Hernandez v. Ducart et. al., No. 3:2014cv04650 - Document 35 (N.D. Cal. 2015)
Court Description: ORDER by Judge James Donato granting 28 ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND (lrcS, COURT STAFF) (Filed on 11/17/2015)
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 ARMANDO HERNANDEZ, 7 Case No. 14-cv-04650-JD Plaintiff, 8 v. ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND 9 CLARK E. DUCART, et al., 10 Re: Dkt. No. 28 Defendants. United States District Court Northern District of California 11 12 Plaintiff Armando Hernandez, a former state prisoner proceeding pro se, has brought a 13 14 civil rights action under 42 U.S.C. § 1983. Defendants filed a motion to dismiss citing the statute 15 of limitations, failure to state a claim, failure to comply with California’s Government Claims Act, 16 and Eleventh Amendment immunity. Hernandez was paroled shortly after filing the complaint 17 and has not filed an opposition to the motion to dismiss or otherwise communicated with the Court 18 since April 29, 2015. The Court has looked to the merits of the motion and it is granted. 19 20 I. BACKGROUND Hernandez’s claims arise from his 2009 placement in the security housing unit (“SHU”) on 21 the basis of his association with the Mexican Mafia prison gang. The case continues against 16 22 defendants on various federal and state law claims. Hernandez argues that he was placed and 23 maintained in the SHU without due process of law, when he was not a gang member, because of 24 his association with members of a specific racial group, and in retaliation for assaults, free speech, 25 and jailhouse legal activities. Hernandez was initially placed in segregated housing on October 26 22, 2009, and was formally validated as an associate of the Mexican Mafia on November 19, 27 2009. He also alleges constitutional violations when defendants subsequently kept him in the 28 SHU in the years after the gang validation. When this case was filed on October 5, 2014, he was 1 still in the SHU. He has since been paroled from state prison. 2 II. LEGAL STANDARD 3 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests for the legal 4 sufficiency of the claims alleged in the complaint. Ileto v. Glock, Inc., 349 F.3d 1191, 1199-1200 5 (9th Cir. 2003). All allegations of material fact are taken as true. Erickson v. Pardus, 551 U.S. 6 89, 94 (2007). However, legally conclusory statements, not supported by actual factual 7 allegations, need not be accepted. See Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) (courts are 8 not bound to accept as true “a legal conclusion couched as a factual allegation”). “A plaintiff’s 9 obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell 11 United States District Court Northern District of California 10 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in original) (internal quotation 12 marks omitted). Rather, the allegations in the complaint “must be enough to raise a right to relief 13 above the speculative level.” Id. 14 III. 15 16 ANALYSIS A. Statute of Limitations Actions brought pursuant to 42 U.S.C. § 1983 are governed by the forum state’s statute of 17 limitations for personal injury actions. Wilson v. Garcia, 471 U.S. 261, 265 (1985); Jones v. 18 Blanas, 393 F.3d 918, 927 (9th Cir. 2004). The statute of limitations for civil actions filed in 19 California is two years, as set forth at California Civil Procedure Code section 335.1, which is the 20 applicable statute in § 1983 actions. See Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir. 2004). 21 The federal court also applies the forum state’s law regarding tolling, including equitable tolling, 22 when not in conflict with federal law. Hardin v. Straub, 490 U.S. 536, 537-39 (1989); Fink v. 23 Shedler, 192 F.3d 911, 914 (9th Cir. 1999). California provides that the applicable limitations 24 period is tolled for two years on grounds of “disability” when a litigant is incarcerated. Cal. Code 25 Civ. P. § 352.1(a). This tolling provision operates to delay the running of the limitations period. 26 Carlson v. Blatt, 87 Cal. App. 4th 646, 650 (2001) (imprisonment tolls running of limitations 27 period for two years from accrual of cause of action); Johnson v. State of California, 207 F.3d 28 2 1 650, 654 (9th Cir. 2000).1 It is federal law, however, that determines when a cause of action accrues and the statute of 2 3 limitations begins to run in a § 1983 action. Wallace v. Kato, 549 U.S. 384, 388 (2007); Elliott v. 4 City of Union City, 25 F.3d 800, 801-02 (9th Cir. 1994). Under federal law, a claim generally 5 accrues when the plaintiff knows or has reason to know of the injury which is the basis of the 6 action. See TwoRivers v. Lewis, 174 F.3d 987, 991-92 (9th Cir. 1999); Elliott, 25 F.3d at 802. 