(PC) Jackson v. Biter

• Court: District Court, E.D. California
• Decided: August 4, 2021
• Docket: 1:21-cv-00774
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 FRED JACKSON, Case No. 1:21-cv-0774-BAM (PC) 12 Plaintiff, ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT 13 v. JUDGE TO ACTION

14 BITER., FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF 15 Defendant. ACTION WITH PREJUDICE FOR FAILURE TO STATE A COGNIZABLE CLAIM FOR 16 RELIEF

17 (ECF No. 1) 18 FOURTEEN (14) DAY DEADLINE 19 Plaintiff Fred Jackson (“Plaintiff”) is a state prisoner proceeding pro se and in forma 20 pauperis in this civil rights action under 42 U.S.C. § 1983. Plaintiff’s complaint, filed on May 21 13, 2021, is currently before the Court for screening. (ECF No. 1.) 22 I. Screening Requirement and Standard 23 The Court is required to screen complaints brought by prisoners seeking relief against a 24 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. 25 § 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous 26 or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary 27 relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b). 28 1 A complaint must contain “a short and plain statement of the claim showing that the 2 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 3 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 4 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 5 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken 6 as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, 7 Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 8 To survive screening, Plaintiff’s claims must be facially plausible, which requires 9 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable 10 for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret 11 Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully 12 is not sufficient, and mere consistency with liability falls short of satisfying the plausibility 13 standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969. II. Plaintiff’s Allegations 14 Plaintiff is currently housed at California Correctional Institution in Tehachapi, California. 15 Plaintiff alleges events in the complaint occurred at Kern Valley State Prison. Plaintiff names 16 M.D. Biter, Warden, as the sole defendant. 17 Plaintiff alleges as follows. In a prior action, Plaintiff sued Defendant M.D. Biter, 18 Warden, for alleged prolonged exposure to arsenic in water. Jackson v. Biter et al., Kern County 19 Superior Court, CV-281820 (“Biter I”). On January 22, 2018, Plaintiff was denied access to 20 appear at his Biter I court hearing on summary judgment and for appointment of an expert 21 witness. The expert witness Plaintiff requested to be appointed in Biter I would show Plaintiff’s 22 causation of arsenic long term poisoning and injuries of enlarged prostrate and white 23 pigmentation spots. Judge Schuett made a court order for the warden to make Plaintiff available 24 by telephone court call appearance for a motion for summary judgment brought by Defendant. 25 The prison counselor responsible for making that call lied to Plaintiff claiming she called the 26 court, but the court records reflect that she never called into the court for the hearing. Plaintiff 27 was blamed for the nonappearance because of the counselor’s intentional obstruction and refusing 28 1 to call the court, which denied Plaintiff access to court. Plaintiff was denied access to the court in 2 Biter I for the hearing on the court appointed expert and to respond to defendant’s objections to 3 Plaintiff’s evidence. The judge blamed Plaintiff for not appearing and dismissed the court 4 appointed expert hearing and granted summary judgment for defendant. If Plaintiff had not been 5 denied the appearance, a more favorable outcome would have happened because the court 6 appointed expert would have confirmed the 3-7 years for white pigmentation spots to manifest 7 and not the 20 years as opined by defendant’s expert. 8 At the hearing, Plaintiff could have proved he was eligible for the court fee waivers under 9 state law due to his poverty level. Plaintiff’s appearance would have allowed the court to appoint 10 an expert witness to testify about any disputed facts in the case consistent with long term arsenic 11 exposure. Being denied appearance at the expert witness hearing destroyed Plaintiff’s case and 12 prevented him from moving forward to trial after years of litigation. The judge made a court order 13 to have Plaintiff appear, and Plaintiff cannot force prison officials to have him appear. But the blame was placed all on Plaintiff for not appearing. Plaintiff claims that the denial of allowing 14 him to appear at the court hearing was a deprivation of due process/equal protection. Because 15 Plaintiff was not allowed to make the court appearance, the court ruled against Plaintiff on 16 discovery evidence and production of documents which was excluded. Plaintiff seems to also 17 challenge the trial judge’s decision to exclude evidence and grant summary judgment against 18 Plaintiff as an abuse of discretion. 