1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ERNEST LEE COX, No. 2:19-cv-01637 JAM DB 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 SCOTT KERNAN, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding pro se and in forma pauperis, with a civil rights 18 complaint under 42 U.S.C. § 1983. The action proceeds on plaintiff’s second amended 19 complaint, as screened by the court. (ECF No. 11.) Plaintiff claims his due process rights were 20 violated as defendant was not an impartial hearing officer during a 2014 rules violation hearing. 21 Before the court is defendant’s motion to dismiss. (ECF No. 21.) For the foregoing 22 reasons, the court will recommend that defendant’s motion to dismiss be granted and plaintiff’s 23 second amended complaint be dismissed without leave to amend. 24 BACKGROUND 25 I. Procedural Background 26 Plaintiff filed this action pursuant to 42 U.S.C § 1983 on August 22, 2019. (ECF No. 1.) 27 Plaintiff filed an amended complaint on December 30, 2019. (ECF No. 8.) A second amended 28 complaint (“SAC”) was filed on May 1, 2020. (ECF No. 11.) The court screened the SAC, 1 determined it stated a cognizable claim against defendant Correctional Lieutenant M. Allen, and 2 ordered service appropriate on defendant Allen. (ECF No. 13.) On November 30, 2020, 3 defendant filed the motion to dismiss presently before the court. (ECF No. 21.) Plaintiff filed an 4 opposition to the motion to dismiss (ECF No. 24) and defendant filed a reply to plaintiff’s 5 opposition (ECF No. 28). 6 II. Factual Allegations 7 Plaintiff is a state prison inmate currently housed at Mule Creek State Prison (“MCSP”). 8 (ECF No. 11 at 1.) At all relevant times, plaintiff was an inmate at MCSP. (Id. at 2.) 9 In his SAC, plaintiff alleges the following: Correctional Officer Grimes and plaintiff 10 frequently spoke and plaintiff believed Grimes “was interested in him.” (ECF No. 11 at 2-3.) 11 While plaintiff was speaking with Grimes, defendant approached them and stated, “it’s too late, I 12 saw to [sic] much already.” (Id.) When plaintiff next spoke with Grimes, she informed plaintiff 13 that she had been warned against having conversations with inmates at the command station. (Id. 14 at 3.) Grimes also told plaintiff that “writing is good therapy” which plaintiff believed meant 15 “Grimes wanted [plaintiff] to reduce their conversations to writing.” (Id.) 16 Plaintiff wrote Grimes a letter, who then read it, while reassuring plaintiff not to worry 17 about getting in trouble. (Id.) Subsequently, Grimes gave the letter to her supervisors: defendant 18 Allen and Captain Olivas. (Id. at 4.) Plaintiff and Grimes were questioned by defendant due to 19 concern from Olivas and Warden Lizarraga that plaintiff was trying to establish a relationship 20 with Grimes. (Id.) Plaintiff was then fired from his job, moved to a new building at MCSP, and 21 ordered not to speak or look at Grimes. (Id.) 22 Plaintiff later received a rules violation report (“RVR”) for “unlawful influence” and a 23 hearing was held regarding the RVR on April 19, 2014. (Id. at 6.) Defendant was assigned as the 24 hearing officer by Captain Olivas and Warden Lizarraga despite defendant having previously 25 questioned Grimes and the plaintiff. (Id.) During the hearing, defendant denied plaintiff’s 26 requests to question Grimes and other inmates about whether Grimes had requested the letter and 27 been flirtatious with other inmates. (Id. at 6-7.) Defendant told plaintiff the only question that 28 mattered was whether plaintiff had given Grimes the letter. (Id. at 7-8.) Plaintiff admitted he had 1 but explained that Grimes had given him permission to give her the letter. (Id. at 8.) Defendant 2 told plaintiff he would dismiss the RVR but Olivas and Lizarraga were watching the hearing and 3 had ordered defendant to find plaintiff guilty. (Id. at 7-8.) Plaintiff was found guilty, assessed a 4 thirty-day behavioral credit penalty, and confined to quarters for ten days. (Id.) 5 Plaintiff claims that his due process rights were violated as defendant was not an impartial 6 trier of fact during the RVR hearing conducted on April 19, 2014. (Id. at 9.) 7 STANDARD FOR MOTION TO DISMISS 8 Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for motions to dismiss for 9 “failure to state a claim upon which relief can be granted.” “To survive a motion to dismiss, a 10 complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is 11 plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. 