Opinion
Case No. CV 12-2863-JGB (DTB)
07-16-2013
KAVIN MAURICE RHODES, Plaintiff, v. GIGI GORDON, ESQ., et al., Defendants.
REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE
JUDGE
This Report and Recommendation is submitted to the Honorable Jesus G. Bernal, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
PROCEEDINGS
Plaintiff, a California state prisoner, filed a pro se civil rights Complaint, pursuant to 42 U.S.C. § 1983 on April 9, 2012. Named as defendants in the Complaint were Attorneys GiGi Gordon ("Gordon"), Ralph J. Novotney ("Novotney"), Brentford Ferriera ("Ferreira"), Harvey Sherman ("Sherman"), Jess Gonzales ("Gonzales"), Cesey Lilienfeld ("Lilienfield"), Micheal P. Judge ("Judge"), Ralph R. Rios ("Rios"); the Honorable Sam Ohta ("Ohta"); Cristina Colon ("Colon"); Dane Dauphine ("Dauphine"), Assistant Chief Trial Counsel; and P. Eng ("Eng"), Deputy Trial Counsel. The gravamen of plaintiff's claims was that the defendants engaged in a conspiracy to deprive him of post-conviction discovery in state court.
Defendants note the correct spelling of the following defendants' names: "Gigi Gordon," "Brentford Ferreira," "Casey Lilienfield," and "Michael P. Judge."
On April 12, 2012, after screening the Complaint in accordance with 28 U.S.C. § 1915(e)(2), the Court found that it suffered from various deficiencies and dismissed it with leave to amend. On May 4, 2012, plaintiff filed a First Amended Complaint ("FAC") herein. Named as defendants in the FAC were Gordon, Novotney, Ohta, Ferreira, Sherman, Gonzales, Lilienfield, Judge, Rios, Colon, Dauphine, Eng, Sergeant Epperson ("Epperson"), and Officers Hernandez ("Hernandez") and Marin ("Marin"). The gravamen of plaintiff's claims in the FAC appeared to be the same as that of the Complaint. On May 9, 2012, the Court ordered the FAC to be served on defendants.
Thereafter, several defendants filed motions to dismiss the FAC. However, prior to ruling on these motions, plaintiff filed a "Request for Leave to File a Supplemental Pleading," which the Court granted on October 12, 2012. The Clerk was directed to file the proposed Second Amended Complaint ("SAC"), which was lodged with the Court on September 17, 2012, and the Court ordered defendants to file a response to the SAC. Named as defendants in the SAC are Gordon, Novotney, Ohta, Ferreira, Sherman, Gonzales, Lilienfield, Judge, Rios, Colon, Dauphine, Eng, Epperson, Hernandez, Marin, Clerk of the Superior Court Gloria Barreras ("Barreras"), and Official Court Reporter Georgette L. Rodarte ("Rodarte"). The gravamen of plaintiff's claims in the SAC appear to be essentially the same as that of the Complaint and FAC.
On October 26, 2012, Ohta filed a Motion to Dismiss ("Ohta MTD") on the grounds that the Court lacks subject matter jurisdiction, the SAC fails to allege sufficient facts to state a cognizable legal theory, Ohta is entitled to absolute immunity, and plaintiff lacks Article III standing to sue Ohta. On the same date, the State Bar defendants Eng and Dauphine filed a Motion to Dismiss ("State Bar MTD"), on the grounds that the SAC is jurisdictionally barred and fails to state a claim upon which relief can be granted. Also, on the same date, prison official defendants Marin and Epperson filed a Motion to Dismiss ("Prison Officials MTD"), on the grounds that the Court lacks subject matter jurisdiction, plaintiff lacks standing to seek injunctive relief, and plaintiff fails to state a claim upon which relief can be granted. On October 31, 2012, Ferreira, Sherman, Lilienfield, and Judge filed a Motion to Dismiss ("Attorney MTD") on the grounds that plaintiff fails to state a claim upon which relief can be granted and the claims are legally deficient because of various applicable immunities.
On November 8, 2012, Novotney filed a Motion to Dismiss ("Novotney MTD"), on the grounds that plaintiff fails to state a claim upon which relief can be granted, the claims are barred by the Rooker-Feldman doctrine, and the SAC fails to state a case or controversy. Also, on the same date, the Estate of Gigi Gordon filed a "Motion of Specially Appearing Defendant to Quash Service of Summons" ("Motion to Quash"), on the ground that no effective service was made pursuant to Fed. R. Civ. P. 4.
