-DLB (PC) Garrison Johnson v. Cate et al, No. 1:2010cv01918 - Document 23 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS Recommending Defendants' Motion to Dismiss be Granted 18 , signed by Magistrate Judge Dennis L. Beck on 11/17/11. Referred to Judge O'Neill. (Verduzco, M)
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-DLB (PC) Garrison Johnson v. Cate et al Doc. 23 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 GARRISON S. JOHNSON, 10 Plaintiff, 11 12 CASE NO. 1:10-CV-1918-LJO-DLB PC FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANTS’ MOTION TO DISMISS BE GRANTED v. MATTHEW CATE, et al., 13 (DOC. 18) Defendants. OBJECTIONS, IF ANY, DUE WITHIN TWENTY-ONE DAYS 14 / 15 16 17 Findings And Recommendations I. 18 Background Plaintiff Garrison S. Johnson (“Plaintiff”) is a prisoner in the custody of the California 19 Department of Corrections and Rehabilitation (“CDCR”), proceeding pro se. This action is 20 proceeding on Plaintiff’s complaint, filed October 14, 2010, against Defendants Matthew Cate 21 and Kelly Harrington for racial discrimination in violation of the Equal Protection Clause of the 22 Fourteenth Amendment. Pending before the Court is Defendants’ motion to dismiss, filed July 23 18, 2011. Defs.’ Mot. Dismiss, Doc. 18. Plaintiff filed his opposition on August 5, 2011. Pl.’s 24 Opp’n, Doc. 19. Defendants filed their reply on August 12, 2011. Defs.’ Reply, Doc. 20. The 25 matter is submitted pursuant to Local Rule 230(l). 26 II. 27 28 Motion To Dismiss Defendants move to dismiss on two grounds: 1) pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure and 2) statute of limitations. 1 Dockets.Justia.com 1 A. 2 “The focus of any Rule 12(b)(6) dismissal . . . is the complaint.” Schneider v. California Failure To State A Claim 3 Dept. of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998). In considering a motion to dismiss for 4 failure to state a claim, the court must accept as true the allegations of the complaint in question, 5 Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), construe the pleading in 6 the light most favorable to the party opposing the motion, and resolve all doubts in the pleader's 7 favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). The federal system is one of notice 8 pleading. Galbraith v. County of Santa Clara, 307 F.3d 1119, 1126 (9th Cir. 2002). 9 Pursuant to Rule 8(a), a complaint must contain “a short and plain statement of the claim 10 showing that the pleader is entitled to relief . . .” Fed. R. Civ. P. 8(a). Detailed factual 11 allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, 12 supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 13 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set 14 forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’” 15 Id. (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal 16 conclusions are not. Id. 17 1. 18 Plaintiff’s complaint alleged the following. Plaintiff has been in CDCR custody since Summary Of Complaint 19 1987, and has been housed at seven prisons. Pl.’s Compl. ¶ 1. Plaintiff was allowed only to vote 20 for African American prisoners for the inmate advisory council (“IAC”) at each prison. Id. 21 Defendant Cate, the secretary of CDCR, and Defendant Harrington, warden of Kern Valley State 22 Prison, where the events alleged occurred, had instituted a policy, practice, or pattern of not 23 allowing Plaintiff to participate in the voting process of Mexican and Caucasian prisoners to the 24 IAC housing unity representatives. Id. ¶ 2. African American prisoners are not allowed to vote 25 for Mexican or Caucasian IAC housing unit representatives. Id. 26 On November 23, 2009, Plaintiff, an African American, participated in the election of an 27 African American prisoner for IAC representative of C5 housing unit in KVSP. Id. ¶ 3. Only 28 African Americans were allowed to vote for black inmates who were running for IAC building 2 1 2 representative. Id. Plaintiff alleges that Defendants were aware that in each of their prison institutions 3 inmates established self-imposed politics discouraging inmates from voting outside of their race 4 for inmates to be IAC representatives and their failure to correct these problems subjected 5 Plaintiff to racial discrimination for the past 24 years. Id. ¶ 7. 6 2. 7 Defendants contend that Plaintiff has failed to state a claim. Defendants contend that Analysis 8 Plaintiff has not alleged specific facts linking Defendants Cate and Harrington to a policy that 9 caused the alleged violation. Defs. Mot. Dismiss 4:26-5:17. Defendants contend that Plaintiff’s 10 allegations are at most conclusory. Id. Additionally, Defendants contend that Defendant 11 Harrington could not have caused violations at each of Plaintiff’s previous prisons over the past 12 24 years, as Defendant Harrington is the warden of KVSP. Id. Defendants contend that 13 Plaintiff’s allegations are unreasonable inferences and vague. 