12 Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads 13 factual content that allows the court to draw the reasonable inference that the defendant is liable 14 for the misconduct alleged.” Id. The court must accept as true the allegations of the complaint, 15 Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), and construe the pleading 16 in the light most favorable to plaintiff, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se 17 complaint must contain more than “naked assertion[s],” “labels and conclusions,” or “a formulaic 18 recitation of the elements of a cause of action, supported by mere conclusory statements.” Iqbal, 19 556 U.S. at 678. 20 A motion to dismiss for failure to state a claim should not be granted unless it appears 21 beyond doubt that the plaintiff can prove no set of facts in support of his claims which would 22 entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. 23 Gibson, 355 U.S. 41, 45-46 (1957)). Pro se pleadings are held to a less stringent standard than 24 those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curium). The court 25 must give a pro se litigant leave to amend his complaint “unless it determines that the pleading 26 could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 27 1127 (9th Cir. 2000) (quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995)). However, 28 the court’s liberal interpretation of a pro se complaint may not supply essential elements of the 1 claim that were not pled. Ivey v. Bd. Of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 2 1982). In ruling on a motion to dismiss pursuant to Rule 12(b)(6), the court “may ‘generally 3 consider only allegations contained in the pleadings, exhibits attached to the complaint, and 4 matters properly subject to judicial notice.’” Outdoor Media Grp., Inc. v. City of Beaumont, 506 5 F.3d 895, 899 (9th Cir. 2007) (citing Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007)). 6 DISCUSSION 7 Defendant moves to dismiss this action on four separate grounds: (1) the claims are barred 8 by claim preclusion; (2) the claims are barred by the statute of limitations; (3) the SAC fails to 9 allege a Fourteenth Amendment due process violation; and (4) the claims are barred by the 10 Eleventh Amendment. (See ECF No. 21-1 at 12-23.) Each of the grounds in the motion to 11 dismiss, as well as plaintiff’s opposition to them and defendant’s replies, will be analyzed in turn. 12 I. Claim Preclusion 13 A. Arguments in Defendant’s Motion to Dismiss and Reply 14 Defendant asserts that plaintiff’s claims in the present action are subject to claim 15 preclusion as a result of plaintiff’s previous habeas petitions filed with the Superior Court of 16 Amador County, the California Court of Appeal, and the California Supreme Court. (ECF No. 17 21-1 at 14.) Defendant argues that privity exists between defendant and the habeas petition 18 respondents and that plaintiff raised the “same alleged due process violations of Defendant Allen” 19 in the habeas petition. (ECF No. 28 at 3.) Defendant also claims that the case was decided on the 20 merits as there was a “reasoned denial” by the superior court. (Id. at 3.) 21 B. Plaintiff’s Opposition 22 Plaintiff opposes on the basis that defendant was not in privity with the respondents 23 named in the state habeas petitions. (ECF No. 24 at 8.) Plaintiff claims that defendant is not in 24 privity with the respondents of his habeas petitions because “[defendant Allen’s] liability is 25 different from any of the state habeas respondents.” (Id. at 9.) Plaintiff also argues that, even if 26 the defendant is found to be in privity with the habeas respondents, claim preclusion should not 27 apply as the state habeas petition was not decided on the merits. (Id. at 9.) Specifically, plaintiff 28 //// 1 asserts that claim preclusion does not apply because the state courts were unable to award 2 damages and there was no “adversarial testing of the writ.” (Id. at 9-10.) 3 C. Legal Standard 4 The doctrine of res judicata, or claim preclusion, "bars repetitious suits involving the same 5 cause of action once a court of competent jurisdiction has entered a final judgment on the merits." 6 United Staes v. Tohono O'Odham Nation, 563 U.S. 307, 315, 131 S. Ct. 1723, 179 L. Ed. 2d 723 7 (2011) (citation and internal quotation marks omitted). Under the Full Faith and Credit Statute, 8 28 U.S.C. § 1738, a federal court must accord a state judgment the same preclusive effect as 9 would be given that judgment under the law of the state in which the judgment was entered. See 10 Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 83, 104 S. Ct. 892, 79 L. Ed. 2d 56 11 (1984) (state court final judgments are entitled to claim preclusion in federal § 1983 actions); 12 accord, Allen v. McCurry, 449 U.S. 90, 103-04, 101 S. Ct. 411, 66 L. Ed. 2d 308 (1980) (state 13 court final judgments are entitled to issue preclusion in federal § 1983 actions); Clark v. Yosemite 14 Comm. College Dist., 785 F.2d 781, 788 n.9 (9th Cir. 1986) (collecting cases). 