On November 19, 2012, Gonzales filed a Motion to Dismiss ("Gonzales MTD"), on the grounds of lack of subject matter jurisdiction, failure to comply with Fed. R. Civ. P. 8, and failure to state a claim upon which relief can be granted. On December 13, 2012, plaintiff filed an Opposition to the Prison Officials MTD ("Opp. Prison Officials MTD"). After one extension of time, on December 14, 2012, plaintiff filed an Opposition to the Attorney MTD. On the same date, plaintiff also filed an Opposition to the Gonzales MTD and an Opposition to the State Bar MTD. On January 3, 2013, defendants Rios and Colon filed a Motion to Dismiss ("Rios/Colon MTD"), on the grounds of lack of subject matter jurisdiction, failure to comply with Fed. R. Civ. P. 8, and failure to state a claim upon which relief can be granted. After one extension of time, on January 18, 2013, plaintiff filed an Opposition to the Ohta MTD. After one extension of time, on January 22, 2013, plaintiff filed an Opposition to the Novotney MTD ("Opp. Novotney MTD"). On January 23, 2013, plaintiff filed an Opposition to the Motion to Quash. After one extension of time, on February 25, 2013, plaintiff filed an Opposition to the Rios/Colon MTD. On June 6, 2013, plaintiff filed Supplemental Authorities in support of his Opposition to the Attorney MTD.
Thus, this matter is now ready for decision. For the reasons discussed below, the Court recommends that the Motions be granted and that plaintiff be granted leave to amend certain claims, as described hereinafter.
STANDARD OF REVIEW
A Rule 12(b)(1) motion to dismiss tests whether a complaint alleges grounds for federal subject matter jurisdiction. "Subject-matter jurisdiction" "refers to a tribunal's 'power to hear a case,' a matter that 'can never be forfeited or waived.'" Union Pac. R.R. Co. v. Bhd. of Locomotive Engineers & Trainmen Gen. Comm. of Adjustment, Cent. Region, 558 U.S. 67, 81, 130 S. Ct. 584, 175 L. Ed. 2d 428 (2009) (citations omitted). The Court may "hear evidence regarding jurisdiction" and "resolv[e] factual disputes where necessary." Robinson v. United States, 586 F.3d 683, 685 (9th Cir. 2009) (citation omitted, alteration in original). Plaintiff bears the burden of establishing subject matter jurisdiction. See id.; Thornhill Publ'g Co. v. Gen. Tel. & Elec. Corp., 594 F.2d 730, 733 (9th Cir. 1979); see also Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S. Ct. 1673, 128 L. Ed. 2d 391 (1994).
A Rule 12(b)(6) motion to dismiss tests the formal sufficiency of a statement of claim for relief. A complaint may be dismissed as a matter of law for failure to state a claim for two reasons: (1) Lack of a cognizable legal theory; or (2) insufficient facts under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990) (as amended). In determining whether the complaint states a claim on which relief may be granted, its allegations of material fact must be taken as true and construed in the light most favorable to plaintiffs. See Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1990) (as amended); see also Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008). "[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). Further, since plaintiff is appearing pro se, the Court must construe the allegations of the complaint liberally. Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007) (per curiam); see also Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (as amended). However, "a liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled." Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).
The Court notes that Balistreri has been overruled by Bell Atl. Corp. v. Twombly, 550 U.S. 544, 562-63, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007), to the extent that it followed the rule that, "[a] complaint should not be dismissed under Rule 12(b)(6) 'unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" 901 F.2d at 699 (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957)).
Moreover, with respect to plaintiff's pleading burden, the Supreme Court has held that:
[A] plaintiff's obligation to provide the "grounds" of his "entitle[ment] to relief" requires more than labels and conclusions, and a formulaicTwombly, 550 U.S. at 555 (internal citations omitted and alteration in original). In other words, the allegations must be plausible on the face of the complaint. See Iqbal, 556 U.S. at 678. The Supreme Court has held that:
recitation of the elements of a cause of action will not do. . . . Factual allegations must be enough to raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact).
The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of 'entitlement to relief.'"Id. (citations omitted); see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) ("for a complaint to survive a motion to dismiss, the non-conclusory 'factual content,' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief" (citing Iqbal, 556 U.S. at 678)).
REQUESTS FOR JUDICIAL NOTICE
Preliminarily, the Court must consider the parties' Requests for Judicial Notice ("RJN"). On October 26, 2012, Ohta filed a RJN ("Ohta RJN") in support of his Motion to Dismiss, in which he requests the Court to take judicial notice of various pleadings and orders from People v. Rhodes, Los Angeles County Superior Court, Case No. A968415 ("Case No. A968415"). Additionally, pursuant to the Court's June 24, 2013 Minute Order, Ohta filed a Supplemental Request for Judicial Notice ("Ohta Supp. RJN") on July 1, 2013, seeking judicial notice of the Reporter's Transcript from June 22, 2012, in Case No. A968415. Novotney also filed a RJN in support of his Motion to Dismiss, in which he also requests that the Court take judicial notice of various pleadings and orders from Case No. A968415.
On December 13, 2012, plaintiff filed a RJN ("Pl. RJN 1") in support of his Opposition to the Prison Officials MTD, in which he requests the Court to take judicial notice of: (1) His petition for writ of mandate filed in the California Court of Appeal; (2) the Court of Appeal's denial of plaintiff's petition for writ of mandate in Case No. B216030; (3) the Court of Appeal's denial of plaintiff's petition for writ of mandate in Case No. B217749; (4) the California Supreme Court's denial of plaintiff's Petition for Review in Case No. S173380; (5) plaintiff's screened-out medical appeals dated March 9, 2011; and (6) various articles purportedly regarding Judge Smith.
