(PC) Bell v. Duffy, et al., No. 2:2014cv00965 - Document 55 (E.D. Cal. 2015)
Court Description: ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 7/23/15 ORDERING that plaintiffs motion to file a fourth amended complaint (ECF No. 44 ) to add defendants Shaffer and Woodford as defendants with respect to his cla im challenging the calculation of filing fees is denied without prejudice; the court will issue further orders regarding these proposed new defendants following resolution of defendants summary judgment motion, if appropriate; It is RECOMMENDED that plaintiffs motion to file a fourth amended complaint (ECF No. 44 ) be denied with respect to his request to add his previously dismissed claims challenging the allegedly erroneous restitution order. Referred to Judge Garland E. Burrell, Jr.; Objections to F&R due within 14 days.(Dillon, M)
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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 DANNY BELL, 12 No. 2: 14-cv-0965 GEB KJN P Plaintiff, 13 v. 14 ORDER AND A. PAYAN, et al., 15 FINDINGS AND RECOMMENDATIONS Defendants. 16 17 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 18 to 42 U.S.C. § 1983. Pending before the court is plaintiff’s motion for leave to file a fourth 19 amended complaint and proposed fourth amended complaint. (ECF Nos. 44, 45). On May 19, 20 2015, defendants filed an opposition to this motion. 21 For the reasons stated herein, plaintiff’s motion to amend to include his previously 22 dismissed claim challenging the restitution order should be denied. Plaintiff’s motion to amend to 23 seek injunctive relief against defendants Woodford and Shaffer with respect to his claim 24 challenging the calculation of filing fees is denied without prejudice. 25 Standard for Considering Motion for Leave to Amend 26 Under Fed. R. Civ. P. 15(a)(2), the court “should freely give leave [to amend] when 27 justice so requires.” To determine whether to grant leave to amend, the court considers five 28 factors: “(1) bad faith; (2) undue delay; (3) prejudice to the opposing party; (4) futility of 1 1 amendment; and (5) whether the plaintiff has previously amended his complaint.” Nunes v. 2 Ashcroft, 375 F.3d 805, 808 (9th Cir. 2003) (citations omitted). “Futility alone can justify the 3 denial of a motion for leave to amend,” id., and prejudice to the opposing party “carries the 4 greatest weight.” Eminence Capital LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). 5 Delay alone, however, will not justify denying leave to amend. DCD Progs., Ltd. v. Leighton, 6 833 F.2d 183, 186 (9th Cir. 1987); see also United States v. Webb, 655 F.2d 977, 980 (9th Cir. 7 1981) (“The mere fact that an amendment is offered late in the case ... is not enough to bar it.”). 8 All inferences are drawn “in favor of granting the motion.” Griggs v. Pace Am. Group, Inc., 170 9 F.3d 877, 880 (9th Cir. 1999). “[T]he nonmoving party bears the burden of demonstrating why 10 leave to amend should not be granted.” Genentech, Inc. v. Abbott Labs., 127 F.R.D. 529, 530–31 11 (N.D. Cal. 1989). 12 Discussion 13 This action is proceeding on the second amended complaint filed October 20, 2014, as to 14 defendants Duffy and Payan. (ECF No. 23.) Plaintiff alleges that defendants did not properly 15 calculate his filing fee payments. (Id.) 16 Plaintiff’s second amended complaint contained a second claim alleging that the abstract 17 of judgment and minute order issued in his criminal case incorrectly stated that he was ordered to 18 pay restitution. On February 6, 2015, the court dismissed this claim for failing to state a 19 potentially colorable claim for relief. (ECF No. 31.) 20 The proposed fourth amended complaint names defendants Payan and Duffy as well as 21 Superior Court Reporter Nagao, Los Angeles County Deputy District Attorney Ken Lamb, Los 22 Angeles County Deputy Public Defender Clark, California Department of Corrections and 23 Rehabilitation (“CDCR”) Assistant Secretary Shaffer, CDCR Under Secretary Woodford, Deputy 24 Attorney General Heckler and California Medical Facility (“CMF”) Appeals Coordinator 25 Milliner. (ECF No. 45 at 1.) 26 The proposed fourth amended complaint contains plaintiff’s claim alleging that 27 defendants Duffy and Payan did not properly calculate his filing fees. However, plaintiff is also 28 attempting to bring his previously dismissed claim challenging the restitution order. The 2 1 proposed fourth amended complaint seeks injunctive relief as to both of these claims. (Id. at 13- 2 14.) It appears that plaintiff also seeks money damages only with respect to his claim challenging 3 the restitution order. (Id. at 14.) 4 With respect to the restitution order, plaintiff alleges that defendant Nagao made the 5 “erroneous” entry in his abstract of judgment stating that he owed restitution. (Id. at 7.) Plaintiff 6 alleges that he filed a grievance regarding the allegedly “erroneous” restitution order with 7 defendants Shaffer and Woodford. (Id. at 9.) In response, plaintiff received a letter stating that if 8 he continued to pursue his complaint regarding this issue, he would be placed on appeal 9 restriction. (Id.) Plaintiff alleges that defendant Heckler knows that the restitution order entered 10 by defendant Nagao is erroneous, but that she failed to submit the “truth” to the court. (Id. at 11.) 11 Plaintiff alleges that defendants Lamb and Clark failed to correct the erroneous restitution record. 12 (Id. at 11-12.) As discussed above, the court previously considered plaintiff’s claim challenging the 13 14 allegedly erroneous restitution order and found that it failed to state a potentially colorable claim 15 for relief. (See ECF Nos. 29, 31.) Under the law of the case doctrine, “a court is generally 16 precluded from reconsidering an issue previously decided by the same court, or a higher court in 17 the identical case.” United States v. Lummi Indian Tribe, 235 F.3d 443, 452 (9th Cir. 2000). 18 This doctrine has developed to “maintain consistency and avoid reconsideration of matters once 19 decided during the course of a single continuing lawsuit.” 