15 In determining whether a state court decision is preclusive, federal courts are required to 16 refer to the preclusion rules of the relevant state. Miofsky v. Superior Court of California, 703 17 F.2d 332, 336 (9th Cir. 1983). In Furnace v. Giurbino the Ninth Circuit found that, under 18 California claim preclusion case law, a petition for writ of habeas corpus filed in California court 19 can have a preclusive effect on a subsequent § 1983 action “if the second suit involves: (1) the 20 same cause of action (2) between the same parties or parties in privity with them (3) after a final 21 judgment on the merits in the first suit.” Furnace v. Giurbino, 838 F.3d 1019, 1023 (9th Cir. 22 2016) (quoting DKN Holdings LLC v. Faerber, 61 Cal. 4th 813, 818 (Cal. 2015)) (analyzing 23 California law to determine what is necessary to establish a preclusive effect). California law 24 determines whether each of these requirements is been met. See Furnace, 838 F.3d at 1024-28. 25 1. Same Cause of Action 26 California law dictates that the contours of a cause of action are determined by applying 27 the primary rights doctrine. Under this doctrine, a cause of action is defined as: "(1) a primary 28 right possessed by the plaintiff, (2) a corresponding primary duty devolving upon the defendant, 1 and (3) a harm done by the defendant which consists in a breach of such primary right and duty." 2 Brodheim v. Cry, 584 F.3d 1262, 1268 (9th Cir. 2009) (citations and internal quotation marks 3 omitted). "Under California law, the claim arises from the harm suffered, as opposed to the 4 particular theory of the litigant. Even when multiple legal theories for recovery exist, one injury 5 gives rise to only one claim for relief." Eichman v. Fotomat Corp., 759 F.2d 1434, 1438 (9th Cir. 6 1985) (citing Slater v. Blackwood, 15 Cal. 3d 791, 794-95 (Cal. 1975)). 7 2. Between the Same Parties or Parties in Privity with Them 8 "California claim preclusion law . . . prevents litigation 'between the same parties or 9 parties in privity with them.'" Furnace, 838 F.3d at 1028 (quoting DKN Holdings LLC v. 10 Faerber, 61 Cal. 4th 813, 824, 189 Cal. Rptr. 3d 809, 352 P.3d 378 (2015)). Privity exists where 11 a party is “so identified in interest with another that he represents the same legal right.” Lerner v. 12 Los Angeles City Bd. of Ed., 59 Cal. 2d 382, 398 (1963) (quoting Zaragosa v. Craven, 33 Cal. 2d 13 315, 318 (1949)); See Trujillo v. Santa Clara County, 775 F.2d 1359, 1367 (9th Cir. 1985). When 14 parties are agents of the same government, they are in privity. Lerner v. Los Angeles City Bd. of 15 Ed., 59 Cal. 2d 382, 398 (Cal. 1963) (“agents of the same government are in privity with each 16 other”); See Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 402-03 (1940) (“There is 17 privity between officers of the same government so that a judgment in a suit between a party and 18 a representative of the United States is res judicata in relitigation of the same issue between that 19 party and another officer of the government.”). 20 3. Final Judgment on the Merits 21 Claim preclusion only applies when there has been a final judgment on the merits of the 22 claim. Furnace, 838 F.3d at 1023. "A judgment is on the merits for purposes of res judicata if the 23 substance of the claim is tried and determined." Johnson v. City of Loma Linda, 24 Cal. 4th 61, 24 77, 99 Cal. Rptr. 2d 316, 5 P.3d 874 (2000) (citation and internal quotation marks omitted). "'A 25 prior judgment operates as a bar against a second action upon the same cause, but in a later action 26 upon a different claim or cause of action, it operates as an estoppel or conclusive adjudication as 27 to such issues in the second action as were actually litigated and determined in the first action.'" 28 Taylor v. Hawkinson, 47 Cal. 2d 893, 895-96, 306 P.2d 797 (1957) (quoting Sutphin v. Speik, 15 1 Cal. 2d 195, 202, 99 P.2d 652 (1940)). Under California’s claim preclusion doctrine, a state 2 court’s “reasoned denial” of a habeas petition has a preclusive effect on the claims raised in the 3 petition. Gonzalez v. California Department of Corrections, 739 F.3d 1226, 1231 (9th Cir. 2014). 4 A subsequent, unexplained denial by an appellate court is also a reasoned denial as it rests on the 5 same grounds as the lower court’s denial. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). 