28 Fourteenth Amendment rights when they failed to prevent a parolee from harassing 1 Plaintiff and his girlfriend. (Id. ¶ 19.) The alleged harassment resulted in Plaintiff’s arrest 2 after defending himself from the parolee. (Id. ¶ 13.) On October 21, 2022, the Court 3 dismissed the FAC because it was filed beyond the statute of limitations. (ECF No. 7.) 4 Mitchell was given forty-five (45) days to file a Second Amended Complaint (“SAC”). 5 (Id.) 6 On November 22, 2022, Mitchell filed a SAC, which made substantially the same 7 allegations as his FAC. (ECF No. 8 at 4–5.) Mitchell also alleged the Defendants violated 8 his Eighth Amendment rights by imposing an excessive fine. (Id. at 6.) The Court dismissed 9 Mitchell’s Fifth and Fourteenth Amendment claims without leave to amend on January 25, 10 2023, finding that granting further leave to amend would be futile. (ECF No. 15 at 8.) The 11 Court gave Mitchell forty-five (45) days to file a Third Amended Complaint as to his 12 Eighth Amendment excessive fines claim only. (Id.) 13 On February 27, 2023, Mitchell filed a Third Amended Complaint (“TAC”) alleging 14 Defendants violated his Eighth Amendment rights to be free from cruel and unusual 15 punishment. (TAC, ECF No. 20 at 4–5.) He also filed a Motion for an Evidentiary Hearing, 16 a Motion to Appoint Counsel, and a Motion for Stay (ECF No. 21) and a Motion for 17 Preliminary Injunction (ECF No. 24). Subsequently, he filed a Fourth Amended Complaint 18 alleging substantially the same facts and claims but omitting any reference to an excessive 19 fines claim. (Fourth AC, ECF No. 25.) 20 I. Screening Pursuant to 28 U.S.C § 1915(e)(2) and § 1915A(b)(1) 21 The Prison Litigation Reform Act requires the Court to review complaints filed by 22 all persons proceeding IFP and by those, like Plaintiff, who are “incarcerated or detained 23 in any facility [and] accused of, convicted of, sentenced for, or adjudicated delinquent for, 24 violations of criminal law or the terms or conditions of parole, probation, pretrial release, 25 or diversionary program,” at the time of filing or “as soon as practicable after docketing.” 26 See 28 U.S.C. §§ 1915(e)(2), 1915A. 27 Screening requires the Court to dismiss sua sponte a complaint, or any portion of a 28 complaint, which is frivolous, malicious, fails to state a claim, or seeks damages from 1 defendants who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) 2 (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 3 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to 4 ensure that the targets of frivolous or malicious suits need not bear the expense of 5 responding.’” Nordstrom v. Ryan, 762 F.3d 903, 907 n.1 (9th Cir. 2014) (quoting Wheeler 6 v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 7 “The standard for determining whether a plaintiff has failed to state a claim upon 8 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 9 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 10 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 11 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 12 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 13 12(b)(6)”). Rule 12(b)(6) requires a complaint to “contain sufficient factual matter, 14 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 15 556 U.S. 662, 678 (2009) (cleaned up). A court must accept all factual allegations pleaded 16 in the complaint as true and must construe them and draw all reasonable inferences in favor 17 of the nonmoving party. See Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337–38 (9th Cir. 18 1996). Detailed factual allegations are not required, but “[t]hreadbare recitals of the 19 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 20 Iqbal, 556 U.S. at 678. 21 The Fourth Amended Complaint alleges an Eighth Amendment violation against 22 Defendants Bennett and Doe and malicious prosecution against all other Defendants. 23 (Fourth AC ¶¶ 22–25.) Plaintiff fails to state a claim. 24 Plaintiff alleges that he was the victim of threats and physical assaults in 2016, which 25 violated the Eighth Amendment. (Fourth AC ¶¶ 10, 22.) This claim is time barred. Under 26 federal common law, accrual occurs when the plaintiff has a “complete and present cause 27 of action.” Id. (quoting Bay Area Laundry and Dry Cleaning Pension Trust Fund v. Ferbar 28 Corp. of Cal., 522 U.S. 192, 201 (1997)). “For actions under 42 U.S.C. § 1983, courts apply 1 the forum state’s statute of limitations for personal injury actions . . . except to the extent 2 any of these laws is inconsistent with federal law.” Jones v. Blanas, 393 F.3d 918, 927 (9th 3 Cir. 2004). California’s statute of limitations for personal injury claims is two years. Cal. 4 Civ. Proc. Code § 335.1. The statute of limitations is tolled for two years for prisoners 5 serving less than a life sentence. Cal. Civ. Proc. Code § 352.1(a). Thus, Plaintiff’s claim is 6 subject to a two-year statute of limitations with two additional years of tolling due to his 7 incarceration. He alleges the Eighth Amendment violations occurred in 2016, and he filed 8 his initial Complaint in 2022. Thus, the statute of limitations expired before he filed his 9 initial Complaint. 