19 Plaintiff alleges that on January 17, 2018, in Biter I, the Attorney General delivered the 20 opposition to Plaintiff’s response regarding evidence to the summary judgment. The delivery did 21 not give Plaintiff time to respond in writing due to the prison mail system. Defendant’s counsel 22 was aware that Plaintiff would not be able to respond in writing before the court hearing on 23 January 22, 2018 and Plaintiff would be required to orally present his objection. Plaintiff was not 24 allowed to appear on the court call, and the trial judge immediately granted defendant’s motion, 25 cancelled Plaintiff’s expert witness appointment hearing, and denied Plaintiff’s critical index of 26 evidence. Plaintiff’s evidence was excluded due to his denial to appear in court. Plaintiff does 27 not identify the remedies he seeks. 28 1 III. Discussion 2 Plaintiff’s complaint fails to state a cognizable claim for relief. 3 A. Supervisor Liability 4 Insofar as Plaintiff is attempting to sue Defendant Biter as a supervisor, based solely upon 5 his supervisory role, he may not do so. Liability may not be imposed on supervisory personnel for 6 the actions or omissions of their subordinates under the theory of respondeat superior. Iqbal, 556 7 U.S. at 676–77; Simmons v. Navajo Cty., Ariz., 609 F.3d 1011, 1020–21 (9th Cir. 2010); Ewing v. 8 City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones v. Williams, 297 F.3d 930, 934 (9th 9 Cir. 2002) 10 Supervisors may be held liable only if they “participated in or directed the violations, or 11 knew of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th 12 Cir. 1989); accord Starr v. Baca, 652 F.3d 1202, 1205–06 (9th Cir. 2011); Corales v. Bennett, 13 567 F.3d 554, 570 (9th Cir. 2009). Supervisory liability may also exist without any personal participation if the official implemented “a policy so deficient that the policy itself is a 14 repudiation of the constitutional rights and is the moving force of the constitutional violation.” 15 Redman v. Cty. of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (citations and quotations 16 marks omitted), abrogated on other grounds by Farmer v. Brennan, 511 U.S. 825 (1970). 17 To prove liability for an action or policy, the plaintiff “must... demonstrate that his 18 deprivation resulted from an official policy or custom established by a... policymaker possessed 19 with final authority to establish that policy.” Waggy v. Spokane County Washington, 594 F.3d 20 707, 713 (9th Cir.2010). When a defendant holds a supervisory position, the causal link between 21 such defendant and the claimed constitutional violation must be specifically alleged. See Fayle v. 22 Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 23 1978). Vague and conclusory allegations concerning the involvement of supervisory personnel in 24 civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 25 1982). 26 Plaintiff’s conclusory statements, without factual support, are insufficient to state a 27 cognizable claim of supervisory liability. See Iqbal, 556 U.S. at 678. Plaintiff has failed to allege 28 1 facts to support that any supervisory Defendant participated in or directed the violations, or knew 2 of the violations and failed to act to prevent them. Plaintiff also has failed to plead facts showing 3 that any policy was a moving force behind the assault. See Willard v. Cal. Dep't of Corr. & 4 Rehab., No. 14-0760, 2014 WL 6901849, at *4 (E.D. Cal. Dec. 5, 2014) (“To premise a 5 supervisor's alleged liability on a policy promulgated by the supervisor, plaintiff must identify a 6 specific policy and establish a ‘direct causal link’ between that policy and the alleged 7 constitutional deprivation.”). 8 While Plaintiff alleges that Defendant Biter was ordered by the court in Biter I to allow 9 Plaintiff to appear at the hearing, Plaintiff alleges that actions of another person, the prison 10 counselor and not the warden, were responsible for Plaintiff’s nonappearance. Defendant Biter 11 did not directly participate in or direct the violation. 