6 D. Analysis 7 The requirements under California law for claim preclusion to apply, as established in 8 Furnace, 838 F.3d at 1023, are satisfied in the present case. 9 1. Same Cause of Action 10 In the instant § 1983 action and each of his prior state habeas petitions1, plaintiff raised the 11 same claim that he was denied an impartial hearing officer during his RVR hearing in violation of 12 his due process rights. (ECF No. 22 at 9-10; ECF No. 21-2 at 31, 126, 230.) California’s primary 13 rights doctrine defines a cause of action as: "(1) a primary right possessed by the plaintiff, (2) a 14 corresponding primary duty devolving upon the defendant, and (3) a harm done by the defendant 15 which consists in a breach of such primary right and duty." Brodheim, 584 F.3d at 1268. 16 In the present action and prior habeas petitions, plaintiff claimed that he possessed a due 17 process right to an impartial trier of fact, that defendant had a duty to act as an impartial hearing 18 officer, and that he was harmed when defendant breached his duty and plaintiff’s corresponding 19 right. (ECF No. 11 at 9-10; ECF No. 21-2 at 31, 126, 230.) Thus, under California law, the 20 present action and prior state habeas consist of the same cause of action as they arise from the 21 same harm. Brodheim, 584 F.3d at 1268; Eichman, 759 F.2d at 1438. Plaintiff also does not
22 1 Defendant requests that the court take judicial notice of the three habeas petitions filed by the 23 plaintiff. (ECF No. 21-1 at 1.) The court may take judicial notice of state and federal court records. See Fed. R. Evid. 201 (court may take judicial notice of facts that are capable of 24 accurate determination by sources whose accuracy cannot reasonably be questioned); Harris v. County of Orange, 682 F.3d 1126, 1131-32 (9th Cir. 2012) (a court may take judicial notice of 25 undisputed matters of public record including documents on file in federal or state courts). 26 Accordingly, the request to take judicial notice of the habeas petitions will be granted. On its own motion, the court also takes judicial notice of the civil rights case filed by plaintiff in the 27 Superior Court of Amador County. This case is accessible under case number 15-CVC-09354. Case records from the Superior Court of Amador County can be found at 28 https://eservices.amadorcourt.org/eservices/. 1 appear to dispute that he previously raised the same cause of action. (See ECF No. 24.) As the 2 cause of action in the present case was previously raised in these state habeas petitions, the first 3 requirement for claim preclusion is satisfied. Furnace, 838 F.3d at 1023. 4 2. Privity 5 The parties in the present petition are in privity with the parties in plaintiff’s three state 6 habeas petitions. The habeas petitions addressed the same issues raised here and the defendant in 7 this action is “closely aligned in interest” with the respondents in the previous state petitions. 8 Nordhorn, 9 F.3d at 1405. Both the defendants and the prior respondents are employees of the 9 California Department of Corrections and Rehabilitation. As such, there exists privity between 10 them as agents of a government addressing the same issue. See Lerner, 59 Cal. 2d at 398. 11 Similarly, the Ninth Circuit in Furnace found that a prison official named as a defendant in a § 12 1983 action was in privity with agents of the same government named in a previous habeas 13 petition despite the prison official not being named in the previous habeas petition. Furnace, 838 14 F.3d at 1028. As privity exists between the defendant and respondents in this case and plaintiff is 15 a party in both actions, the second requirement for claim preclusion is satisfied. Id. at 1023. 16 3. Final Judgment on the Merits 17 Finally, the cause of action raised by the plaintiff in the present case was adjudicated on 18 the merits in the prior habeas petition. In Gonzalez, the Ninth Circuit found that the state court’s 19 denial of a habeas petition on the grounds that there was “‘some evidence’ that [the petitioner] 20 was a gang associate” was a reasoned denial for purposes of claim preclusion. 739 F.3d at 1234. 21 Here, the superior court “read and considered” plaintiff’s petition and entered a judgment. 22 (ECF No. 21-2 at 104.) Just as in Gonzalez, the superior court applied a “some evidence” 23 standard and ultimately found that there was “some basis in fact” for the RVR hearing decision. 24 Gonzalez, 739 F.3d at 1231. Thus, the superior court issued a reasoned denial of the plaintiff’s 25 petition. See Claiborne v. Zhang, 2015 WL 1787781, 3 (E.D. Cal. 2015). 