(PC) Polk v. Lattimore et al, No. 1:2012cv01156 - Document 113 (E.D. Cal. 2018)
Court Description: ORDER adopting in part 102 FINDINGS AND RECOMMENDATIONS. ORDER granting leave to file Fifth Amended Complaint on a single claim within 30-Days. Signed by District Judge Dale A. Drozd on 11/5/2018. (Lundstrom, T)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SUSAN MAE POLK, 12 13 14 15 16 17 No. 1:12-cv-01156-DAD-BAM Plaintiff, v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS IN PART MARY LATTIMORE, et al., Defendants. ORDER GRANTING LEAVE TO FILE FIFTH AMENDED COMPLAINT ON A SINGLE CLAIM WITHIN 30 DAYS (Doc. Nos. 66, 102, 109) 18 19 Plaintiff Susan Mae Polk is a state prisoner proceeding pro se and in forma pauperis in 20 this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States 21 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 22 On February 21, 2017, the undersigned dismissed this action due to plaintiff’s failure to 23 comply with Federal Rules of Civil Procedure 8(a) and 18(a). (Doc. No. 87.) Judgment was 24 entered the same day. (Doc. No. 88.) On April 19, 2017, plaintiff appealed the final order and 25 judgment. (Doc. No. 92.) On February 23, 2018, the Ninth Circuit Court of Appeals issued an 26 order affirming in part and vacating in part the judgment, and remanding the action. (Doc. No. 27 99.) The Ninth Circuit found that all but one of plaintiff’s claims were properly dismissed. The 28 Ninth Circuit held that it was not clear whether plaintiff’s allegations in her fourth amended 1 1 complaint against correctional officer Baron concerning an alleged “snitch jacket” being placed 2 upon plaintiff had been considered by this court. Accordingly, the matter was remanded for 3 further proceedings only as to that claim. (Id. at 2.) The Ninth Circuit’s mandate was issued on 4 March 19, 2018. (Doc. No. 101.) 5 On May 11, 2018, the assigned magistrate judge filed findings and recommendations, 6 recommending that this action be dismissed due to plaintiff’s failure to state a cognizable claim, 7 failure to obey a court order, and failure to comply with Rules 8 and 18 of the Federal Rules of 8 Civil Procedure in filing her fourth amended complaint. (Doc. No. 76.) The findings and 9 recommendations were served on plaintiff and contained notice that any objections thereto were 10 to be filed within fourteen days. (Id. at 8-9.) On May 29, 2018, plaintiff filed a motion for an 11 extension of time, seeking approximately sixty additional days to file objections to the findings 12 and recommendations. (Doc. No. 103.) On June 1, 2018, the court granted plaintiff’s motion in 13 part and ordered that her objections be filed within thirty days of the date of service of that order. 14 (Doc. No. 104.) On July 5, 2018, plaintiff filed a second motion for an additional extension of 15 time to file objections to the findings and recommendations, until July 19, 2018. (Doc. No. 106.) 16 On July 9, 2018, the court granted that motion. (Doc. No. 107.) On July 18, 2018, plaintiff 17 timely provided her objections to prison officials for mailing. (Doc. No. 109.) 18 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a 19 de novo review of this case. Having carefully reviewed the entire file, including plaintiff’s 20 objections, the court adopts the findings and recommendations in part. 21 Plaintiff’s objections are lengthy and scattershot in nature, made up primarily of 22 contending that nearly each paragraph of the pending findings and recommendations are “untrue.” 23 (Doc. No. 109.) Nonetheless, plaintiff has objected to dismissal of the remaining claim of her 24 fourth amended complaint, in which plaintiff alleges that on July 23, 2008, she was labeled a 25 “snitch” by correctional officer Baron, resulting in plaintiff’s cellmate hitting plaintiff on the back 26 of her head with a blunt object and cutting her scalp. Allegations by a prisoner that they have 27 been labeled as a “snitch” by prison officials thereby exposing the prisoner to risk of harm at the 28 hands of other prisoners can state a cognizable claim under 42 U.S.C. § 1983. See Valandingham 2 1 v. Bojorquez, 866 F.2d 1135, 1138 (9th Cir. 1989). However, as pointed out in the pending 2 findings and recommendations, plaintiff’s bare allegation that she was labeled a “snitch” by 3 correctional officer Baron, was absent from plaintiff’s prior complaints filed in this action. 