(PC) Storm v. Newsom

• Court: District Court, E.D. California
• Decided: January 6, 2025
• Docket: 1:24-cv-00236
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DIMITRI Z. STORM, Case No. 1:24-cv-00236-KES-BAM (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION, WITH PREJUDICE, FOR 13 v. FAILURE TO STATE A CLAIM, FAILURE TO OBEY COURT ORDER, AND FAILURE 14 NEWSOM, et al., TO PROSECUTE 15 Defendants. (ECF No. 14) 16 FOURTEEN (14) DAY DEADLINE 17 18 I. Background 19 Plaintiff Dimitri Z. Storm (“Plaintiff”) is a state prisoner proceeding pro se and in forma 20 pauperis in this civil rights action under 42 U.S.C. § 1983. 21 On August 22, 2024, the Court screened the complaint and found that it failed to comply 22 with Federal Rule of Civil Procedure 8 and failed to state a cognizable claim for relief. (ECF No. 23 9.) The Court issued a screening order granting Plaintiff leave to file a first amended complaint 24 or a notice of voluntary dismissal within thirty (30) days. (Id.) The Court expressly warned 25 Plaintiff that the failure to comply with the Court’s order would result in a recommendation for 26 dismissal of this action, with prejudice. (Id. at 8.) On October 10, 2024, following Plaintiff’s 27 failure to file an amended complaint, the Court issued findings and recommendations to dismiss 28 this action, with prejudice, for failure to state a claim, failure to obey a court order, and failure to 1 prosecute. (ECF No. 12.) Plaintiff filed objections on October 29, 2024, stating that he had 2 already sent an amended complaint to the Court. (ECF No. 13.) Plaintiff implied that the 3 amended complaint had been destroyed by staff at Plaintiff’s institution and requested an 4 extension of time to file another amended complaint. (Id.) 5 The Court found it appropriate to vacate the pending findings and recommendations, and 6 granted Plaintiff a thirty-day extension of time to file an amended complaint. (ECF No. 14.) 7 Plaintiff was again warned that failure to file a first amended complaint would result in dismissal 8 of this action, with prejudice, for failure to obey a court order and failure to state a claim. (Id. at 9 3.) Plaintiff has not filed a first amended complaint or otherwise communicated with the Court, 10 and the deadline to do so has expired. 11 II. Failure to State a Claim 12 A. Screening Requirement 13 The Court is required to screen complaints brought by prisoners seeking relief against a 14 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. 15 § 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous 16 or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary 17 relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b). 18 A complaint must contain “a short and plain statement of the claim showing that the 19 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 20 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 21 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 22 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as 23 true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 24 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 25 To survive screening, Plaintiff’s claims must be facially plausible, which requires 26 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable 27 for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret 28 Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully 1 is not sufficient, and mere consistency with liability falls short of satisfying the plausibility 2 standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969. 3 B. Plaintiff’s Allegations 4 Plaintiff is currently housed at California Substance Abuse Treatment Facility (“SATF”). 5 Plaintiff names as defendants: (1) Gavin Newsom, Governor, (2) Robert Bonta, California 6 Attorney General, (3) B. Phillips, Warden of SATF. Plaintiff also attempts to name defendants 7 “CSATF CDCR staff: all.” As best the Court can determine, Plaintiff alleges as follows.1 8 Plaintiff alleges the Warden of SATF, officers of California Department of Corrections 9 Rehabilitation (“CDCR”), and staff at SATF have been involved in handling Plaintiff’s property 10 and effects. Plaintiff alleges they are now in possession of his J-Pay tablet that was illegally 11 stolen along with legal documents and files sent to Plaintiff from the FBI, CIA, and DIA and 12 other entities. They engaged in a conspiracy to defraud and steal Plaintiff’s personal property. 13 SATF “E” Facility CDCR officers still have possession of his stolen J-pay tablet and his legal 14 documents and files that they stole from Plaintiff on March 21, 2023 in Building #5. Plaintiff 15 alleges conspiracy, theft, forgery involving CDCR officers for false statements and false reports 16 and tampering with evidence. 17 C. Discussion 18 Plaintiff’s complaint fails to comply with Federal Rule of Civil Procedure 8 and fails to 19 state a cognizable claim under 42 U.S.C. § 1983. 20 1. Federal Rule of Civil Procedure 8 21 Pursuant to Federal Rule of Civil Procedure 8, a complaint must contain “a short and plain 22 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). 23 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause 24 of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678