26 As the superior court issued a reasoned denial, there has been a final judgment on the 27 merits for the purposes of claim preclusion. Gonzalez, 739 F.3d at 1231. The subsequent 28 unexplained denials by the California Court of Appeals and California Supreme Court are 1 reasoned denials as they rest upon the same grounds as the superior court’s judgement. Ylst, 501 2 U.S. at 803. It is also irrelevant that plaintiff would have been unable to obtain damages through 3 his habeas petitions. Furnace, 838 F.3d at 1026. 4 4. Claim Preclusion 5 All three requirements set out in Furnace are thus satisfied and the claims raised in 6 plaintiff’s previous state habeas petition have a preclusive effect on subsequent § 1983 actions. 7 Furnace, 838 F.3d at 1023. Plaintiff’s due process claims are subject to res judicata and are 8 barred from relitigation. Id. It will be recommended that the motion to dismiss be granted and 9 that this action be dismissed. 10 II. Statute of Limitations 11 Defendant argues that this action should be dismissed as it was not timely filed within the 12 statute of limitations. (ECF No. 21-1 at 18.) Plaintiff claims that during his federal habeas 13 proceedings the court previously applied statutory tolling for the period when his state habeas 14 actions were pending. (ECF No. 24 at 11.) Plaintiff argues this previous ruling should be binding 15 here. (Id.) Defendant disagrees on the ground that the statute of limitations for habeas petitions 16 is different from § 1983 actions. (ECF No. 28 at 5.) 17 A. Legal Standard 18 For actions under 42 U.S.C. § 1983, this court applies California’s “statute of limitations 19 for personal injury actions” as well as California’s law “regarding tolling, including equitable 20 tolling, except to the extent any of these laws is inconsistent with federal law.” Jones v. Blanas, 21 393 F.3d 918, 927 (9th Cir. 2004); see also Azer v. Connell, 306 F.3d 930, 935-36 (9th Cir. 22 2002). In California, the statute of limitations for personal injury actions is two years. See Cal. 23 Code Civ. Proc. § 335.1; Maldonado v. Harris, 370 F.3d 945, 954-55 (9th Cir. 2004). 24 This period is statutorily tolled for two years for a person who is “imprisoned on a 25 criminal charge, or in execution under the sentence of a criminal court for a term less than for 26 life.” See Cal. Code Civ. Proc. § 352.1(a); Johnson v. State of California, 207 F.3d 650, 654 (9th 27 Cir. 2000). Additionally, “the applicable statute of limitations must be tolled while a prisoner 28 completes the mandatory [administrative] exhaustion process.” Brown v. Valoff, 422 F.3d 926, 1 943 (9th Cir. 2005). Because administrative exhaustion is statutorily required of prisoner civil 2 rights complaints under the Prison Litigation Reform Act, see 42 U.S.C. § 1997e(a), this 3 requirement provides a federal statutory basis to invoke the state's equitable tolling. See, e.g., 4 Johnson v. Rivera, 272 F.3d 519 (7th Cir. 2001). 5 For equitably tolling to apply, three conditions must be met: “(1) defendant must have had 6 timely notice of the claim; (2) defendant must not be prejudiced by being required to defend the 7 otherwise barred claim; and (3) plaintiff's conduct must have been reasonable and in good faith.” 8 Fink v. Shedler, 192 F.3d 911, 916 (9th Cir. 1999) (citation omitted); see also Lantzy v. Centex 9 Homes, 31 Cal. 4th 363, 370 (2003) (“This court has applied equitable tolling in carefully 10 considered situations to prevent the unjust technical forfeiture of causes of action, where the 11 defendant would suffer no prejudice.”); But see Diggs v. Williams, No. CIV S-05-1168 DFL 12 GGH P, 2006 WL 1627887, at *3 (E.D. Cal. June 8, 2006) (“California courts have declined to 13 find equitable tolling in cases where the plaintiff's own conduct delayed the prosecution of his 14 previous action.”), rep. and reco. adopted, 2006 WL 2527949 (E.D. Cal. Aug. 31, 2006). 15 California courts have held that the defendant must be named in both claims for equitable tolling 16 to apply during the pendency of the first claim. Daviton v. Columbia/HCA Healthcare Corp, 241 17 F.3d 1131, 1138 (9th Cir. 2001); Apple Valley Unified Sch. Dist. v. Vavrinek, Trine, Day & Co., 18 98 Cal. App. 4th 934, 954 (2002); Collier v. City of Pasadena, 142 Cal. App. 3d 917, 924 (1983). 19 “Although state law determines the length of the limitations period, ‘federal law 20 determines when a civil rights claim accrues.’” Azer, 306 F.3d at 936 (quoting Morales v. City of 21 Los Angeles, 214 F.3d 1151, 1153-54 (9th Cir. 2000)). A claim accrues under federal law when 22 “the plaintiff knows or has reason to know of the injury which is the basis of the action.” 23 TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999). 