(PC) Avina v. Crondagar et al, No. 1:2009cv00343 - Document 9 (E.D. Cal. 2009)
Court Description: ORDER DENYING 8 Motion Filed on July 23, 2009; ORDER REQUIRING Plaintiff to File Response Within 30 Days signed by Magistrate Judge Dennis L. Beck on 8/20/2009. Response due by 9/23/2009. (Sant Agata, S)
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(PC) Avina v. Crondagar et al Doc. 9 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 JOSE AVINA, CASE NO. 1:09-cv-00343-LJO-DLB PC 9 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION 10 v. (Doc. 8) 11 J. CRONJAGAR, et al., ORDER REQUIRING PLAINTIFF TO FILE RESPONSE WITHIN 30 DAYS 12 Defendants. 13 / 14 15 Plaintiff Jose Avina (“Plaintiff”) is a state prisoner proceeding pro se and in forma 16 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed his complaint on 17 February 25, 2009. On June 25, 2009, the Court issued an order requiring Plaintiff to either file 18 an amended complaint or proceed only on the claims found cognizable. On July 23, 2009, 19 Plaintiff filed a motion entitled “Objections to Magistrate’s Order at Docket No. 7; and Request 20 for Stay of Order; and Request for Order requiring Prison Officials to maintain contact 21 information of all named defendants.” (Doc. 8.) The Court construes this motion as a motion for 22 reconsideration. 23 I. Legal Standard 24 The court has discretion to reconsider and vacate a prior order. Barber v. Hawaii, 42 F.3d 25 1185, 1198 (9th Cir. 1994); United States v. Nutri-cology, Inc., 982 F.2d 394, 396 (9th Cir. 26 1992). Motions for reconsideration are disfavored, however, and are not the place for parties to 27 make new arguments not raised in their original briefs. Northwest Acceptance Corp. v. 28 Lynnwood Equip., Inc., 841 F.2d 918, 925-6 (9th Cir. 1988). Nor is reconsideration to be used to 1 Dockets.Justia.com 1 ask the court to rethink what it has already thought. United States v. Rezzonico, 32 F.Supp.2d 2 1112, 1116 (D.Ariz.1998). “A party seeking reconsideration must show more than a 3 disagreement with the Court’s decision, and recapitulation of the cases and arguments considered 4 by the court before rendering its original decision fails to carry the moving party’s burden.” U.S. 5 v. Westlands Water Dist., 134 F.Supp.2d 1111, 1131 (E.D. Cal. 2001). 6 Motions to reconsider are committed to the discretion of the trial court. Combs v. Nick 7 Garin Trucking, 825 F.2d 437, 441 (D.C. Cir. 1987); Rodgers v. Watt, 722 F.2d 456, 460 (9th 8 Cir. 1983), en banc. To succeed, a party must set forth facts or law of a strongly convincing 9 nature to induce the court to reverse its prior decision. See Kern-Tulare Water Dist. v. City of 10 Bakersfield, 634 F.Supp. 656, 665 (E.D. Cal. 1986), affirmed in part and reversed in part on 11 other grounds, 828 F.2d 514 (9th Cir. 1987). When filing a motion for reconsideration, Local 12 Rule 78-230(k) requires a party to show the “new or different facts or circumstances claimed to 13 exist which did not exist or were not shown upon such prior motion, or what other grounds exist 14 for the motion.” 15 Plaintiff objects to the dismissal of most of his due process claims and his retaliation 16 claims. The Court shall consider each argument below. 17 II. Plaintiff’s Arguments 18 A. 19 Plaintiff contends that the Court applied a more stringent pleading standard to Plaintiff Liberal Pleading Standard 20 than what is actually required under Federal Rule of Civil Procedure 8(a). (Doc. 8, Pl.’s Mot. 1.) 21 It is correct that a document filed pro se is to be liberally construed and held to less stringent 22 standards than formal pleadings drafted by lawyers. Erickson v. Pardus, 551 U.S. 89, 94 (2007) 23 (per curiam) (internal citations and quotations omitted). However, “a liberal interpretation of a 24 civil rights complaint may not supply essential elements of the claim that were not initially pled.” 25 Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of 26 Regents, 673 F.2d 266, 268 (9th Cir. 1982)). The Court cannot supply or assume necessary 27 elements in order for Plaintiff’s claims to be cognizable. As will be discussed below, the Court 28 dismissed certain claims by Plaintiff for lack of essential elements pled, and not for imposition of 2 1 a more stringent standard. 2 B. 3 Plaintiff contends that it is an “abuse of discretion” to dismiss claims and defendants Dismissal Without Development of Record 4 without discovery and development of record. (Pl.’s Mot. 2.) This objection is without merit. 