25 1 On the form complaint, Plaintiff has checked the box that the complaint is pursuant to 28 U.S.C §1343(a) and 42 U.S.C. §1983. Plaintiff has also entitled the complaint as “Writ Habeas Corpus” and Petition for Preliminary 26 Injunction. The Court addressed the request for a preliminary injunction by separate order. To the extent Plaintiff is attempting to challenge his conviction or the validity of his continued confinement, the exclusive method for 27 asserting that challenge is by filing a petition for a writ of habeas corpus. It has long been established that state prisoners cannot challenge the fact or duration of their confinement in a section 1983 action and their sole remedy 28 lies in habeas corpus relief. Wilkinson v. Dotson, 544 U.S. 74, 78 (2005). 1 (citation omitted). Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a 2 claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. 3 at 555). While factual allegations are accepted as true, legal conclusions are not. Id.; see also 4 Twombly, 550 U.S. at 556–57. 5 Plaintiff’s complaint is relatively short but it is not plain statement of his claims. Many of 6 Plaintiff’s allegations are conclusory do not state what happened, when it happened, or which 7 defendant was involved. He fails to state the factual basis for the conclusions. 8 In addition, Plaintiff attaches numerous exhibits to his complaint. While “much liberality 9 is allowed in construing pro se complaints, a pro se litigant cannot simply dump a stack of 10 exhibits on the court and expect the court to sift through them to determine if some nugget is 11 buried somewhere in that mountain of papers, waiting to be unearthed and refined into a 12 cognizable claim.” Samtani v. City of Laredo, 274 F. Supp. 3d 695, 698 (S.D. Tex. 2017). “The 13 Court will not comb through attached exhibits seeking to determine whether a claim possibly 14 could have been stated where the pleading itself does not state a claim. In short, [Plaintiff] must 15 state a claim, not merely attach exhibits.” Stewart v. Nevada, No. 2:09-CV-01063-PMP-GWF, 16 2011 WL 588485, at *2 (D. Nev. Feb. 9, 2011). 17 2. Linkage Requirement 18 The Civil Rights Act under which this action was filed provides:

19 Every person who, under color of [state law] ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or 20 immunities secured by the Constitution ... shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 21 22 42 U.S.C. § 1983. The statute plainly requires that there be an actual connection or link between 23 the actions of the defendants and the deprivation alleged to have been suffered by Plaintiff. See 24 Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). The 25 Ninth Circuit has held that “[a] person ‘subjects’ another to the deprivation of a constitutional 26 right, within the meaning of section 1983, if he does an affirmative act, participates in another’s 27 affirmative acts or omits to perform an act which he is legally required to do that causes the 28 deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 1 Here, Plaintiff’s complaint fails to link any Defendant to any wrongful conduct. Further, 2 Plaintiff refers to all CDCR officers and staff as defendants, but fails to name any specific officer 3 or staff person as a defendant and link that specific person to allegedly wrongful conduct. The 4 complaint’s caption must contain the names of the defendants discussed in the body of the 5 complaint. See Fed. R. Civ. P. 10(a) (Rule 10(a) requires that plaintiffs include the names of all 6 parties in the caption of the complaint). Groups of defendants violate Rule 10. 7 3. Supervisor Liability 8 Insofar as Plaintiff is attempting to sue Defendant Warden, or any other defendant, based 9 solely upon his supervisory role, he may not do so. Liability may not be imposed on supervisory 10 personnel for the actions or omissions of their subordinates under the theory of respondeat 11 superior. Iqbal, 556 U.S. at 676–77; Simmons v. Navajo Cty., Ariz., 609 F.3d 1011, 1020–21 (9th 12 Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones v. Williams, 13 297 F.3d 930, 934 (9th Cir. 2002). 14 Supervisors may be held liable only if they “participated in or directed the violations, or 15 knew of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 16 (9th Cir. 1989); accord Starr v. Baca, 652 F.3d 1202, 1205–06 (9th Cir. 2011); Corales v. 17 Bennett, 567 F.3d 554, 570 (9th Cir. 2009). “The requisite causal connection may be established 18 when an official sets in motion a ‘series of acts by others which the actor knows or reasonably 19 should know would cause others to inflict’ constitutional harms.” Corales v. Bennett, 567 F.3d at 20 570. Supervisory liability may also exist without any personal participation if the official 21 implemented “a policy so deficient that the policy itself is a repudiation of the constitutional 22 rights and is the moving force of the constitutional violation.” Redman v. Cty. of San Diego, 942 23 F.2d 1435, 1446 (9th Cir. 1991) (citations and quotations marks omitted), abrogated on other 24 grounds by Farmer v. Brennan, 511 U.S. 825 (1970). When a defendant holds a supervisory 25 position, the causal link between such defendant and the claimed constitutional violation must be 26 specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 27 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations concerning the involvement 28 of supervisory personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 1 673 F.2d 266, 268 (9th Cir. 1982). 