4 Indeed, defendant Baron was not mentioned at all in plaintiff’s original complaint filed July 16, 5 20121 or in her first amended complaint filed on September 20, 2012. Although in her third 6 amended complaint filed December 2, 2013, plaintiff mentioned defendant Baron for the first 7 time, she did not allege therein that Baron had placed a snitch jacket on her but instead alleged 8 that she told Baron that her cellmate Miranda hit her on July 23, 2008 because plaintiff had been 9 “telling” on Miranda regarding Miranda’s black-market drug trade and due to race, education, and 10 class-based animus. Not until her lengthy fourth amended complaint, filed on April 15, 2015, did 11 plaintiff finally allege that on July 23, 2008, defendant Baron had put a snitch jacket on her 12 causing her to be hit over the head by cellmate Miranda. This most recent bare and conclusory 13 allegation appears to be contrary to those allegations leveled by plaintiff in her earlier complaints. 14 At the very least, this new allegation against defendant Barron is the latest version in plaintiff’s 15 ever-evolving contention regarding events that are alleged to have occurred over ten years ago. Nonetheless, the undersigned is cognizant of the Ninth Circuit’s holding in this case that 16 17 as to plaintiff’s allegation that she was labeled a “snitch” by defendant Barron, leave to amend 18 should be granted if appropriate. The Ninth Circuit’s jurisprudence is somewhat unclear as to 19 whether leave to amend should be granted in the face of inconsistent allegations such as those 20 alleged here. Compare Airs Aromatics, LLC v. Opinion Victoria’s Secret Stores Brand Mgmt., 21 Inc., 744 F.3d 595, 600 (9th Cir. 2014) (“A party cannot amend pleadings to directly contradict an 22 earlier assertion made in the same proceeding.”), with PAE Gov’t Servs., Inc. v. MPRI, Inc., 514 23 F.3d 856, 860 (9th Cir. 2007) (“The short of it is that there is nothing in the Federal Rules of Civil 24 Procedure to prevent a party from filing successive pleadings that make inconsistent or even 25 contradictory allegations.”). District courts attempting to reconcile Airs Aromatics and PAE 26 27 28 1 Plaintiff filed her original complaint almost four years after this incident she now alleges took place. Thus, she would have been aware of it and of defendant Baron’s alleged actions when she filed her original complaint in which she did not even mention Baron. 3 1 Government Services have, out of an abundance of caution, granted leave to amend even when 2 those allegations are inconsistent with prior pleadings. See Hernandez v. Schaad, No. 17-CV- 3 04055-HSG, 2017 WL 6731624, at *3 (N.D. Cal. Dec. 29, 2017); Hardin v. Mendocino Coast 4 Dist. Hosp., No. 17-CV-05554-JST, 2018 WL 2984834, at *5 (N.D. Cal. June 14, 2018). The 5 undersigned concurs with this approach and will permit plaintiff one final opportunity to state a 6 claim for relief, only as to her allegations that defendant Barron labeled her a “snitch.” Plaintiff is 7 advised, however, that when evaluating any fifth amended complaint she may elect to file, “the 8 court may also consider the prior allegations as part of its context-specific inquiry based on its 9 judicial experience and common sense to assess whether an amended complaint plausibly 10 suggests an entitlement to relief.” McKenna v. WhisperText, No. 5:14-CV-00424-PSG, 2015 WL 11 5264750, at *3 (N.D. Cal. Sept. 9, 2015) (internal quotation marks and brackets omitted). 12 Accordingly: 13 1. The findings and recommendations issued May 11, 2018 (Doc. No. 102) are adopted 14 15 in part; 2. Plaintiff’s claim for retaliation under 42 U.S.C. § 1983 is dismissed with leave to 16 17 amend; 3. Within 30 days from the date of service of this order, plaintiff is directed to file a fifth 18 amended complaint limited to her claim that defendant Barron labeled her as a 19 “snitch”; and 20 4. Plaintiff is warned that failure to timely file the amended complaint will result in 21 22 23 dismissal of this action. IT IS SO ORDERED. Dated: November 5, 2018 UNITED STATES DISTRICT JUDGE 24 25 26 27 28 4
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