Plaintiff filed another RJN ("Pl. RJN 2") on January 18, 2013 in support of his Opposition to the Ohta MTD. Plaintiff requests that the Court take judicial notice of: (1) Various pleadings and an order from Case No. A968415; (2) a petition for writ of mandate filed in the California Court of Appeal; (3) the California Court of Appeal's denial of plaintiff's petition for writ of mandate in Case No. B216036; (4) the California Court of Appeal's denial of plaintiff's petition for writ of mandate in Case No. B217749; (5) the California Supreme Court's denial of plaintiff's petition for review in Case No. S173380; (6) a letter from Lilienfield to plaintiff dated May 14, 2009; (7) plaintiff's legal mail logs; (8) the reporter's transcript from January 21, 2011 in Case No. A968415; (9) letters from Novotney to plaintiff; and (10) various articles regarding Judge Smith.
On January 22, 2013, plaintiff filed a third RJN, in which he requests that the Court take judicial notice of various documents that have previously been submitted for judicial notice.
The Court may take judicial notice of the existence of court filings and another court's orders. See Holder v. Holder, 305 F.3d 854, 866 (9th Cir. 2002) (taking judicial notice of opinion and briefs filed in another proceeding); United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) (courts "may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue" (citation omitted)). As such, the Court takes judicial notice of the court filings, orders, and reporter's transcripts from plaintiff's other actions, including in Case No. A968415.
Federal Rule of Evidence 201 also allows a court to take judicial notice of facts "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." A court may take judicial notice of "matters of public record." Harris v. Cnty. of Orange, 682 F.3d 1126, 1132 (9th Cir. 2012); Reyn's Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006). With respect to plaintiff's screened-out administrative appeals and plaintiff's legal mail logs from Kern Valley State Prison, even assuming that such records are matters of public record, the Court cannot take judice notice under Rule 201 of any further inferences regarding the documents, such as whether the contents contained in such documents are accurate and true. Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001). As such, while the Court will take judicial notice of the fact of these documents' existence, the Court declines to take judicial notice of the facts contained in such documents.
Similarly, with respect to the articles, although a court may take judicial notice of such articles as evidence of "what was in the public realm at the time," it may not do so as evidence that "the contents of those articles [a]re in fact true." Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir. 2010) (as amended). Here, because plaintiff intends to use them for the truth of the contents therein, the Court denies plaintiff's request to take judicial notice of these documents.
Finally, the Court declines to take judicial notice of the various letters sent to plaintiff by defendants. These letters are not proper subjects for judicial notice. "Judicial notice is reserved for matters 'generally known within the territorial jurisdiction of the [ ] court' or 'capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.'" Jespersen v. Harrah's Operating Co., Inc., 444 F.3d 1104, 1110 (9th Cir. 2006) (en banc) (quoting Fed. R. Evid. 201). The matters alleged in the letters are not matters generally known throughout the Central District of California and plaintiff essentially asserts in his SAC that the authors of the letters are not sources who accuracy cannot reasonably be questioned. See id. Accordingly, the Court denies plaintiff's request to take judicial notice of these documents. See N.D. ex rel. Parents Acting as Guardians Ad Litem v. Haw. Dep't of Educ., 600 F.3d 1104, 1113 n. 7 (9th Cir. 2010); Reusser v. Wachovia Bank, N.A., 525 F.3d 855, 858 n. 3 (9th Cir. 2008) (declining to take judicial notice because the accuracy of the declaration was subject to reasonable dispute).
SUMMARY OF PLAINTIFF'S ALLEGATIONS
As best the Court can glean from the allegations of the SAC, plaintiff appears to be alleging that defendants conspired against him to deprive him of post-conviction discovery he purportedly needs in support of a petition for writ of habeas corpus. In particular, plaintiff alleges that on or about February 15, 2009, he learned that his name "had been spotted by a fellow prisoner" "as having been attached to some sort of document attached to the 1989-90 Los Angeles County Grand Jury Report," a report which, according to plaintiff, concerned an investigation into the use of jailhouse informants in criminal cases in Los Angeles County. (SAC at 7.) As such, plaintiff allegedly submitted a pre-habeas corpus discovery motion ("first discovery motion") to the Los Angeles County Superior Court purportedly pursuant to Cal. Penal Code § 1054.9, inquiring whether the District Attorney's Office had any documentary evidence that its witness in his underlying criminal prosecution, Hyron Tucker ("Tucker") had received any sort of inducement for his testimony against plaintiff in plaintiff's 1989 criminal jury trial and whether the Los Angeles County Public Defender's Office was aware of any such benefits at the time "that it pretended to represent [p]laintiff." (SAC at 7-8.) This motion was filed with the Los Angeles County Superior Court on February 24, 2009. (Ohta RJN, Exh. 1.) It appears that this discovery motion was transferred to Judge Ohta in the Los Angeles County Superior Court on July 14, 2009. (Ohta RJN, Exh. 2.) The Minute Order transferring this motion reflected that plaintiff was provided notice of this transfer. (Id.)