18B Wright, Miller & Cooper, Federal 20 Practice and Procedure: Jurisdiction 2d § 4478, at 637–38 (2002). 21 A district court abuses its discretion in applying the law of the case doctrine only if (1) the 22 first decision was clearly erroneous; (2) an intervening change in the law occurred; (3) the 23 evidence on remand was substantially different; (4) other changed circumstances exist; or (5) a 24 manifest injustice would otherwise result. 235 F.3d at 452–53. Plaintiff has not demonstrated 25 that any of these exceptions warrant reconsideration of the previous order dismissing his claim 26 challenging the allegedly erroneous restitution order. Accordingly, plaintiff’s motion to amend to 27 include this claim should be denied. 28 //// 3 1 Plaintiff also alleges that defendants conspired to impose the erroneous restitution order 2 on him. A conspiracy, in and of itself, is not an actionable tort or separate cause of action under 3 42 U.S.C. § 1983. Lacey v. Maricopa County, 693 F.3d 896, 935 (9th Cir. 2012). “Conspiracy 4 may, however, enlarge the pool of responsible defendants by demonstrating their causal 5 connections to the violation; the fact of the conspiracy may make a party liable for the 6 unconstitutional actions of the party with whom he has conspired.” Id. 7 “A civil conspiracy is a combination of two or more persons who, by some concerted 8 action, intend to accomplish some unlawful objective for the purpose of harming another which 9 results in damage.” Gilbrook v. City of Westminster, 177 F.3d 839, 856 (9th Cir. 1999) (quoting 10 Vieux v. East Bay Reg'l Park Dist., 906 F.2d 1330, 1343 (9th Cir. 1990). To prove civil 11 conspiracy a plaintiff must show that the parties reached an understanding or agreement in an 12 unlawful arrangement. Lacey, 693 F.3d at 935. 13 Because the underlying constitutional claim challenging the restitution order does not state 14 a potentially colorable constitutional claim, plaintiff’s related conspiracy claim fails as well. 15 Moreover, plaintiff’s conclusory claims of conspiracy are insufficient to show a meeting of the 16 minds. Accordingly, plaintiff’s motion to amend to add a conspiracy claim should be denied. 17 Plaintiff also seeks to add defendants Shaffer and Woodford to his claim challenging the 18 calculation of filing fees. In particular, plaintiff requests that these defendants be ordered to 19 recalculate his filing fees. (ECF No. 45 at 13.) Defendants argue that plaintiff has not linked 20 defendants CDCR Assistant Secretary Shaffer and CDCR Under Secretary Woodford to his claim 21 challenging the calculation of filing fees. 22 In a complaint seeking injunctive relief only, all that is required is that the complaint name 23 an official who could appropriately respond to a court order on injunctive relief should one ever 24 be issued. Harrington v. Grayson, 764 F.Supp. 464, 475–477 (E.D. Mich. 1991); Malik v. 25 Tanner, 697 F.Supp. 1294, 1304 (S.D.N.Y. 1988) (“Furthermore, a claim for injunctive relief, as 26 opposed to monetary relief, may be made on a theory of respondeat superior in a § 1983 action.”); 27 Fox Valley Reproductive Health Care v. Arft, 454 F.Supp. 784, 786 (E.D. Wis. 1978). See also, 28 Hoptowit v. Spellman, 753 F.2d 779 (9th Cir. 1985), permitting an injunctive relief suit to 4 1 continue against an official’s successors despite objection that the successors had not personally 2 engaged in the same practice that had led to the suit. However, because a suit against an official 3 in his or her official capacity is a suit against the state, a practice, policy or procedure of the state 4 must be at issue in a claim for official capacity injunctive relief. Haber v. Melo, 502 U.S. 21, 25 5 (1991). 6 Plaintiff does not clearly allege that the at-issue filing fee policy is a state policy. For this 7 reason, the motion to amend to add defendants Shaffer and Woodford to this claim for injunctive 8 relief is denied without prejudice. On July 7, 2015, defendants Duffy and Payan filed a motion 9 for summary judgment on grounds that plaintiff failed to exhaust administrative remedies. If 10 defendants’ summary judgment motion is denied, plaintiff will be permitted to file an amended 11 complaint naming Shaffer and Woodford as defendants if he is challenging a state policy and if 12 defendants Shaffer and Woodford could respond to a court order on injunctive relief. If 13 defendants’ summary judgment motion is granted, plaintiff’s motion to amend to add Shaffer and 14 Woodford as defendants will be unnecessary. 15 Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion to file a fourth amended 16 complaint (ECF No. 44) to add defendants Shaffer and Woodford as defendants with respect to 17 his claim challenging the calculation of filing fees is denied without prejudice; the court will issue 18 further orders regarding these proposed new defendants following resolution of defendants’ 19 summary judgment motion, if appropriate; 20 IT IS HEREBY RECOMMENDED that plaintiff’s motion to file a fourth amended 21 complaint (ECF No. 44) be denied with respect to his request to add his previously dismissed 22 claims challenging the allegedly erroneous restitution order. 23 These findings and recommendations are submitted to the United States District Judge 24 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 25 after being served with these findings and recommendations, any party may file written 26 objections with the court and serve a copy on all parties. Such a document should be captioned 27 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 28 objections shall be filed and served within fourteen days after service of the objections. The 5 1 parties are advised that failure to file objections within the specified time may waive the right to 2 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 Dated: July 23, 2015 4 5 6 7 Bell965.ord 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6
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