24 B. Analysis 25 Based on the SAC, the plaintiff’s due process claims accrued on April 19, 2014, when 26 plaintiff became aware of the actions which he alleges violated due process rights. (ECF No. 11 27 at 6.) Plaintiff filed the present action on August 22, 2019. (ECF No. 1.) 28 //// 1 The court applies the two-year statute of limitations set by California’s personal injury 2 statute of limitations. Jones, 393 F.3d at 927; Cal. Code Civ. Proc. § 335.1. As plaintiff is 3 incarcerated on a term of life imprisonment (ECF No. 21-2 at 307), the statutory tolling 4 requirements of Cal. Code Civ. Proc. § 352.1(a) do not apply. See Cal. Code Civ. Proc. § 5 352.1(a); Johnson, 207 F.3d at 654. However, the statute of limitation was tolled while plaintiff’s 6 administrative reviews were pending. Brown, 422 F.3d at 943. Plaintiff administrative appeals 7 were exhausted, and thus this statutory tolling period ended, on December 15, 2014. (ECF No. 8 21-2 at 40-41; See ECF No. 24 at 12.) 9 Plaintiff appears to argue that equitable tolling should apply while his habeas petitions and 10 state civil rights complaints were pending in the state court.2 (ECF No. 24 at 12; See ECF No. 11 21-2 at 10, 105, 209.) For equitable tolling to apply, “defendant must have had timely notice of 12 the claim.” Fink, 192 F.3d 916. Defendant was not named in the plaintiff’s state habeas 13 petitions. (See ECF No. 21-2 at 10, 105, 209.) Defendant was also not named in the state civil 14 rights complaints filed by the plaintiff. Cox v. Beard, et al., 15-CVC-09354 (Super. Ct. Amador 15 Cnty. 2015). Thus, defendant did not have timely notice of the claim as he was not named in the 16 prior actions. Daviton, 241 F.3d at 1138. Given the lack of timely notice, equitable tolling does 17 not apply to the period when plaintiff’s habeas petitions and state civil rights claims were 18 pending. Fink, 192 F.3d 916. 19 Plaintiff also claims that, as it was determined during his federal habeas proceedings that 20 tolling applied while his state habeas was pending, res judicata requires that his claims be 21 considered tolled in the present action. (ECF No. 24 at 11.) In plaintiff’s federal habeas petition, 22 plaintiff’s claims were determined to be statutorily tolled during the pendency of his state habeas 23 petition. Cox v. Kernan, 2019 WL 2024596, *3-4 (E.D. Cal. 2019). However, those claims were 24 2 Generally, the question of equitable tolling cannot be decided on a motion to dismiss because 25 the question is too fact-specific and requires examination of matters beyond documents that may 26 be judicially noticed. See Supermail Cargo, Inc. v. U.S., 68 F.3d 1204, 1206 (9th Cir. 1995); Cervantes v. City of San Diego, 5 F.3d 1273, 1276 (9th Cir. 1993). Here, however, plaintiff 27 asserts he is entitled to equitable tolling only on the basis of his series of habeas corpus and civil rights actions in state court. Because this court may take judicial notice of those proceedings and 28 has done so, they may be considered on a motion to dismiss. 1 determined to be tolled pursuant to 28 U.S.C. § 2244(d)(2). Id. The tolling provisions provided 2 in § 2244 related only to “an application for writ of habeas corpus by a person in custody 3 pursuant to the judgment of a State court.” See 28 U.S.C. § 2244(d)(1). The statutory tolling 4 provisions in § 2244 do not apply to the present case as it is a civil rights action brought under § 5 1983. (See ECF No. 11 at 1.) 6 Given the above, plaintiff claims were statutorily tolled until December 15, 2014. (ECF 7 No. 21-2 at 40-41; See ECF No. 24 at 12.) At that time, they were no longer statutorily or 8 equitably tolled. Plaintiff filed the present action on August 22, 2019. (ECF No. 1.) This is more 9 than two years after the plaintiff’s claims were no longer tolled. As such, the present action was 10 filed outside the statute of limitations imposed by California law. Accordingly, plaintiff’s claims 11 should be barred as untimely. It will be recommended that the motion to dismiss be granted and 12 this action be dismissed. 13 III. Sufficiency of Plaintiff’s Fourteenth Amendment Claims 14 Defendant argues that plaintiff does not have a protected interest in the outcome of the 15 April 19, 2014 RVR hearing and, as such, fails to allege a due process violation under the 16 Fourteenth Amendment. (ECF No. 21-1 at 20.) Defendant asserts that plaintiff cannot establish a 17 liberty interest as he is serving a term of life without parole and therefore the loss of good-time 18 credits will not alter the length of his sentence. (Id. at 21.) Plaintiff argues that he has a property 19 interest in his job and the benefits it provided. (ECF No. 24 at 14.) Plaintiff claims he lost this 20 job and its related privileges as a result of being found guilty at the RVR hearing. (Id.) 21 A. Legal Standard 22 “The Fourteenth Amendment’s Due Process Clause protects persons against deprivations 23 of life, liberty, or property; and those who seek to invoke its procedural protection must establish 24 that one of these interests is at stake.