Nevertheless, plaintiff alleges in the SAC that the Los Angeles County Superior Court did not acknowledge receipt of plaintiff's first discovery motion and therefore, plaintiff filed a petition for writ of mandate in the California Court of Appeal on May 13, 2009. (SAC at 8; see also Pl. RJN 1, Exh. 1.) This petition was denied on May 19, 2009. (Pl. RJN 1, Exh. 2.) Plaintiff then sought review in the California Supreme Court, which was denied on July 8, 2009. (SAC at 8; Pl. RJN 1, Exh. 4.)
Plaintiff alleges in the SAC that this petition was denied on August 19, 2009. (SAC at 8.)
Thereafter, plaintiff appears to allege that he filed several additional petitions for writ of mandate to the California Court of Appeal to demonstrate that he did file his first discovery motion on or about February 15, 2009. (SAC at 8; see also Pl. RJN 1, Exh. 3.) On May 14, 2009, plaintiff received a letter from Lilienfield of the Public Defender's Office, stating that plaintiff's first discovery motion had been sent to the "court," and which had, in turn, been forwarded to the Public Defender's Office by Gordon, an attorney from the Post Conviction Assistance Center. (SAC at 8.) Plaintiff alleges that he does not know how Gordon would have gotten possession of this motion. (Id.) Plaintiff alleges that he was then prompted to file another petition for writ of mandate in the Court of Appeal in an attempt to have his first discovery motion processed. (Id.)
The Court of Appeal noted that the Los Angeles County Superior Court's records for Case No. A968415 did not show any documents filed by plaintiff since 1988, but the Court notes that this appears to be contradicted by the judicially-noticed documents from Case No. A968415 reflecting otherwise.
Meanwhile, plaintiff filed several "State Bar Complaints" against Gordon, Lilienfield, Judge, and Sherman alleging that these attorneys were acting in collusion with court personnel in a conspiracy to intercept and refuse to process plaintiff's first discovery motion. (SAC at 9.) Plaintiff alleges that these defendants conspired against him because of the information he sought in his first discovery motion. (Id.)The State Bar defendants allegedly denied plaintiff's complaints and plaintiff submitted a request for review. (Id.) He also notified the State Bar that he intended to sue Gordon for conspiring to obstruct justice in violation of RICO, and would also name the Chief Trial Counsel of the State Bar for refusing to inquire of Gordon as to how she came into possession of the first discovery motion. (Id.) Thereafter, the State Bar contacted the Superior Court, and on or about July 23, 2009, plaintiff was informed by the Superior Court that his first discovery motion would be filed. (Id.) Up to that time, plaintiff alleges that the Superior Court allegedly continued to maintain that it had not received plaintiff's first discovery motion. (Id.)
On or about October 29, 2009, plaintiff alleges that he was notified in writing by Gordon that Ferreira told her that Gordon had been appointed by Ohta. (SAC at 9-10.) Plaintiff allegedly requested Gordon to produce an order from the Superior Court to substantiate her appointment. (SAC at 10.) Gordon responded in writing on January 26, 2010, stating that she did not receive a formal appointment by the court, and that she was not in court when she was appointed. (Id.) Plaintiff alleges that this "ruse" was confirmed by Ohta in a letter dated March 1, 2012. (Id.) Plaintiff allegedly continued to "interrogate" Gordon regarding how she came into possession of plaintiff's first discovery motion. (Id.) In response, on November 25, 2009, Gordon began forwarding letters trying to explain how she came into possession of the first discovery motion, which plaintiff appears to allege are false. (Id.) Among these letters was one, dated July 1, 2010, in which Gordon purportedly explained to plaintiff that there was no legal process for the courts to answer his question regarding whether Judge Smith and Officer Smith (alleged to be participants in his criminal trial) were related. (SAC at 12.)