5 The Court is required to screen complaints brought by prisoners seeking relief against a 6 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 7 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 8 legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or 9 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 10 § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion thereof, that may have been 11 paid, the court shall dismiss the case at any time if the court determines that . . . the action or 12 appeal . . . fails to state a claim upon which relief may be granted.” 28 U.S.C. § 13 1915(e)(2)(B)(ii). Development of the record is not the appropriate time to state a claim. If 14 Plaintiff states a cognizable claim against defendants Does 3-6, then the Court will allow some 15 limited development of the record to discover these individuals’ identities. Until Plaintiff states a 16 claim against these individuals, development of the record is premature. 17 C. 18 Plaintiff contends that the Court erred in finding that Plaintiff failed to allege lack of prior Due Process 19 notice or opportunity to be heard. (Pl.’s Mot. 2.) Though Plaintiff cites to several paragraphs in 20 his complaint, Plaintiff’s complaint does not state with sufficient specificity that he did not 21 receive an opportunity to be heard at all. Plaintiff does refer to opportunities in which he was not 22 provided with an interview as required by state regulation, or failed to receive the opportunity to 23 rebut evidence during one proceeding. (Doc. 1, Pl.’s Compl. ¶¶ 40, 53.) However, that does not 24 necessarily indicate that Plaintiff lacked all meaningful opportunity to be heard. For example, 25 Plaintiff submitted rebuttals regarding his gang validation. (Pl.’s Compl. ¶¶ 27, 39.) Prison 26 officials’ alleged failure to follow prison regulations is not sufficient by itself to state a 27 cognizable due process claim. See Walker v. Sumner, 14 F.3d, 1415, 1419-20 (9th Cir. 1994) 28 (“[I]f state procedures rise above the floor set by the Due Process Clause, a state could fail to 3 1 follow its own procedures yet still provide sufficient process to survive constitutional scrutiny.”) 2 The Court provides Plaintiff with an opportunity to file an amended complaint in order to cure 3 these deficiencies, and if possible, explain why Plaintiff was denied timely notice and an 4 opportunity to be heard as required under the Due Process Clause. 5 6 1. Defendant Lunes Plaintiff contends that Lunes was present during Cronjagar’s alleged misconduct and 7 failed to stop him. (Pl.’s Mot. 3.) Plaintiff contends that when he told Cronjagar and Lunes of 8 the deficiency of the alleged evidence against Plaintiff, Lunes responded by saying, “We don’t 9 give a shit about your legal bullshit!” (Pl.’s Mot. 3.) Assuming this statement is true, verbal 10 abuse here does not establish a constitutional violation by Lunes. The cognizable due process 11 claim against Cronjagar is based on Plaintiff’s allegation that Cronjagar used false evidence to 12 validate Plaintiff as a gang member. (Pl.’s Compl. ¶¶ 29-38.) The exhibits submitted with 13 Plaintiff’s complaint do not show that Lunes submitted the allegedly false evidence, or 14 participated in the acquisition of the evidence. Thus, without more, Lunes’s mere alleged 15 presence does not state a cognizable due process claim. The Court reminds Plaintiff that he will 16 have the opportunity to file an amended complaint. 17 18 2. Defendants, Ruff, Fischer, and Roman Plaintiff contends that Ruff, Fischer, and Roman violated his due process rights by 19 validating him as a gang member without the required rebuttal. (Pl.’s Mot. 4-5.) Based on 20 Plaintiff’s complaint, Ruff, Fischer, and Roman relied upon evidence submitted by Cronjagar to 21 validate Plaintiff as a gang member. Plaintiff contends that the opportunity to rebut the evidence 22 was not provided in this instance. However, Plaintiff in his complaint had alleged that he was 23 able to submit two rebuttals to Cronjagar’s gang validation evidence. (Pl.’s Compl. ¶¶ 27, 39.) 24 As stated previously, not every alleged failure to follow a prison regulation constitutes a violation 25 of due process. Walker, 14 F.3d at1419-20. It is not clear on the face of Plaintiff’s complaint 26 that he lacked a meaningful opportunity to be heard on this issue. Plaintiff will be provided an 27 opportunity to file an amended complaint. 