7 The applicable statute of limitations period is tolled while the prisoner completes the mandatory 8 exhaustion process. Brown v. Valoff, 422 F.3d 926, 943 (9th Cir. 2005). Hernandez was validated as a gang member on November 19, 2009. He had four years, 9 until November 19, 2013, to file his complaint in this Court. This action filed on October 5, 2014, 11 United States District Court Northern District of California 10 is nearly one year late. The claims arising out of the gang validation procedure are untimely. 12 Hernandez also states in the complaint that two defendants confiscated property that was used in 13 the gang validation process. This allegedly occurred on October 27 and November 12, 2009, and 14 therefore these claims are also untimely. Similarly, an allegation that a defendant interviewed him 15 on March 4, 2010, is also untimely. To the extent that Hernandez could be entitled to tolling, he 16 has not opposed this motion or raised any such arguments. Therefore, all claims arising from 17 events that occurred before October 5, 2010, are dismissed with prejudice.2 18 B. State Law Claims Defendants also move to dismiss Hernandez’s state law claims because he did not plead 19 20 compliance with the California Torts Claims Act (“GCA”) and documents obtained from the 21 Victim’s Compensation and Government Claims Board demonstrate that Hernandez has not filed 22 a claim.3 The GCA requires that a party seeking to recover money damages from a public entity or 23 24 25 26 27 28 1 The two years of tolling is for prisoners serving less than a life term. Cal. Civ. Proc. Code § 352.1(a) 2 Plaintiff’s claims for money damages against defendants in their official capacities are dismissed pursuant to the Eleventh Amendment. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). 3 The Court takes judicial notice of the document from the Victim’s Compensation and Government Claims Board provided by defendants. 3 its employees must submit a claim to the entity before filing suit in court, generally no later than 2 six months after the cause of action accrues. Cal. Gov’t Code §§ 905, 911.2, 945, 950.2; see also 3 Shirk v. Vista Unified Sch. Dist., 42 Cal. 4th 201, 208 (2007) (“Before suing a public entity, the 4 plaintiff must present a timely written claim . . .”). “The legislature’s intent to require the 5 presentation of claims before suit is filed could not be clearer.” City of Stockton v. Super. Ct., 42 6 Cal. 4th 730, 746 (2007) (“The purpose of providing public entities with sufficient information to 7 investigate claims without the expense of litigation is not served if the entity must file a responsive 8 pleading alerting its opponent to the claim requirements.”). Timely claim presentation is not 9 merely a procedural requirement of the GCA but is an element of a plaintiff’s cause of action. 10 Shirk, 42 Cal. 4th at 209. Thus, when a plaintiff asserts a claim subject to the GCA, he must 11 United States District Court Northern District of California 1 affirmatively allege compliance with the claim presentation procedure, or circumstances excusing 12 such compliance, in his complaint. Id. The requirement that a plaintiff asserting claims subject to 13 the GCA must affirmatively allege compliance with the claims filing requirement applies in 14 federal court as well. Karim-Panahi v. Los Angeles Police Dep’t., 839 F.2d 621, 627 (9th Cir. 15 1988). Hernandez has not demonstrated compliance with the GCA, and defendants have shown 16 17 18 19 that no claim was ever filed. The state law claims are dismissed from this action. C. Leave to Amend Defendants also argue that there are only bald assertions and legal conclusions against 20 several defendants. This argument is well taken. The complaint identifies 16 defendants, and in 21 many occasions there are only a few brief allegations connecting the individual defendant to the 22 alleged constitutional deprivation. Several of the defendants work in the state prison executive 23 offices in Sacramento and do not appear to have had any contact with Hernandez. It appears that 24 Hernandez has named them because they denied an appeal or are in a supervisory position. All of 25 these claims are dismissed for failure to state a claim. Because Hernandez failed to oppose