14 Plaintiff contends that he did not allege a violation against Defendants Cate and 15 Harrington for the alleged violations at previous prisons, but only for KVSP, when he first 16 attempted to vote outside of his race. Pl.’s Opp’n 4:1-14. Plaintiff attaches a declaration to his 17 opposition. Ex. A, Pl.’s Decl. ¶ 3. However, a motion to dismiss for failure to state a claim can 18 only examine the operative pleading, not declarations in oppositions. Cooper v. Pickett, 137 19 F.3d 616, 622 (9th Cir. 1998) (district court may not consider materials outside the complaint and 20 pleadings when resolving motion to dismiss for failure to state a claim). 21 Defendants’ argument is correct. Plaintiff’s only allegation against Defendants Cate and 22 Harrington is that they implemented a policy of not allowing Plaintiff to vote outside of his race 23 for IAC representatives. Plaintiff’s allegations are conclusory, as he has not sufficiently linked 24 Defendants to such policy. 25 The term “supervisory liability,” loosely and commonly used by both courts and litigants 26 alike, is a misnomer. Iqbal, 129 S. Ct. at 1949. “Government officials may not be held liable for 27 the unconstitutional conduct of their subordinates under a theory of respondeat superior.” Id. at 28 1948. Rather, each government official, regardless of his or her title, is only liable for his or her 3 1 own misconduct. 2 When the named defendant holds a supervisory position, the causal link between the 3 defendant and the claimed constitutional violation must be specifically alleged. See Fayle v. 4 Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 5 1978). To state a claim for relief under § 1983 for supervisory liability, plaintiff must allege 6 some facts indicating that the defendant either: personally participated in the alleged deprivation 7 of constitutional rights; knew of the violations and failed to act to prevent them; or promulgated 8 or “implemented a policy so deficient that the policy ‘itself is a repudiation of constitutional 9 rights’ and is ‘the moving force of the constitutional violation.’” Hansen v. Black, 885 F.2d 642, 10 646 (9th Cir. 1989) (internal citations omitted); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 11 1989). Plaintiff alleges at most legal conclusions that Defendants participated in the alleged 12 deprivation of Plaintiff’s constitutional rights through the promulgation of this alleged policy, 13 which is insufficient to state a claim. Iqbal, 129 S. Ct. at 1949. 14 B. 15 Defendants contend that Plaintiff’s claims violate the statute of limitations because it 16 involves a violation that occurred over 24 years ago. Defs.’ Mot. Dismiss 6:17-8:2. Plaintiff 17 contends that he did not become aware of the alleged violation until November 23, 2009. Pl.’s 18 Opp’n 5-6. 19 Statute Of Limitations Because § 1983 contains no specific statute of limitations, federal courts should borrow 20 state statutes of limitations for personal injury actions in § 1983 suits. See Wallace v. Kato, 549 21 U.S. 384, 387 (2007); Lukovsky v. City of San Francisco, 535 F.3d 1044, 1048 (9th Cir. 2008). 22 Federal courts should also borrow all applicable provisions for tolling the limitations period 23 found in state law. Wallace, 549 U.S. at 387. Prior to January 1, 2003, the limitations period for 24 an action for a personal injury caused by the wrongful or negligent act of another was one year. 25 Cal. Civ. Proc. Code § 340.3 (Deering 2002). Beginning January 1, 1995, prisoners were limited 26 to two years tolling during incarceration. Cal. Civ. Proc. Code § 352.1(a) (West 2006). The 27 two-year tolling statute, effective January 1, 1995, “applies retroactively as long as a plaintiff had 28 a reasonable time after January 1, 1995 to bring suit.” Fink v. Shedler, 192 F.3d 911, 915 (9th 4 1 Cir. 1999). Thus, claims that “accrued before January 1, 1995, are tolled for two years from 2 accrual, or until January 1, 1995, whichever occurs later, as long as such an application does not 3 result in manifest injustice.” Id. at 916. Federal law determines when a cause of action accrues 4 and the statute of limitations begins to run for a § 1983 claim. Lukovsky, 535 F.3d at 1048. A 5 federal claim accrues when the plaintiff knows or has reason to know of the injury which is the 6 basis of the action. Id. 7 Plaintiff contends that his complaint does not violate the statute of limitations, as