12 B. First Amendment – Access to Court 13 Plaintiff appears to argue his case is a Fourteenth Amendment Due Process or Equal Protection claim. However, his claim of being shut out of court due to prison officials refusing to 14 produce him for a hearing is a First Amendment claim. 15 Prisoners have a First Amendment right of access to the courts. See Lewis v. Casey, 518 16 U.S. 343, 346 (1996). Inmates have a “ ‘fundamental constitutional right of access to the courts.’ 17 ” Lewis v. Casey, 518 U.S. 343, 346 (1996) (quoting Bounds v. Smith, 430 U.S. 817, 828 (1977)). 18 However, the right is limited to direct criminal appeals, habeas petitions, and civil rights actions. 19 Id. at 354 (citations omitted). Claims for denial of access to the courts may arise from the 20 frustration or hindrance of “a litigating opportunity yet to be gained” (forward-looking access 21 claim) or from the loss of a meritorious suit that cannot now be tried (backward-looking claim). 22 Christopher v. Harbury, 536 U.S. 403, 412-15 (2002). To state a claim based on denial of access 23 to the courts, a plaintiff must allege facts demonstrating that he suffered an actual injury by being 24 shut out of court. Id. at 415; Lewis, 518 U.S. at 351. Additionally, to properly plead a denial of 25 access to the courts claim, “the complaint should state the underlying claim in accordance with 26 Federal Rule of Civil Procedure 8(a), just as if it were being independently pursued, and a like 27 plain statement should describe any remedy available under the access claim and presently unique 28 1 to it.” Christopher, 536 U.S. at 417-18 (footnote omitted). 2 Here, Plaintiff alleges that he lost an existing case in Biter I, and therefore asserts a 3 “backward looking claim.” When a prisoner asserts a backward-looking claim, “he must show: 4 1) the loss of a ‘non-frivolous’ or ‘arguable’ underlying claim; 2) the official acts frustrating the 5 litigation; and 3) a remedy that may be awarded as recompense but that is not otherwise available 6 in a future suit.” Phillips v. Hust, 477 F.3d 1070, 1076 (9th Cir.2007) (citing Christopher, 536 7 U.S. at 413-414), overruled on other grounds by Hust v. Phillips, 555 U.S. 1150 (2009). 8 The Court has reviewed the records attached to the complaint and takes judicial notice of 9 the court records. United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980) (The court may take 10 judicial notice of court records. ). In Biter I, after the trial court entered judgment against 11 Plaintiff in the action, Plaintiff appealed the judgment. The Court of Appeal for the Fifth District 12 entered a decision on December 3, 2020 on Plaintiff’s appeal, which states the procedural history 13 of the case. (Appellate Decision, Doc. 1, p. 15 of 67.) In the appeal, among other things, Plaintiff argued that he required an expert to be appointed and that he was prevented from appearing at the 14 hearing by a prison employee who refused to wait and hung up before his appearance. (Appellate 15 Decision, Doc. 1, p. 17 of 67.) 16 The Court of Appeal addressed all of Plaintiff’s arguments. First, the Court of Appeal 17 addressed Plaintiff’s request for appointment of an expert and the trial court’s denial of a court 18 appointed expert. (Doc. 1, p. 21-22.) The Court held that, “[California] Evidence Code 731, 19 subdivision (c) does not authorize the court to appoint an expert for a party at public expense,” 20 and therefore, “the trial court did not abuse its discretion in denying Plaintiff’s motions for 21 appointment of an expert witness at public expense.” (Doc. 1, p. 22.) The Court of Appeal held 22 that Plaintiff had no right to be appointed an expert, and the trial court acted properly in refusing 23 to do so at public expense. 24 In the appeal, Plaintiff also argued that he was prevented from appearing at the summary 25 judgment hearing and that he wanted oral argument to address evidentiary objections raised by 26 defendant. The Court of Appeal addressed the issue of Plaintiff’s failure to appear at the 27 summary judgment hearing. The appellate court noted that the judgment was entered based upon 28 1 the lack of merits of Plaintiff’s case, rather than upon any failure to appear: 2 “Initially, we reject Plaintiff’s suggestion which was based on Kern County Local Rule 2.62, that the trial court dismissed his action due to his failure to appear at the 3 hearing. The judgment clearly stated it was based on the granting of defendant’s summary judgment motion; the order granting that motion found defendant met his 4 burden of showing plaintiff could not prove an essential element of his cause of 5 action, plaintiff did not raise a triable issue of material fact, and defendant was entitled to judgment as a matter of law. Thus, the judgment was based on the 6 merits of the motion, not on plaintiff’s failure to appear at the hearing.” (Doc. 1, p.25 of 67.) 7

