(PC) Dorton v. Tostonie

• Court: District Court, E.D. California
• Decided: December 16, 2024
• Docket: 1:23-cv-01784
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 FRED DORTON, No. 1:23-cv-01784 GSA (PC) 12 Plaintiff, ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S 13 v. REQUEST FOR NINETY-DAY EXTENSION OF TIME TO FILE AMENDED COMPLAINT 14 STEVE TOSTONIE, et al., (ECF No. 26) 15 Defendants. ORDER GRANTING PLAINTIFF’S 16 REQUEST FOR COPY OF HIS FILED SECOND AMENDED COMPLAINT 17 (ECF No. 26 at 2-3) 18 ORDER DIRECTING PLAINTIFF TO 19 INFORM COURT VIA NOTICE WHY HE HAS NO ACCESS TO LAW LIBRARY 20 (See ECF No. 26 at 1) 21 PLAINTIFF’S FILING REGARDING HIS 22 LACK OF ACCESS TO LAW LIBRARY DUE IN FOURTEEN DAYS 23 PLAINTIFF’S THIRD AMENDED 24 COMPLAINT DUE IN FORTY-FIVE DAYS 25 26 Plaintiff has filed a motion for a ninety-day extension of time to file a third amended 27 complaint. ECF No. 26. This is Plaintiff’s third request for an extension of time to amend. See 28 ECF Nos. 13, 15 (previous extension of time requests). Within the motion, Plaintiff has also 1 requested to be sent a conformed copy of his second amended complaint. ECF No. 26 at 2-3. 2 For the reasons stated below, Plaintiff’s motion will be granted in part and denied in part. 3 Specifically, his extension request will be granted but the ninety-day period requested will be 4 denied. Instead, Plaintiff will be given forty-five days to file the third amended complaint. 5 Absent exigent circumstances, no additional time to file an amended complaint will be granted. 6 In addition, as a one-time courtesy, Plaintiff’s request for a conformed copy of his second 7 amended complaint will be granted. Finally, Plaintiff will be ordered to inform the Court 8 precisely why he lacks access to a law library. He will be given fourteen days to respond to this 9 part of the Court’s order. 10 I. PLAINTIFF’S EXTENSION OF TIME REQUEST 11 In support of Plaintiff’s request for a ninety-day extension of time, Plaintiff asserts that: 12 (1) he does not have a conformed copy of the second amended complaint; (2) he has no physical 13 access to a law library; (3) his case is complex and as a result, the amended complaint will require 14 conferring with others, and it must be typewritten in Los Angeles, and (4) he intends to file a state 15 government claim, a decision upon which, will take sixty days. See ECF No. 26 at 1-2. In the 16 document, Plaintiff also requests the Court to send him a conformed copy of the second amended 17 complaint that he filed as he asserts that he needs to review it in order to file his third amended 18 complaint. Id. 19 II. DISCUSSION 20 A. Need for Conformed Copy of Second Amended Complaint 21 It is unclear why Plaintiff needs a conformed copy of his second amended complaint, as 22 no changes are made to documents filed in this Court. In addition, irrespective of whether 23 Plaintiff sent an additional copy of the second amended complaint to the Court so that it could be 24 stamped and returned to him (see ECF No. 26 at 1-2) (Plaintiff’s assertion), it is Plaintiff’s 25 responsibility to keep a copy of pleadings he files and serves. Despite these facts, as a one-time 26 courtesy, the Court will direct the Clerk of Court to send Plaintiff a copy of the filed second 27 amended complaint. 28 B. No Access to a Law Library 1 In the motion, Plaintiff states that he has no physical access to a law library, but he fails to 2 state precisely why this is, or how it affects his ability to prosecute his case. See generally ECF 3 No. 26. Access to a law library is a fundamental right guaranteed under the Constitution. “[T]he 4 fundamental constitutional right of access to the courts requires prison authorities to assist 5 inmates in the preparation and filing of meaningful legal papers by providing prisoners with 6 adequate law libraries or adequate assistance from persons trained in the law.” Lewis v. Casey, 7 518 U.S. 343, 246 (1996) (brackets added) (citation omitted). As a result, even when an inmate is 8 in segregated housing, access to a prison’s law library should be provided. 9 The lack of access to a law library is a viable reason that supports Plaintiff’s request for an 10 extension of time to file his third amended complaint. As a result, the request will be granted, but 11 only for a period of forty-five days, not ninety. In addition, Plaintiff will be simultaneously 12 ordered to inform the Court precisely why he has no access to Pelican Bay’s prison law library, 13 and how this lack of access is affecting his ability to prosecute his case. Plaintiff is referred to 15 14 CCR 2123. He will be given fourteen days to comply with this part of the Court’s order. 15 C. Need to Send Amended Complaint to Los Angeles for Typing 16 Plaintiff’s assertion that he will need to send his amended complaint to and from Los 17 Angeles so that it can be typed is not a valid reason to warrant an extension of time. Plaintiff’s 18 original complaint was handwritten (see ECF No. 1), and the majority of cases that are filed by 19 prisoners are handwritten. Furthermore, there is no requirement that a prisoner’s pleadings be 20 typewritten. Finally, the Court notes that Plaintiff’s original complaint, which was handwritten, 21 was just six pages in length. See ECF No. 1 at 1-6 (minus attachments). However, his first and 22 second amended complaints, both of which were typewritten, were sixty-one and seventy-six 23 pages, respectively, and they had no attachments. See ECF Nos. 17, 24. 