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005) (quotation 25 marks omitted). In order to state a cause of action for deprivation of procedural due process, a 26 plaintiff must first establish the existence of a liberty interest for which protection is sought. Id. 27 A state may “create liberty interests which are protected by the Due Process Clause.” 28 Sandin, 515 U.S. at 483-84. A prisoner has a liberty interest protected by the Due Process Clause 1 only where the restraint “‘imposes atypical and significant hardship on the inmate in relation to 2 the ordinary incidents of prison life.’” Keenan v. Hall, 83 F.3d 1083, 1088 (9th Cir. 1996) 3 (quoting Sandin, 515 U.S. at 484). A plaintiff must assert a dramatic departure from the standard 4 conditions of confinement before due process concerns are implicated. Sandin, 515 U.S. at 485- 5 86; Keenan, 83 F.3d at 1088-89. 6 B. Analysis 7 Plaintiff has not stated a claim under the Fourteenth Amendment as he has not established 8 the existence of a life, liberty, or property interest. 9 Plaintiff is currently serving a sentence of life without the possibility of parole. (ECF No. 10 21-2 at 307.) Therefore, the loss of good time credits cannot be a restriction that would exceed 11 plaintiff’s sentence. Sandin, 515 U.S. at 484. The loss of good time credits also does not impose 12 any significant hardship on the plaintiff as it does not alter his sentence in any practical way. Id. 13 Thus, the loss of good time credits is not a sufficient interest to state a due process claim. 14 Plaintiff was also given ten days of confinement to his quarters as a result of the rules 15 violation. (ECF No. 11 at 9.) Placement in disciplinary segregation is not sufficient to create a 16 due process claim. See, e.g., Borcsok v. Early, 299 F. App’x 76, 78 (2nd Cir. 2008) (ninety-day 17 “confinement and loss of privileges did not rise to a liberty interest, warranting procedural due 18 process protection”); Williams v. Foote, No. CV 08-2838-CJC (JTL), 2009 WL 1520029, at *10 19 (C.D. Cal. May 28, 2009) (no protected liberty interest for 701 days stay in administrative 20 segregation); Rodgers v. Reynaga, No. CV 1-06-1083-JAT, 2009 WL 621130, at *2 (E.D. Cal. 21 Jan. 8, 2009) (retention in administrative segregation for five months was not an atypical and 22 significant hardship). According to the SAC, plaintiff was only subject to confinement to his cell, 23 not the more severe punishment of administrative segregation. (ECF No. 11 at 9.) Further, the 24 brief time plaintiff spent confined to his quarters is relevant to the conclusion that he does not 25 state a liberty interest. See Sandin, 515 U.S. at 486-87 (duration of the condition is a factor to be 26 considered); Holland v. Schuyler, No. 1:16-cv-1271-DAD-GSA-PC, 2017 WL 3601493, at *5 27 (E.D. Cal. Aug. 22, 2017) (plaintiff with spinal degeneration who was forced to sleep on a bad 28 mattress did not establish a liberty interest); Manzanillo v. Moulton, No. 13-cv-2174-JST (PR), 1 2014 WL 4793780, at *12-13 (N.D. Cal. Sept. 25, 2014) (35-day stay in noisy psychiatric unit in 2 which other inmates threw feces and urine not an atypical and significant hardship); Skinner v. 3 Schriro, No. CV 06-1879-PHX-SMM, 2009 WL 10695438, at *1, (D. Ariz. July 10, 2009) 4 (segregated housing that included loss of privileges, loss of electrical appliances, and stifling 5 temperatures for 90 days not atypical and significant); Baker v. Walker, No. CIV S-08-1370 DAD 6 P, 2008 WL 2705025, at *3 (E.D. Cal. July 9, 2008) (temporary loss of privileges not “a dramatic 7 departure from the basic conditions” of prison life). Given this, plaintiff’s ten-day period 8 confined to quarters does not establish a liberty interest sufficient to state a due process claim. 9 Finally, plaintiff alleges he has a property interest in a job he was fired from as a result of 10 the RVR as well as his subsequent denial from another job. “The Due Process Clause of the 11 Fourteenth Amendment ‘does not create a property or liberty interest in prison employment.’” 