10 Plaintiff alleges that this cause of action did not accrue until after the conclusion of 11 his criminal prosecution, including his appeals and habeas petitions. This allegation is 12 legally incorrect. The California Code prevents persons charged with an “accusatory 13 pleading” in a criminal case from bringing a “civil action for money or damages against a 14 peace officer . . . based upon conduct of the peace officer relating to the offense for which 15 the accused is charged . . . while the charges against the accused are pending before a 16 superior court.” Cal. Gov’t Code § 945.3. It further states, “Any applicable statute of 17 limitations for filing and prosecuting these actions shall be tolled during the period that the 18 charges are pending before a superior court. For the purposes of this section, charges 19 pending before a superior court do not include appeals.” Id. Therefore, even if the statute 20 of limitations was tolled through Plaintiff’s criminal trial, which commenced December 21 14, 2016, it was not tolled throughout his appeals process. (See Fourth AC ¶ 21.) As such, 22 Plaintiff fails to plead the timeliness of his Eighth Amendment claim. 23 Plaintiff fails to state a malicious prosecution claim. The first element of malicious 24 prosecution requires pleading that the prior proceeding was “pursued to a legal termination 25 favorable to the plaintiff.” See Villa v. Cole, 4 Cal. App. 4th 1327, 1334 (1992); cf. 26 Thompson v. Clark, 142 S. Ct. 1332, 1337 (2022) (determining that courts look to state tort 27 law to define malicious prosecution under the Constitution). Plaintiff does not allege that 28 1 his criminal prosecution terminated without a conviction. See Thompson, 142 S. Ct. at 2 1335. Therefore, he fails to state a malicious prosecution claim against any Defendant. 3 Because the Court has already explained the pleading deficiencies to Plaintiff and 4 given him several opportunities to amend, the Court DISMISSES this action without 5 further leave to amend. 6 II. Miscellaneous Motions 7 Plaintiff has filed a document entitled “Motion for Evidentiary Hearing.” (ECF No. 8 21.) In the same Motion, he also seeks appointment of counsel, a stay and abeyance, and 9 relief from judgment until an evidentiary hearing. (Id.) Because the Court is dismissing this 10 case without further leave to amend, those motions are DENIED as moot. 11 III. Request for Preliminary Injunction 12 Plaintiff is also seeking a preliminary injunction “to protect those rights violated by 13 the defendants and obtain some of the procedural safeguards available from the court to 14 the plaintiff according to the liabilities of the defendants.” (ECF No. 24 at 2.) Because the 15 Court dismisses Plaintiff’s claims without leave to amend, Plaintiff’s Request for 16 Preliminary Injunction is also moot. Moreover, even if the Court had jurisdiction to issue 17 a preliminary injunction, Plaintiff has not carried his burden. “A plaintiff seeking a 18 preliminary injunction must establish that he is likely to succeed on the merits, that he is 19 likely to suffer irreparable harm in the absence of preliminary relief, that the balance of 20 equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural 21 Resources Defense Council, Inc., 555 U.S. 7, 20 (2008). Here, Plaintiff fails to clear the 22 “low threshold” of screening pursuant to 28 U.S.C § 1915(e)(2) and § 1915A(b)(1). See 23 Wilhelm, 680 F.3d at 1123. A fortiori Plaintiff fails to demonstrate a likelihood of success 24 on the merits. Accordingly, the Court DENIES Plaintiff’s Request for Preliminary 25 Injunction. (ECF No. 24.) 26 IV. Conclusion and Order 27 For the reasons explained, the Court: 28 l (1) DISMISSES this civil action without further leave to amend for failure to state 2 claim upon which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and 3 1915A(b). Because Plaintiff has already been provided a short and plain statement of his 4 || pleading deficiencies, as well as an opportunity to amend those claims to no avail, the Court 5 || finds granting further leave to amend these claims would be futile. See Schmier v. U.S. Ct. 6 || of Appeals for the Ninth Circuit, 279 F.3d 817, 824 (9th Cir. 2002) (recognizing □□□□□□□□□□□ 7 ||of amendment” as a proper basis for dismissal without leave to amend). 8 (2) DENIES Plaintiff's Motion for Evidentiary Hearing and other miscellaneous 9 || motions (ECF No. 21) as moot. 10 (3) DENIES Plaintiff's Request for Preliminary Injunction (ECF No. 24). 11 (4) CERTIFIES that an IFP appeal would not be taken in good faith pursuant to 28 12 |/U.S.C. § 1915(a)(3). 13 (5) DIRECTS the Clerk of Court to enter a final judgment of dismissal and close 14 || the file. 15 IT IS SO ORDERED. 16 17 || DATED: June 13, 2023 ( ypc lig Ayphaak 18 United States District Judge 19 20 21 22 23 24 25 26 27 28 6