28 // 4 1 2 3. Defendants Lopez, Moore, Garcia, and Doe 2 Plaintiff contends that Lopez, Moore, Garcia, and Doe 2, during Plaintiff’s annual 3 classification hearing, failed to follow proper prison regulation by not providing Plaintiff an 4 opportunity to be heard regarding a new validation package. (Pl.’s Mot. 5.) As stated previously, 5 not every alleged failure to follow prison regulation is a violation of due process. Walker, 14 6 F.3d at1419-20. Here, Plaintiff did not sufficiently allege that he lacked a meaningful 7 opportunity to be heard on this issue. Again, Plaintiff did indicate in his complaint that he was 8 able to submit two rebuttals of the validation evidence. (Pl.’s Compl. ¶¶ 27, 39.) Thus, it is not 9 clear in Plaintiff’s complaint that he lacked a meaningful opportunity to be heard on this issue. 10 Plaintiff will be provided an opportunity to file an amended complaint. 11 D. 12 Plaintiff contends that defendants took these actions against him in retaliation for his Retaliation 13 filing of grievances and complaints. (Pl.’s Mot. 6-7.) Even assuming the actions taken against 14 Plaintiff were all adverse, Plaintiff did not sufficiently plead a cognizable retaliation claim in his 15 complaint. It is not the job of this Court to assume essential elements of a claim, when Plaintiff 16 has not sufficiently plead these elements in his complaint. Plaintiff is provided an opportunity to 17 file an amended complaint to cure these deficiencies. 18 E. 19 Plaintiff contends that he is not alleging liability based on a supervisory role, but rather Other Claims 20 based on defendants’ failure to properly train and supervise subordinates and policy of retaliation 21 against inmates filing grievances. (Pl.’s Mot. 7.) If Plaintiff is not contending supervisory 22 liability, then Plaintiff appears to be contending liability based on the supervisory defendants’ 23 actions in their official capacity. Official capacity suits against state officials are merely an 24 alternative way of pleading an action against the entity of which the defendant is an officer. See 25 Hafer v. Melo, 502 U.S. 21, 25 (1991). However, individuals in their official capacity who are 26 employees of the California Department of Corrections and Rehabilitation (“CDCR”) are entitled 27 to Eleventh Amendment immunity from suit. The Eleventh Amendment prohibits federal courts 28 from hearing suits brought against an unconsenting state. Brooks v. Sulphur Springs Valley 5 1 Elec. Co., 951 F.2d 1050, 1053 (9th Cir. 1991) (citation omitted); see also Seminole Tribe of Fla. 2 v. Florida, 116 S.Ct. 1114, 1122 (1996); Puerto Rico Aqueduct Sewer Auth. v. Metcalf & Eddy, 3 Inc., 506 U.S. 139, 144 (1993); Austin v. State Indus. Ins. Sys., 939 F.2d 676, 677 (9th Cir. 4 1991). The Eleventh Amendment bars suits against state agencies as well as those where the 5 state itself is named as a defendant. See Natural Resources Defense Council v. California Dep’t 6 of Tranp., 96 F.3d 420, 421 (9th Cir. 1996); Brooks, 951 F.2d at 1053; Taylor v. List, 880 F.2d 7 1040, 1045 (9th Cir. 1989) (concluding that Nevada Department of Prisons was a state agency 8 entitled to Eleventh Amendment immunity); Mitchell v. Los Angeles Community College Dist., 9 861 F.2d 198, 201 (9th Cir. 1989). Because the CDCR is a state agency, it is entitled to Eleventh 10 Amendment immunity from suit, as are suits against state actor defendants in their official 11 capacity. 12 F. 13 Plaintiff also requests that named defendants be required to provide their contact Leaving Information With Prison Officials 14 information with prison officials in order for Plaintiff to properly serve them. (Pl.’s Mot. 8.) 15 Plaintiff’s request is premature as this action has not yet proceeded past the screening stage and 16 thus no defendants have appeared that would require service. The request is thus denied. 17 III. Conclusion 18 Based on the foregoing, the Court HEREBY ORDERS that 19 1) Plaintiff’s motion, filed on July 23, 2009, is DENIED; 20 2) Within thirty (30) days from the date of service of this order, Plaintiff must 21 either: 22 a. 23 24 File a first amended complaint curing the deficiencies identified by the Court in its June 25, 2009 order, or b. Notify the Court in writing that Plaintiff does not wish to file an amended 25 complaint and wishes to proceed only on the claims identified by the Court 26 as viable/cognizable in its June 25, 2009 order; and 27 // 28 // 6 1 // 2 3 3) 4 5 6 If Plaintiff fails to comply with this order, the Court will recommend immediate dismissal of this action for failure to obey a court order. IT IS SO ORDERED. Dated: 3b142a August 20, 2009 /s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7
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