his suit 8 concerns an alleged incident on November 23, 2009. However, as currently alleged in the 9 complaint, Plaintiff’s claim is in violation of the statute of limitations. Plaintiff’s pleadings 10 concern a discriminatory voting policy for the past 24 years, thus implying Plaintiff’s awareness 11 of the violation over 24 years ago. See Compl. ¶ 7. Plaintiff’s complaint, filed October 14, 2010, 12 would clearly be untimely. Plaintiff’s declaration attached to his opposition indicates that he did 13 not become aware of the violation until November 23, 2009, when he attempted to vote outside 14 of his race. However, pleadings cannot be amended via a declaration attached to an opposition. 15 See L. R. 220 (amended pleading is to be complete in itself). Thus, Plaintiff’s complaint, as 16 currently plead, is in violation of the statute of the limitations. 17 C. 18 The Court finds that Plaintiff may be able to amend his pleadings to state a cognizable Leave To Amend 19 claim. Thus, leave to amend will be granted. See Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 20 2000) (en banc). Once filed and served, the Court will screen Plaintiff’s first amended complaint 21 pursuant to 28 U.S.C. § 1915A before ordering Defendants to respond. The Court provides the 22 following instructions regarding Equal Protection claims and amended pleadings. 23 24 1. Equal Protection The Equal Protection Clause . . . is essentially a direction that all persons similarly 25 situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 26 439 (1985) (citing Plyler v. Doe, 457 U.S. 202, 216 (1982)). An equal protection claim may be 27 established by showing that the defendant intentionally discriminated against the plaintiff based 28 on the plaintiff’s membership in a protected class, Serrano v. Francis, 345 F.3d 1071, 1082 (9th 5 1 Cir. 2003), or that similarly situated individuals were intentionally treated differently without a 2 rational relationship to a legitimate state purpose, Village of Willowbrook v. Olech, 528 U.S. 562, 3 564 (2000); Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008); North Pacifica 4 LLC v. City of Pacifica, 526 F.3d 478, 486 (9th Cir. 2008). A plaintiff must allege sufficient 5 facts either showing intentional unlawful discrimination or “that are at least susceptible of an 6 inference of discriminatory intent.” Byrd v. Maricopa County Sheriff’s Dep’t, 565 F.3d 1205, 7 1212 (9th Cir. 2009) (internal quotations and citation omitted); see Iqbal, 129 S. Ct. at 1949-50. 8 2. 9 Amended Pleadings Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but must state what 10 each named defendant did that led to the deprivation of Plaintiff’s constitutional or other federal 11 rights. Iqbal, 129 S. Ct. at 1949. Although accepted as true, the “[f]actual allegations must be 12 [sufficient] to raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555 13 (citations omitted). Plaintiff is advised that an amended complaint supersedes the original 14 complaint, Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 15 F.2d 565, 567 (9th Cir. 1987), and must be “complete in itself without reference to the prior or 16 superseded pleading,” L. R. 220. Plaintiff is warned that “[a]ll causes of action alleged in an 17 original complaint which are not alleged in an amended complaint are waived.” King, 814 F.2d 18 at 567 (citing to London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981)); accord 19 Forsyth, 114 F.3d at 1474. 20 III. Conclusion And Recommendation 21 Based on the foregoing, it is HEREBY RECOMMENDED that: 22 1. Defendants’ motion to dismiss, filed July 18, 2011, should be granted; 23 2. Plaintiff’s complaint, filed October 14, 2010, be dismissed for failure to state a 24 claim upon which relief may be granted; and 25 3. Plaintiff be granted leave to file a first amended complaint within thirty days from 26 the date of service of the District Judge’s order resolving these Findings and 27 Recommendations. 28 /// 6 1 These Findings and Recommendations will be submitted to the United States District 2 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty- 3 one (21) days after being served with these Findings and Recommendations, the parties may file 4 written objections with the Court. The document should be captioned “Objections to Magistrate 5 Judge’s Findings and Recommendations.” The parties are advised that failure to file objections 6 within the specified time may waive the right to appeal the District Court’s order. Martinez v. 7 Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991). 8 9 IT IS SO ORDERED. Dated: 3b142a November 17, 2011 /s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7