Thereafter, plaintiff suggested to Gordon that she file a discovery motion pursuant to Cal. Penal Code § 832.8, Pitchess v. Superior Court, 11 Cal. 3d 531, 113 Cal. Rptr. 897 (1974), superseded by statute as stated in City of San Jose v. Superior Court, 5 Cal. 4th 47, 19 Cal. Rptr. 2d 73 (1993), and Hurd v. Superior Court, 144 Cal. App. 4th 1100, 50 Cal. Rptr. 3d 893 (2007), in order to probe the personnel files of Officer Smith and to determine if he has a familial relationship to Judge Smith. (SAC at 12.) At first, Gordon allegedly refused, but later asked plaintiff to send his trial transcripts. (Id.) On April 12, 2010, Gordon sent plaintiff a letter claiming that she had not received the transcripts sent to her by plaintiff, and thereafter, allegedly refused to file the motion. (SAC at 12-13.) Plaintiff filed a second discovery motion in pro se ("pro se Pitchess motion") on November 18, 2010. (Ohta RJN, Exh. 3.) On November 19, 2010, the Superior Court ordered the Kern Valley State Prison Litigation Coordinator to make plaintiff available for a telephonic conference on December 9, 2010. (Ohta RJN, Exh. 4.) On December 7, 2010, the Los Angeles County Police Department Custodian of Records filed an Opposition to plaintiff's pro se Pitchess motion. (Ohta RJN, Exh. 5.) On December 9, 2010, the Superior Court ordered the Kern Valley State Prison Litigation Coordinator to make plaintiff available for a telephonic conference on January 21, 2011. (Ohta RJN, Exh. 6.) A hearing was held on January 21, 2011, at which plaintiff appeared by telephone, and Novotney appeared on behalf of plaintiff. (SAC at 13; Ohta RJN, Exh. 7.) At the hearing, the Superior Court inquired whether plaintiff wanted to go forward with his pro se Pitchess motion, or withdraw that motion and wait for Gordon to file a motion on his behalf. (Pl. RJN 2, Exh. 11 at 2.) Novotney explained that the "main stumbling block" to Gordon's preparing and filing a Pitchess motion was her lack of access to reporter's transcripts, and that she was in the process of obtaining them. (Id.) The Superior Court indicated that it was prepared to rule on plaintiff's pro se Pitchess motion, but that the decision as to how plaintiff would like to proceed was up to him. (Id. at 3.) Plaintiff stated on the record that he "would really like to have counsel's involvement, if possible." (Id.) As such, the Superior Court withdrew plaintiff's pro se Pitchess motion. (Id.) Novotney raised the issue regarding the familial relationship of Officer Smith and the Superior Court continued that issue. (Id. at 3-5.) The Minute Order from the hearing confirms that plaintiff's pro se Pitchess motion was withdrawn and that Gordon would re-file the motion on plaintiff's behalf. (Ohta RJN, Exh. 7.)
Plaintiff alleges in the SAC that he filed the motion on or about December 19, 2010. (SAC at 13.) The motion was signed on November 1, 2010. (Ohta RJN, Exh. 3.)
Plaintiff further alleges that on February 16, 2011, Hernandez and Marin appeared at plaintiff's cell claiming to be conducting a random cell search, and allegedly without provocation, beat plaintiff, and planted an inmate manufactured weapon on him for the sole purpose of throwing plaintiff in the hole to confiscate all of his legal documents. (SAC at 13.) At that time, Epperson appeared and stated: "Those judges are going to make sure you die in prison," which plaintiff contends was in reference to his discovery proceedings. (Id.)
Soon thereafter, plaintiff allegedly received a letter from Gordon, again refusing to file plaintiff's Pitchess motion. (SAC at 13.) In the interim, plaintiff alleges that he was being denied access to his legal materials by the prison officials. (Id.)
On or about March 18, 2011, plaintiff alleges that he filed, pro se, a motion for a ruling on his pro se Pitchess motion as well as a supplemental discovery motion. (SAC at 14.) Plaintiff also filed another petition for writ of mandate to the California Court of Appeal asking that the Court of Appeal force a ruling on plaintiff's request for a ruling and order Ohta to fire Gordon, which was denied. (Id.) Plaintiff then filed a Petition for Review in the California Supreme Court, which was denied on August 24, 2011. (Id.)
On or about May 25, 2011, plaintiff received a letter from Novotney, in which Novotney claimed that because of health reasons Gordon would not be returning to the Post Conviction Assistance Center, and as such, Novotney received plaintiff's files and his request for a ruling on the pro se Pitchess motion. He also inquired whether plaintiff would be willing to accept Novotney as counsel, to which plaintiff responded that he did not want him to represent him. (SAC at 14.) Nevertheless, plaintiff alleges that on May 31, 2011, Novotney forwarded a letter to plaintiff informing plaintiff that Ohta had, sua sponte, appointed Novotney to file plaintiff's Pitchess motion and indicating that he would be forwarding a declaration for plaintiff to sign. (SAC at 14.) As of the date of the filing of the FAC, plaintiff alleges that Novotney had not forwarded either the Pitchess motion nor the declaration. (SAC at 15.) Instead, on July 20, 2011, plaintiff alleges that Novotney forwarded to plaintiff a box containing 4,300 pages of documents, asking plaintiff to review the documents, and thereafter, inform Novotney of the claims plaintiff wished to raise on habeas review so that he could determine how those claims would relate to the Pitchess motion. (Id.) Plaintiff alleges that he responded to Novotney on August 10 and 11, 2011. (Id.) On September 13, 2011, Novotney responded, acknowledging receipt of plaintiff's correspondence, but explained that he was still working on the Pitchess motion as he was "working on it as well as motions and petitions in many other cases." (Id.)
Meanwhile, on May 31, 2011, the Superior Court set a hearing for July 19, 2011 on one of plaintiff's discovery motions. (Ohta RJN, Exh. 8.) It appears that this matter was taken off calendar on July 19, 2011. (Ohta RJN, Exh. 9.) Plaintiff alleges that on August 1, 2011, Novotney informed plaintiff in writing that he had an off the record conversation with Ohta, in which Ohta purportedly said that plaintiff's Pitchess motion would be denied. (SAC at 15-16.)