2 4. Fourteenth Amendment – Property Deprivation 3 Insofar as Plaintiff also alleges that any Defendant wrongfully took his property, these 4 allegations also are not sufficient to support a cognizable claim. Prisoners have a protected 5 interest in their personal property. Hansen v. May, 502 F.2d 728, 730 (9th Cir. 1974). An 6 authorized, intentional deprivation of property is actionable under the Due Process Clause. See 7 Hudson v. Palmer, 468 U.S. 517, 532 n.13 (1984) (citing Logan v. Zimmerman Brush Co., 455 8 U.S. 422, 435–36 (1982)); Quick v. Jones, 754 F.2d 1521, 1524 (9th Cir. 1985). However, “an 9 unauthorized intentional deprivation of property by a state employee does not constitute a 10 violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment 11 if a meaningful post deprivation remedy for the loss is available.” Hudson, 468 U.S. at 533. 12 Plaintiff contends that unnamed CDCR officers and staff took his property. As it appears 13 that such conduct was an unauthorized deprivation of property, due process is satisfied if there is 14 a meaningful post-deprivation remedy available to Plaintiff. Id. Plaintiff has an adequate post- 15 deprivation remedy available under California law. Barnett v. Centoni, 31 F.3d 813, 816–17 (9th 16 Cir. 1994) (citing Cal. Gov’t Code §§ 810–95). Therefore, Plaintiff fails to allege a cognizable 17 due process claim for the alleged deprivation of his property. 18 5. False Reports 19 The creation of false evidence, standing alone, is not actionable under § 1983. See 20 Hernandez v. Johnston, 833 F.2d 1316, 1319 (9th Cir. 1987) (independent right to accurate prison 21 record has not been recognized); Johnson v. Felker, No. 1:12–cv–02719 GEB KJN (PC), 2013 22 WL 6243280, at *6 (E.D. Cal. Dec. 3, 2013) (“Prisoners have no constitutionally guaranteed right 23 to be free from false accusations of misconduct, so the mere falsification of a report does not give 24 rise to a claim under section 1983.”) (citations omitted). Moreover, “plaintiff cannot state a 25 cognizable Eighth Amendment violation based on an allegation that defendant[ ] issued a false 26 rule violation against plaintiff.” Jones v. Prater, No. 2:10-cv-01381 JAM KJN P, 2012 WL 27 1979225, at *2 (E.D. Cal. Jun. 1, 2012); see also Youngs v. Barretto, No. 2:16-cv-0276 JAM AC 28 P, 2018 WL 2198707, at *3 (E.D. Cal. May 14, 2019) (noting that issuance of false rules violation 1 report does not rise to the level of cruel and unusual punishment) (citations omitted). 2 Accordingly, Plaintiff’s complaint does not state a cognizable claim against any 3 Defendant for an allegedly falsified statement. 4 6. Conspiracy 5 To state a claim for conspiracy under section 1983, Plaintiff must show the existence of an 6 agreement or a meeting of the minds to violate his constitutional rights, and an actual deprivation 7 of those constitutional rights. Avalos v. Baca, 596 F.3d 583, 592 (9th Cir.2010); Franklin v. Fox, 8 312 F.3d 423, 441 (9th Cir. 2001). To have standing to bring this type of claim, Plaintiff must 9 also allege he suffered an actual injury. Vandelft v. Moses, 31 F.3d 794, 798 (9th Cir. 1994). To 10 establish a conspiracy, Plaintiff allege specific facts showing “an agreement or meeting of the 11 minds to violate constitutional rights. To be liable, each participant in the conspiracy need not 12 know the exact details of the plan, but each participant must at least share the common objective 13 of the conspiracy.” Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2002) (internal citations and 14 quotation marks omitted). The mere conclusory statement that defendants “conspired” together is 15 not sufficient to state a cognizable claim. Woodrum v. Woodward Cty., 866 F.2d 1121, 1126 (9th 16 Cir. 1989). 17 Plaintiff makes general, omnibus allegations that the Defendants engaged in some 18 conspiracy. Plaintiff must plead the basic elements of a civil conspiracy: an agreement and 19 concerted action amongst the defendants in the furtherance of that agreement, and that each 20 defendant conspired to violate Plaintiff’s constitutional rights. See also Kendall v. Visa U.S.A., 21 Inc., 518 F.3d 1042, 1047 (9th Cir. 2008) (noting that a bare allegation of a conspiracy is almost 22 impossible to defend against where numerous individuals are concerned). 23 7. State Law Claims 24 To the extent Plaintiff also alleges violations of California law, Plaintiff is informed that 25 the California Government Claims Act requires that a tort claim against a public entity or its 26 employees be presented to the California Victim Compensation and Government Claims Board 27 no more than six months after the cause of action accrues. Cal. Gov’t Code §§ 905.2, 910, 911.2, 28 945.4, 950-950.2. Presentation of a written claim, and action on or rejection of the claim are 1 conditions precedent to suit. State v. Super. Ct. of Kings Cnty. (Bodde), 32 Cal.4th 1234, 1239 2 (Cal. 2004); Shirk v. Vista Unified Sch. Dist., 42 Cal.4th 201, 209 (2007). To state a tort claim 3 against a public employee, a plaintiff must allege compliance with the California Tort Claims 4 Act. Cal. Gov’t Code § 950.6; Bodde, 32 Cal. 4th at 1244. “[F]ailure to allege facts demonstrating 5 or excusing compliance with the requirement subjects a complaint to general demurrer for failure 6 to state a cause of action.” Bodde, 32 Cal.4th at 1239. 