24 The Court notes for the record that after Plaintiff’s second amended complaint was filed, 25 he was ordered to file a third amended complaint, in part, because the second amended complaint 26 was unduly lengthy, unwieldy, and may have violated Rule 20. Specifically, at seventy-six pages 27 it did not contain “short and plain statements,” nor was it “simple, concise, and direct” as Federal 28 Rules of Civil Procedure 8(a) and (d) require. See Fed. R. Civ. P. 8(a)(2), (d)(1), respectively. 1 For these reasons as well, Plaintiff’s stated need to file a typewritten complaint is not 2 sufficiently persuasive to warrant a grant of a ninety-day extension of time to amend. Instead, 3 Plaintiff will be sent another copy of this Court’s Civil Rights Complaint By a Prisoner form to 4 complete and return. He must use that form and will be limited to twenty-five pages, including 5 exhibits, and will be required to comply with all federal and local rules regarding the formatting 6 of his complaint. In short, when amending, Plaintiff is discouraged from filing a single 7 spaced, smaller-than-12-font pleading, and reminded that he must comply with the 8 directives of Rules 8 and 20. His failure to follow these directives may result in a 9 recommendation that this matter be dismissed. 10 D. California Government Claims Act 11 Plaintiff is reminded, that Under the California Government Claims Act, set forth in 12 California Government Code sections 810 et seq., a plaintiff may not bring a suit for monetary 13 damages against a public employee or entity unless the plaintiff first presented the claim to the 14 California Victim Compensation and Government Claims Board ("Board"), and the Board acted 15 on the claim, or the time for doing so expired. Compliance with this "claim presentation 16 requirement" constitutes an element of a cause of action for damages against a public entity or 17 official. State v. Superior Court (Bodde), 32 Cal. 4th 1234, 1244, 13 Cal. Rptr. 3d 534, 90 P.3d 18 116 (2004). Thus, timely presentation of a claim under the Government Claims Act is an element 19 of the cause of action and must be pled in the complaint. Id. at 1237, 1240; see also Mangold v. 20 Cal. Pub. Utils. Comm'n, 67 F.3d. 1470, 1477 (9th Cir. 1995). The plaintiff must present facts 21 demonstrating compliance, rather than simply conclusions suggesting as much. Shirk v. Vista 22 Unified School Dist., 42 Cal. 4th 201, 209, 64 Cal. Rptr. 3d 210, 164 P.3d 630 (2007), as 23 modified (Oct. 10, 2007). Such requirements apply to state law claims [*6] included in a federal 24 action under § 1983. See Volis v. Housing Auth. of the City of L.A. Emps., 670 F. App'x 543, 25 544 (9th Cir. 2016). 26 To be timely, a claim must be presented to the Board "not later than six months after the 27 accrual of the cause of action." Cal. Govt. Code § 911.2. Thereafter, "any suit brought against a 28 public entity" must be commenced no more than six months after the public entity rejects the 1 claim. Cal. Govt. Code, § 945.6, subd. (a)(1). Federal courts must require compliance with the 2 California Government Claims Act for pendant state law claims that seek damages against state 3 employees or entities. Willis v. Reddin, 418 F.2d 702, 704 (9th Cir. 1969); Mangold, 67 F.3d at 4 1477. State tort claims included in a federal action, filed pursuant to 42 U.S.C. § 1983, may 5 proceed only if the claims were presented in compliance with the applicable exhaustion 6 requirements. Karim-Panahi v. Los Angeles Police Department, 839 F.2d 621, 627 (9th Cir. 7 1988); Butler v. Los Angeles County, 617 F. Supp. 2d 994, 1001 (C.D. Cal. 2008). 8 Here, Plaintiff’s request for a ninety-day extension of time so that he can pursue state 9 pendent claims may be unwarranted for the following reasons: 1- he has not shown that prior to 10 filing his original complaint he filed a claim with the State within 6 months after the actions he 11 sets forth in his original complaint accrued. Additionally, given the fact that Plaintiff filed his 12 original complaint in December 2023, suggests that the actions/claims contained therein may 13 have acquired a degree of permanence such that those actions/claims will not find refuge in the 14 Continuing Violation Doctrine allowing Plaintiff to use subsequent events to extend the duration 15 of time in which to satisfy the 6 month claim requirement. See, Willis v City of Carlsbad, 48 Cal. 16 App 5 1104); 2- as for actions occurring subsequent to the filing of Plaintiff’s original complaint, 17 for which Plaintiff now seeks to add in his 3AC, he is again advised that as to those actions he 18 must not only comply with Rule 20 (see below), he must also comply with the requirements of 19 the California Government Claims Act. 20 E. Rule 20 21 As Plaintiff was advised in the Court’s recent screening order (ECF. Doc #25), once a 22 complaint has been filed, a plaintiff may not add additional, unrelated claims or parties to it. See 23 Fed. R. Civ. P. 20(a)(2) (stating defendants may only be joined in one