On October 14, 2011, Novotney allegedly sent plaintiff a letter stating that the prosecution witness Tucker testified at trial that he did not receive any inducement for his testimony, but explained that " documentary evidence exist[s] that contradicts that." (SAC at 16.) Novotney asked whether plaintiff had any documents that could tie Officer Smith to Tucker for purposes of a Brady claim. (Id.) After being released from the "hole" based on the "fabricated weapons possession charges," plaintiff allegedly wrote Novotney a letter around November 10, 2011 stating that it was clear that Novotney had no intention of filing plaintiff's Pitchess motion and that plaintiff was contemplating his next move. (SAC at 16-17.) On November 19, 2011, the same prison officials that allegedly "framed" plaintiff on February 16, 2011, informed him that he was going to be placed back in the hole under the allegedly false pretense of investigating plaintiff's claim that the weapon was planted on him, and thereafter, did so through cell extraction with harsh chemical agents even though plaintiff alleges that he was found not guilty of the fabricated rules violation report. (SAC at 17.)
On December 23, 2011, after again being released from segregated housing, plaintiff alleges that Novotney informed him that the California Supreme Court had recently granted review on one of his cases with respect to DNA testing, even though plaintiff alleges that his trial did not concern any issues of DNA evidence. (SAC at 17.)
On or about January 11, 2012, plaintiff allegedly filed another complaint with the State Bar of California against Gordon, Novotney, Ferreira, and Gonzales with regard to their allegedly collusive conspiracy to prevent and to block plaintiff from obtaining information out of Officer Smith's personnel file. (SAC at 19-20.) This complaint was apparently denied on February 15, 2012. (SAC at 20.)
On or about February 24, 2012, Novotney allegedly explained to plaintiff that he had failed to elaborate upon how Officer Smith's personnel file is material to any claim cognizable on habeas corpus, although plaintiff contends this is contradicted by his pro se Pitchess motion, and the declaration he filed in support thereof. (SAC at 19.)
On February 28, 2012, plaintiff filed a petition for writ of habeas corpus in the Los Angeles County Superior Court raising, inter alia, a claim regarding the conspiracy alleged above. (SAC at 20.) On March 8, 2012, this claim was dismissed, and the rest of the petition was transferred to Ohta for resolution. (Id.; Ohta RJN, Exh. 10.)
Meanwhile, Novotney allegedly claimed on February 24, 2012, that he planned to complete the Pitchess motion sometime in March 2012, but had not done so by the filing of the FAC. (SAC at 21.) On March 7, 2012, the California Court of Appeal denied another petition for writ of mandate requesting that Novotney be relieved as counsel and to obtain a ruling on his pro se Pitchess motion. (Id.)
On April 9, 2012, plaintiff received a letter from the State Bar which appeared to indicate that it was possibly considering reopening the complaint against Novotney. (SAC at 21-22.) After notifying Novotney of the instant action, Novotney responded that Ohta had scheduled a telephonic hearing on May 22, 2012. (SAC at 22.) Meanwhile, Novotney filed a Pitchess motion on May 22, 2012, which was scheduled to be heard on May 22, 2012. (Pl. RJN 2, Exh. 12; SAC at 23.) At the telephonic hearing on May 22, 2012, plaintiff alleges that Ohta indicated to plaintiff that he would be allowed to be present in court if he agreed to withdraw the pro se Pitchess motion and allow the court to proceed on the Pitchess motion filed by Novotney. Plaintiff allegedly responded that he did not think that was wise because he had not seen the motion filed by Novotney. (SAC at 23.) Ohta agreed to conduct another telephonic hearing on June 15, 2012 to give Novotney time to forward his Pitchess motion to plaintiff for review. (Id.) The Minute Order from the hearing reflected that plaintiff agreed to continue the ruling on his petition for writ of habeas corpus for 60 days to review the Pitchess motion. (Ohta RJN, Exh. 11.) Upon review of the Pitchess motion filed by Novotney, plaintiff alleges that he noticed that the motion did not seek information regarding Officer Smith's familial relationship to Judge Smith (SAC at 23), in spite of the fact that the Pitchess motion did discuss the potential relationship between Judge Smith and Officer Smith. (Pl. RJN 2, Exh. 12.) Plaintiff allegedly followed up with Novotney regarding this omission, but he did not respond. (SAC at 24.) At the hearing on June 15, 2012, plaintiff agreed to have Novotney represent him on the discovery motions and the Pitchess motion was set for hearing. (Ohta RJN, Exh. 12.) Plaintiff alleges that at this hearing, he again asked Novotney regarding the failure to include any requests for information regarding Officer Smith's familial relationship, but Novotney refused to answer the question. (SAC at 24.) Plaintiff alleges that Ohta then reversed his earlier ruling and denied plaintiff's right to be present at the June 22, 2012 hearing. (Id.) On June 19, 2012, the Superior Court issued a Minute Order explaining that: (1) Plaintiff initially filed a discovery motion in pro se, along with a habeas petition; (2) the Post Conviction Assistance Center then filed a discovery motion on his behalf; (3) a hearing was held on May 22, 2012 to determine which motion to litigate and was continued to June 15, 2012 in order to give plaintiff an opportunity to review the motions; and (4) on June 15, 2012, plaintiff agreed to allow the Post Conviction Assistance Center to represent him on the discovery motion, but not the habeas petition and that a continuance of the habeas petition was necessary to first consider the discovery motion and then to provide plaintiff additional time to amend or change his habeas petition. (Ohta RJN, Exh. 13.) Plaintiff alleges that he was not present at the June 22, 2012 hearing, even though the Minute Order reflects that he was present in court and represented by Novotney. (SAC at 24-25; Ohta RJN, Exh. 14.) At the June 22, 2012 hearing, the Superior Court denied plaintiff's pending discovery motion. (Ohta RJN, Exh. 14; Ohta Supp. RJN, Exh. 15.) At the hearing, Novotney explained, and Ohta confirmed, that two documents were filed on May 22, 2012. The first request was a Pitchess motion and the second was a request for ruling, meant to "capture[] everything" that plaintiff was requesting in discovery. (Ohta Supp. RJN, Exh. 14 at 2-3.)