The Court of Appeal further addressed Plaintiff’s contentions that the defendant’s 8 objections to his evidence in Biter I were not properly served and he was not able to 9 oppose the objections because he did not appear at the hearing. (Doc. 1 p. 25.) However, 10 the Court of Appeal noted that Plaintiff failed to address in the appeal the merits of the 11 objections that defendant raised to plaintiff’s evidence nor did plaintiff challenge the 12 sufficiency of the evidence presented by defendant to meet defendant’s burden on the 13 summary judgment. The Court held on appeal, “Because plaintiff has not demonstrated 14 defendant’s objections were wrongly sustained, we cannot consider the evidence to which 15 the trial court sustained objections.” (Doc. 1, p. 27.) 16 Based on the above, Plaintiff does not state a cognizable First Amendment claim 17 because Plaintiff cannot show the loss of a ‘non-frivolous’ or ‘arguable’ underlying claim. 18 Plaintiff’s allegations that he was denied an expert, was prevented from appearing at the 19 hearing, the summary judgment was granted against him, are not meritorious. Each of the 20 arguments were raised on Plaintiff’s appeal of the trial court’s decision and addressed by 21 the Court of Appeal. As noted in the appeal, Plaintiff lost in Biter I because of the failure 22 of proof on his part and he was not entitled to appointment of an expert for his case. 23 Therefore, Plaintiff does not have a meritorious underlying claim; he did not lose a ‘non- 24 frivolous’ or ‘arguable’ underlying claim. Plaintiff merely seeks to use this Section 1983 25 action as way to collaterally attack the trial court judgment and appellate decision in Biter 26 I. Section 1983 is not a method to re-adjudicate an action. 27

28 1 C. Claim Preclusion – Res Judicata 2 “Under the doctrine of claim preclusion, a final judgment forecloses successive 3 litigation of the very same claim, whether or not relitigation of the claim raises the same 4 issues as the earlier suit.” Taylor v. Sturgell, 553 U.S. 880. 892 (2008). Put another way, 5 “[c]laim preclusion bars a party in successive litigation from pursuing claims that were 6 raised or could have been raised in a prior action.” Media Rights Techs., Inc. v. Microsoft 7 Corp., 922 F.3d 1014, 1020 (9th Cir. 2019) (quotation marks and internal alterations 8 omitted). Claim preclusion “applies when the earlier suit (1) involved the same ‘claim’ or 9 cause of action as the later suit, (2) reached a final judgment on the merits, and (3) 10 involved identical parties or privies.” Mpoyo v. Litton Electro-Optical Sys., 430 F.3d 985, 11 987 (9th Cir. 2005) (internal alterations and quotation marks omitted); see also Howard v. 12 City of Coos Bay, 871 F.3d 1032, 1039 (“Claim preclusion requires ‘(1) an identity of 13 claims, (2) a final judgment on the merits, and (3) privity between parties.’ ”). Identity of Claims 14 The Court employs four criteria to determine whether claims are identical: “(1) 15 whether rights or interests established in the prior judgment would be destroyed or 16 impaired by prosecution of the second action; (2) whether substantially the same evidence 17 is presented in the two actions; (3) whether the two suits involve infringement of the same 18 right; and (4) whether the two suits arise out of the same transaction nucleus of facts.” 19 Harris v. County of Orange, 682 F.3d 1126, 1132 (9th Cir. 2012) (internal quotation 20 marks and citation omitted). “The fourth criterion is the most important.” Id. 21 After careful consideration of both actions, the Court determines that the 22 allegations in this action arise out of the same nucleus of facts and allege infringement of 23 the same rights as those alleged in Biter I. In both Biter I and this action, Plaintiff alleges 24 that he was exposed to long term arsenic and he was prevented from presenting evidence 25 and attending his summary judgment hearing, his expert appointment motion was denied 26 and judgment was entered against him. Plaintiff is attempting to relitigate the Biter I 27 action with the same evidence for the violation of the same rights, arising from the same 28 1 nucleus of facts. Therefore, the Court determines that there is an identity of claims as 2 involved in Biter I. Mpoyo, 430 F.3d at 987. “Under the Federal Full Faith and Credit 3 Statute, 28 U.S.C. § 1738, ‘a federal court must give to a state-court judgment the same 4 preclusive effect as would be given that judgment under the law of the State in which the 5 judgment was rendered.’ ” Takahashi v. Bd. of Trustees of Livingston Union Sch. Dist., 6 783 F.2d 848, 850 (9th Cir. 1986) (quoting Migra v. Warren City Sch. Dist. Bd. of Educ., 7 465 U.S. 75, 81 (1984)); 8 While this current action potentially alleges a “denial of access to court,” Plaintiff 9 is challenging the same facts that were adjudicated in the underlying action, Biter I: he 10 was not allowed to appear at the summary judgment hearing, his evidence was denied, an 11 expert was not appointed, and judgment was entered against him. Plaintiff’s purported 12 injury arises out of conduct during Biter I. “If two actions involve the same injury to the 13 plaintiff and the same wrong by the defendant, then the same primary right is at stake even if in the second suit the plaintiff pleads different theories of recovery, seeks different 14 forms of relief and/or adds new facts supporting recovery. City of Martinez v. Texaco 15 Trading & Transp., Inc., 353 F.3d 758, 762 (9th Cir. 2003)). 16 Final Judgment on the Merits 17 As described above, there was a judgment on the merits in Biter I and an appeal of 18 the judgment. The California Supreme Court denied the petition for review. (Doc. 1, p. 19 10 of 67.) The judgment is final. 20 Privity Between Parties 21 Third, the Court notes that Plaintiff was also the Plaintiff in Biter I and that 22 Defendant Biter was also named as a Defendant in Biter I. Since Plaintiff and Defendant 23 Biter are identical parties, they are quite obviously in privity. Tahoe-Sierra Pres. Council, 24 Inc. v. Tahoe Reg'l Planning Agency, 322 F.3d 1064, 1081 (9th Cir. 2003). The claims at 25 issue in this case were fully adjudicated in Biter I, regardless of the responsible party for 26 preventing Plaintiff’s appearance at the hearing.1 Therefore, the Court determines that the 27

28 1 As noted above, Plaintiff cannot to state a 'non-frivolous' or 'arguable' underlying claim for 1 third element for the application of claim preclusion is met. 2 Consequently, as all three elements of res judicata are satisfied, Plaintiff's claims 3 against Defendant Biter in this action are barred by res judicata. 4 D. Judicial Immunity 5 It is unclear whether Plaintiff is seeking to bring a claim against Judge Schuett, 6 who presided over Biter I. Absolute judicial immunity is afforded to judges for acts 7 performed by the judge that relate to the judicial process. In re Castillo, 297 F.3d 940, 947 8 (9th Cir. 2002), as amended (Sept. 6, 2002). “This immunity reflects the long-standing 9 ‘general principle of the highest importance to the proper administration of justice that a 10 judicial officer, in exercising the authority vested in him, shall be free to act upon his own 11 convictions, without apprehension of personal consequences to himself.’ ” Olsen v. Idaho 12 State Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004). This judicial immunity insulates 13 judges from suits brought under section 1983. Olsen, 363 F.3d at 923. Plaintiff cannot assert a §1983 action against Judge Schuett. 14 IV. Conclusion and Order 15 Plaintiff has failed to state a cognizable claim against the named defendant. The 16 deficiencies in the complaint that cannot be cured by amendment. Therefore, the Court concludes 17 that granting leave to amend would be futile. 18 The Court HEREBY ORDERS the Clerk of the Court to randomly assign a district judge 19 to this action. 20 Based on the above, IT IS HEREBY RECOMMENDED THAT this action be dismissed, 21 with prejudice, based on Plaintiff’s failure to state a cognizable claim upon which relief may be 22 granted. 23 These Findings and Recommendation will be submitted to the United States District Judge 24 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 25 (14) days after being served with these Findings and Recommendation, Plaintiff may file written 26 27 violation of First Amendment access to courts, regardless of the responsible party for preventing 28 Plaintiff’s appearance at the hearing. 1 objections with the Court. The document should be captioned “Objections to Magistrate Judge's 2 Findings and Recommendation.” Plaintiff is advised that failure to file objections within the 3 specified time may result in the waiver of the “right to challenge the magistrate's factual findings” 4 on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 5 F.2d 1391, 1394 (9th Cir. 1991)). 6 7 IT IS SO ORDERED.

8 Dated: August 4, 2021 /s/ Barbara A. McAuliffe _ 9 UNITED STATES MAGISTRATE JUDGE

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