7 Plaintiff does not allege that he has complied with the Government Claims Act. 8 III. Failure to Prosecute and Failure to Obey a Court Order 9 A. Legal Standard 10 Local Rule 110 provides that “[f]ailure . . . of a party to comply with these Rules or with 11 any order of the Court may be grounds for imposition by the Court of any and all sanctions . . . 12 within the inherent power of the Court.” District courts have the inherent power to control their 13 dockets and “[i]n the exercise of that power they may impose sanctions including, where 14 appropriate, . . . dismissal.” Thompson v. Hous. Auth., 782 F.2d 829, 831 (9th Cir. 1986). A 15 court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action, 16 failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 17 F.3d 52, 53–54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 18 963 F.2d 1258, 1260–61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring 19 amendment of complaint); Malone v. U.S. Postal Serv., 833 F.2d 128, 130–33 (9th Cir. 1987) 20 (dismissal for failure to comply with court order). 21 In determining whether to dismiss an action, the Court must consider several factors: 22 (1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its 23 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 24 cases on their merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779 25 F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). 26 B. Discussion 27 Here, Plaintiff’s first amended complaint is overdue for the second time, and he has failed 28 to comply with the Court’s order. The Court cannot effectively manage its docket if Plaintiff 1 ceases litigating his case. Thus, the Court finds that both the first and second factors weigh in 2 favor of dismissal. 3 The third factor, risk of prejudice to defendant, also weighs in favor of dismissal, since a 4 presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action. 5 Anderson v. Air W., 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor usually weighs against 6 dismissal because public policy favors disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 7 639, 643 (9th Cir. 2002). However, “this factor lends little support to a party whose 8 responsibility it is to move a case toward disposition on the merits but whose conduct impedes 9 progress in that direction,” which is the case here. In re Phenylpropanolamine (PPA) Products 10 Liability Litigation, 460 F.3d 1217, 1228 (9th Cir. 2006) (citation omitted). 11 Finally, the Court’s warning to a party that failure to obey the court’s order will result in 12 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262; 13 Malone, 833 at 132–33; Henderson, 779 F.2d at 1424. The Court’s August 22, 2024 screening 14 order and order granting Plaintiff’s motion for extension of time to file a first amended complaint 15 both expressly warned Plaintiff that his failure to file an amended complaint would result in a 16 recommendation of dismissal of this action, with prejudice, for failure to obey a court order and 17 for failure to state a claim. (ECF No. 9, p. 8; ECF No. 14, p. 3.) Thus, Plaintiff had adequate 18 warning that dismissal could result from his noncompliance. 19 Additionally, at this stage in the proceedings there is little available to the Court that 20 would constitute a satisfactory lesser sanction while protecting the Court from further 21 unnecessary expenditure of its scarce resources. As Plaintiff is proceeding in forma pauperis in 22 this action, it appears that monetary sanctions will be of little use and the preclusion of evidence 23 or witnesses is likely to have no effect given that Plaintiff has ceased litigating his case. 24 IV. Conclusion and Recommendation 25 Accordingly, the Court finds that dismissal is the appropriate sanction and HEREBY 26 RECOMMENDS that this action be dismissed, with prejudice, for failure to state a claim, for 27 failure to obey a court order, and for Plaintiff’s failure to prosecute this action. 28 /// 1 These Findings and Recommendation will be submitted to the United States District Judge 2 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 3 (14) days after being served with these Findings and Recommendation, Plaintiff may file written 4 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 5 Findings and Recommendation.” Objections, if any, shall not exceed fifteen (15) pages or 6 include exhibits. Exhibits may be referenced by document and page number if already in 7 the record before the Court. Any pages filed in excess of the 15-page limit may not be 8 considered. The parties are advised that failure to file objections within the specified time may 9 result in the waiver of the “right to challenge the magistrate’s factual findings” on 10 appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838–39 (9th Cir. 2014) (citing Baxter v. Sullivan, 11 923 F.2d 1391, 1394 (9th Cir. 1991)). 12 IT IS SO ORDERED. 13

14 Dated: January 6, 2025 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 15

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