Based on the foregoing allegations, plaintiff asserts twenty-eight claims for relief, alleging conspiracy to obstruct justice, mail fraud, denial of access to the courts, violations of the First and Fourteenth Amendments, violation of the Hobbs Act, violation of RICO, and denial of honest services. Plaintiff seeks an order compelling the Los Angeles County Superior Court and Ohta to provide the information he requested in his discovery motions; $1,000,000 from Gordon, Novotney, Ferreira, Sherman, Lilienfield, Gonzales, Rios, Eng, Dauphine, Colon, Barreras, and Rodarte; treble damages; an injunction that prohibits the prison officials from conspiring with the other defendants to beat plaintiff, frame him, and deny him access to the law library and legal materials; and the forfeiture of the privilege to practice law in the State of California as to any defendant found to have used their license to practice law as a tool to defraud plaintiff of his legal rights. (SAC at 35.)
DISCUSSION
I. The Court lacks jurisdiction under the Rooker-Feldman doctrine to consider plaintiff's claims challenging the underlying state court ruling on his discovery motions.
The Rooker-Feldman doctrine, derived from two United States Supreme Court opinions, provides that federal district courts may exercise only original jurisdiction; they may not exercise appellate jurisdiction over state court decisions. See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482-86, 103 S. Ct. 1303, 75 L. Ed. 2d 206 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16, 44 S. Ct. 149, 68 L. Ed. 362 (1923); Bennett v. Yoshina, 140 F.3d 1218, 1223 (9th Cir. 1998) (as amended). Instead, the proper court in which to obtain such review is the United States Supreme Court. See Feldman, 460 U.S. at 476, 486; Rooker, 263 U.S. at 416. The Rooker-Feldman doctrine applies not only to final state court orders and judgments, but to interlocutory orders and non-final judgments issued by a state court as well. Doe & Associates Law Offices v. Napolitano, 252 F.3d 1026, 1030 (9th Cir. 2001); Worldwide Church of God v. McNair, 805 F.2d 888, 893 n.3 (9th Cir. 1986).
The Rooker-Feldman doctrine applies even when the challenge to the state court decision involves federal constitutional issues. See Dubinka v. Judges of the Superior Court of the State of Cal., 23 F.3d 218, 221 (9th Cir. 1994); Worldwide Church of God, 805 F.2d at 891; see also Branson v. Nott, 62 F.3d 287, 290-92 (9th Cir. 1995) (involving procedural due process challenge to state court proceedings). A plaintiff may not avoid the Rooker-Feldman bar by styling his attack on the state court's ruling as a civil rights action. Branson, 62 F.3d at 291; Worldwide Church of God, 805 F.2d at 893 n.4.
In analyzing whether it has jurisdiction to hear a particular constitutional challenge, a federal district court first must determine whether plaintiff is attempting to bring a "forbidden de facto appeal." See Noel v. Hall, 341 F.3d 1148, 1163 (9th Cir. 2003). Such is the case "[i]f a federal plaintiff asserts as a legal wrong an allegedly erroneous decision by a state court, and seeks relief from a state court judgment based on that decision." See id. at 1164. Further, if the court determines that plaintiff is attempting to bring a de facto appeal, plaintiff also is barred from litigating "any issues that are 'inextricably intertwined' with issues in that de facto appeal." See Kougasian v. TMSL, Inc., 359 F.3d 1136, 1142 (9th Cir. 2004); see also Feldman, 460 U.S. at 482 n.16 (stating that "[i]f the constitutional claims presented to a United States District Court are inextricably intertwined with the state court's [decision], then the District Court is in essence being called upon to review the state court decision"); Worldwide Church of God, 805 F.2d at 892. "Where the district court must hold that the state court was wrong in order to find in favor of the plaintiff, the issues presented to both courts are inextricably intertwined," and the Rooker-Feldman doctrine requires that the federal court decline jurisdiction. See Doe & Associates Law Offices, 252 F.3d at 1030; see also Partington v. Gedan, 961 F.2d 852, 865 (9th Cir. 1992) (as amended) (applying the Rooker-Feldman doctrine where plaintiff sought to have the district court review a state court decision interpreting a state court rule).