action if claims arise from 24 “same transaction, occurrence, or series of transactions or occurrences”); see also George v. 25 Smith, 507 F.3d 605, 607 (7th Cir. 2007) (stating plaintiff may not change nature of suit by 26 alleging new, unrelated claims). Plaintiff is again instructed that “Under Rule 20 of the Federal 27 Rules of Civil Procedure, a plaintiff may join any persons as defendants if: (1) any right to relief 28 asserted against the defendants relates to or arises out of the same transaction, occurrence, or 1 series of transactions or occurrences; and (2) there is at least one question of law or fact common 2 to all the defendants.” Fed. R. Civ. P. 20(a); Coughlin v. Rogers, 130 F.3d 1348, 1351 (9th Cir. 3 1997). Importantly, "Unrelated claims against different defendants belong in different suits," not 4 only to prevent the sort of "morass" that a multi-claim, multi-defendant suit can produce, "but 5 also to ensure that prisoners pay the required filing fees - for the Prison Litigation Reform Act 6 limits to 3 the number of frivolous suits or appeals that any prisoner may file without prepayment 7 of required fees." Id. (citing 28 U.S.C. § 1915(g)). 8 Plaintiff’s original complaint alleged three claims: First Amendment retaliation, and 9 retaliation in violation of the Americans with Disabilities Act and the Rehabilitation Act. See 10 ECF No. 1 at 3-5. Four individuals were named as defendants. See id. at 1-2. No additional 11 defendants or claims should be added to Plaintiff’s amended complaint unless those claims arise 12 out of the same transaction or occurrence, which, in this case, is Plaintiff’s alleged improper 13 transfer from the Francisquito Fire Camp. See generally id. at 3-5. Thus, to the extent Plaintiff 14 states in the instant extension of time request that there is “continuing, escalating, adverse 15 conduct committed by a growing number of Defendants against [him],” (see ECF No. 26 at 1-2) 16 (brackets added), without more, these conjectural and ambiguous statements – which may be 17 untethered to any of Plaintiff’s original three claims – further support the Court’s decision at this 18 time to deny Plaintiff’s request for a ninety-day extension of time to file a third amended 19 complaint. 20 F. Exhaustion Requirement for New Claims 21 As to Plaintiff’s intent to add additional claims to his amended complaint, he must adhere 22 to the following requirements. 23 Section 1997e(a) of the Prison Litigation Reform Act of 1995 provides that "[n]o action 24 shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal 25 law, by a prisoner confined in any jail, prison, or other correctional facility until such 26 administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). 27 Prisoners are required to exhaust the available administrative remedies prior to filing suit. Jones 28 v. Bock, 549 U.S. 199, 211, 127 S. Ct. 910, 166 L. Ed. 2d 798 (2007); McKinney v. Carey, 311 1 F.3d 1198, 1199-1201 (9th Cir. 2002) (per curiam). If, however, a plaintiff files an amended 2 complaint adding new claims, the plaintiff may proceed on the new claims if those claims were 3 fully exhausted before tendering the amended complaint for filing. Rhodes v. Robinson, 621 F.3d 4 1002 (9th Cir. 2010). As long as those new claims are fully [*5] exhausted at the time the 5 amended complaint is filed, it does not matter whether the new claims arose before or after the 6 date on which the initial complaint was filed; the claims can proceed as long as they are new 7 claims that were not alleged in the initial complaint, and are fully exhausted prior to the filing of 8 the amended complaint. See Cano v. Taylor, 739 F.3d 1214, 1220-21 (9th Cir. 2014) (allowing 9 amended complaint to proceed on new claims that arose prior to the date on which the initial 10 complaint was filed); Akhtar v. Mesa, 698 F.3d 1202, 1210 (9th Cir. 2012) (allowing amended 11 complaint alleging new claims that arose after the initial complaint was filed). 12 13 Accordingly, IT IS HEREBY ORDERED that: 14 1. Plaintiff’s request for a copy of his filed second amended complaint (see ECF No. 26 15 at 2-3) is GRANTED; 16 2. As a one-time courtesy, the Clerk of Court shall send Plaintiff a copy of his second 17 amended complaint. See ECF No. 24. 18 3. Plaintiff’s motion for a ninety-day extension of time to file his third amended 19 complaint (ECF No. 26) is GRANTED IN PART to the extent that it requests an extension of 20 time to file the third amended complaint, but DENIED IN PART to the extent it requests a ninety- 21 day-period to do so; 22 4. Within forty-five days from the date of this order, Plaintiff shall file a third amended 23 complaint, and 24 5. Within fourteen days from the date of this order, Plaintiff shall file a notice which 25 informs the Court precisely why he does not have access to a law library, and how this lack of 26 access is affecting, or has affected, his ability to prosecute this case. See ECF No. 26 at 1. 27 Plaintiff is cautioned that failure to comply with this order within the times allotted 28 may result in a recommendation that this matter be dismissed. 1 IT IS SO ORDERED. 2

3 Dated: December 13, 2024 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 4

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