12 Walker v. Gomez, 370 F.3d 969, 973 (9th Cir. 2004) (quoting Ingram v. Papalia, 804 F.2d 595, 13 596 (10th Cir.1986) (per curiam)) (citations omitted). Plaintiff’s loss of his job does not establish 14 a property or liberty interest. Id. For the same reasons, plaintiff also cannot claim a property or 15 liberty interest in a job for which he was being interviewed as there is no property or liberty 16 interest in prison employment. Walker, 370 F.3d at 973. 17 As such, plaintiff fails to establish the existence of a life, liberty, or property interest in his 18 SAC. Given the lack of life, liberty, or property interest, the plaintiff has not alleged sufficient 19 facts to state a due process claim under the Fourteenth Amendment. It will be recommended that 20 the motion to dismiss be granted as plaintiff’s complaint fails to state a claim. 21 IV. Eleventh Amendment Bar 22 Defendant asserts that plaintiff’s claims against the defendant “in his official capacity” are 23 barred by the Eleventh Amendment. (ECF No. 21-1 at 23.) 24 A. Legal Standard 25 The Eleventh Amendment bars suits for money damages in federal court against state 26 officials in their official capacity. Aholelei v. Department of Public Safety, 488 F.3d 1144, 1147 27 (9th Cir. 2007). However, it does not bar claims brought against state officials in their personal 28 capacities. Hafer v. Melo, 502 U.S. 21, 30, 112 S. Ct. 358, 116 L. Ed. 2d 301 (1991); Porter v. 1 Jones, 319 F.3d 483, 491 (9th Cir. 2003). "Personal-capacity suits . . . seek to impose individual 2 liability upon a government officer for actions taken under color of state law." Hafer, 502 U.S. at 3 25; Suever v. Connell, 579 F.3d 1047, 1060-61 (9th Cir. 2009). Additionally, it does not bar 4 official capacity suit for prospective injunctive relief. Wolfson v. Brammer, 616 F.3d 1045, 5 1065-66 (9th Cir. 2010). 6 B. Analysis 7 Plaintiff states in the SAC that “Defendant Allen is being sued here in his official and 8 personal capacity.” (ECF No. 11 at 10.) Plaintiff also states he is seeking “compensatory and 9 punitive damages.” (Id.) 10 As plaintiff only seeks monetary damages (ECF No. 11 at 10), to the extent plaintiff 11 brings claims against defendant in his official capacity, defendant is correct that these claims are 12 barred by the Eleventh Amendment. Aholelei, 488 F.3d at 1147. However, plaintiff’s claims 13 against defendant in his personal capacity are not barred. Hafer, 502 U.S. at 25; Shoshone- 14 Bannock Tribes, 42 F.3d at 1284. 15 Accordingly, it is recommended that defendant’s motion to dismiss plaintiff’s claims 16 against defendant in his official capacity be granted. 17 NO LEAVE TO AMEND 18 A pro se litigant must be given leave to amend his or her complaint, and some notice of its 19 deficiencies, unless it is absolutely clear that the deficiencies of the complaint could not be cured 20 by amendment. Cato v. U.S., 70 F.3d 1103, 1106 (9th Cir. 1995) (citing Noll v. Carlson, 809 21 F.2d 1446, 1448 (9th Cir. 1987). However, futile amendments should not be permitted. See, e.g., 22 DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 188 (9th Cir. 1987), (quoting Klamath—Lake 23 Pharmaceutical Ass’n v. Klamath Medical Service Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983)). 24 If, after careful consideration, it is clear that a complaint cannot be cured by amendment, the court 25 may dismiss without leave to amend. Cato, 70 F.3d at 1005-06. 26 The court finds that granting plaintiff leave to amend would be futile because his claims 27 are barred by res judicata and the statute of limitations. As such it will be recommended that the 28 second amended complaint be dismissed without leave to amend. 1 CONCLUSION 2 For the foregoing reasons, IT IS HEREBY RECOMMENDED that defendant Allen’s 3 | motion to dismiss (ECF No. 21) be granted and the second amended complaint be dismissed 4 | without leave to amend. 5 These findings and recommendations will be submitted to the United States District Judge 6 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within twenty days 7 | after being served with these findings and recommendations, any party may file written 8 || objections with the court and serve a copy on all parties. The document should be captioned 9 | “Objections to Magistrate Judge's Findings and Recommendations.” Any response to the 10 || objections shall be filed and served within seven days after service of the objections. The parties 11 || are advised that failure to file objections within the specified time may result in waiver of the 12 | right to appeal the district court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 13 || Dated: August 25, 2021 14 15 16 ORAH BARNES UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 | pB:14 DB:1/Orders/Prisoner/Civil. Rights S/cox 1637.mtd_ft 22 23 24 25 26 27 28 16