the 26 motion to dismiss to rebut this argument, and due to the complicated nature of the complaint in 27 that there are numerous claims against 16 defendants and it is not always clear which claim is 28 attributed to which defendant, the complaint is dismissed. Hernandez may file an amended 4 1 complaint. He must identify the specific actions of each defendant and describe how they violated 2 his constitutional rights. Legally conclusory statements not supported by actual factual allegations 3 need not be accepted. See Iqbal, 556 U.S. at 678-79. “A plaintiff’s obligation to provide the 4 grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic 5 recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. 544 at 555 6 (alteration in original) (internal quotation marks omitted). Rather, the allegations in the complaint 7 “must be enough to raise a right to relief above the speculative level.” Id. “In a § 1983 or a Bivens action - where masters do not answer for the torts of their servants 8 9 - the term ‘supervisory liability’ is a misnomer. Absent vicarious liability, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct.” Iqbal, at 11 United States District Court Northern District of California 10 677. 12 A supervisor may be liable under section 1983 upon a showing of (1) personal 13 involvement in the constitutional deprivation or (2) a sufficient causal connection between the 14 supervisor's wrongful conduct and the constitutional violation. Henry A. v. Willden, 678 F.3d 991, 15 1003-04 (9th Cir. 2012) (citing Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011)). A plaintiff 16 must also show that the supervisor had the requisite state of mind to establish liability, which turns 17 on the requirement of the particular claim - and, more specifically, on the state of mind required 18 by the particular claim - not on a generally applicable concept of supervisory liability. Oregon 19 State University Student Alliance v. Ray, 699 F.3d 1053, 1071 (9th Cir. 2012). In addition, there is no constitutional right to a prison administrative appeal or grievance 20 21 system. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003); Mann v. Adams, 855 F.2d 639, 22 640 (9th Cir. 1988). The amended complaint must be filed within twenty-eight (28) days of service of this 23 24 order. Failure to file an amended complaint will result in dismissal of this action. The complaint 25 should only address federal claims arising after October 5, 2010. 26 IV. CONCLUSION 27 1. The motion to dismiss (Docket No. 28) is GRANTED as discussed above. 28 2. The complaint is DISMISSED with leave to amend as set forth above. The 5 1 amended complaint must be filed within twenty-eight (28) days of the date this order is filed and 2 must include the caption and civil case number used in this order and the words AMENDED 3 COMPLAINT on the first page. Because an amended complaint completely replaces the original 4 complaint, plaintiff must include in it all the claims he wishes to present. See Ferdik v. Bonzelet, 5 963 F.2d 1258, 1262 (9th Cir. 1992). He may not incorporate material from the original complaint 6 by reference. Failure to amend within the designated time will result in the dismissal of this 7 action. 8 3. It is the plaintiff’s responsibility to prosecute this case. Plaintiff must keep the Court informed of any change of address by filing a separate paper with the clerk headed “Notice 10 of Change of Address,” and must comply with the Court’s orders in a timely fashion. Failure to 11 United States District Court Northern District of California 9 do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of 12 Civil Procedure 41(b). 13 14 IT IS SO ORDERED. Dated: November 17, 2015 15 ________________________ JAMES DONATO United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 6 1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 4 ARMANDO HERNANDEZ, Case No. 14-cv-04650-JD Plaintiff, 5 v. CERTIFICATE OF SERVICE 6 7 CLARK E. DUCART, et al., Defendants. 8 9 10 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. United States District Court Northern District of California 11 12 13 14 15 That on November 17, 2015, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 16 17 18 Armando Hernandez 2757 Emerald Lane Lancaster, CA 93535 19 20 Dated: November 17, 2015 21 22 23 Susan Y. Soong Clerk, United States District Court 24 25 26 By:________________________ LISA R. CLARK, Deputy Clerk to the Honorable JAMES DONATO 27 28 7
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