Here, in the SAC, plaintiff challenges the Superior Court's denial of his discovery motions and asserts that various defendants, including the Superior Court judge, defense counsel, the prosecuting attorney, the court reporter, and the court clerk, are involved in a conspiracy to deprive him of documentary evidence that would support a petition for writ of habeas corpus challenging his underlying state court conviction from 1989.
Plaintiff's claims are substantially similar to those raised in Cooper v. Ramos, 704 F.3d 772 (9th Cir. 2012). In Cooper, the plaintiff filed a suit in federal district court challenging a state court's denial of his request to obtain additional DNA testing pursuant to a state statute. In his civil rights complaint, the plaintiff in Cooper alleged that he was the target of a long-running conspiracy to manipulate evidence and to prevent him from proving that he was framed. Id. at 775. On appeal, the Ninth Circuit agreed with the federal district court that all of plaintiff's claims were barred by the Rooker-Feldman doctrine. First, with respect to the plaintiff's challenge to the underlying decision, the plaintiff attacked the Superior Court's decision to deny his motion under Cal. Penal Code § 1405, complaining that by doing so, he was being deprived of his liberty and property interests without due process of the law. However, by challenging both the prosecutor's conduct and the state court's application of the statutory factors in his case, the plaintiff was essentially attacking the Superior Court judgment and, as such, his claim was barred by the Rooker-Feldman doctrine. Id. at 780-81.
The Cooper court also held that the plaintiff's conspiracy claims were barred by the Rooker-Feldman doctrine. The plaintiff in Cooper also alleged that defendants conspired to prevent him from obtaining DNA testing, and that they had also conspired during the underlying murder investigation and at trial. 704 F.3d at 781- 82. In concluding that the federal district court lacked subject matter jurisdiction to consider these claims under the Rooker-Feldman doctrine, the court explained that such claims were "inextricably intertwined" with the Superior Court's order denying his request for DNA testing because the claims "succeed[] only to the extent that the state court wrongly decided the issues before it" and "federal relief can only be predicated upon a conviction that the state court was wrong." Id. at 782-83 (citation omitted).
Similarly, in the SAC, plaintiff challenges the particular outcome in the state court and seeks as a remedy relief from that state court's order. Accordingly, the Rooker-Feldman doctrine bars his claims. Cooper, 704 F.3d at 781. Here, plaintiff requests an order directing Ohta and the Los Angeles County Superior Court to grant the discovery he requested in his motions filed in the Superior Court. (SAC at 35.) Although plaintiff alleges in portions of the SAC that the Superior Court has refused to rule on his discovery motions, the Minute Order from June 22, 2012, of which the Court has taken judicial notice, expressly reflects that plaintiff's discovery motions were ruled upon and denied on June 22, 2012, prior to the filing of the SAC. (Ohta RJN, Exh. 14.) Thus, plaintiff is essentially asking that this Court overturn the state court ruling denying his discovery motions, thereby making this action a de facto appeal of that order, which is precluded under the Rooker-Feldman doctrine. Therefore, under the Rooker-Feldman doctrine, this Court lacks jurisdiction to consider plaintiff's claims that the Superior Court's order denied his federal rights.
The Rooker-Feldman doctrine also bars consideration of plaintiff's allegations that defendants conspired and abused the judicial process in order to deprive him of documentary evidence to support his petition for writ of habeas corpus, as these claims are "inextricably intertwined" with the ruling of the Superior Court on his discovery motions. Again, by attacking the credibility of the recommendations, procedures, and evidence presented in that proceeding, plaintiff's SAC is a de facto appeal whereby he essentially asks this Court to review the merits of, and provide relief from, the Superior Court's ruling. As in Cooper, plaintiff's claims can only succeed to the extent that the state court wrongly decided the issues before it and, thus, plaintiff's claims are effectively "a prohibited appeal of the state-court judgment," barred by the Rooker-Feldman doctrine. Cooper, 704 F.3d at 782-83.
Additionally, plaintiff further appears to allege mail fraud violations, again premised on the allegations of conspiracy to deprive him of documentary evidence. Not only is mail fraud, codified at 18 U.S.C. § 1341, not actionable under 42 U.S.C. § 1983, see Wilcox v. First Interstate Bank of Or., N.A., 815 F.2d 522, 533 n. 1 (9th Cir.1987) (as amended) (Boochever, J., dissenting in part) (recognizing that no private right of action exists under 18 U.S.C. § 1341); Wisdom v. First Midwest Bank, of Poplar Bluff, 167 F.3d 402, 408 (8th Cir. 1999), such claims would also be barred by the Rooker-Feldman doctrine for same reasons set forth above. A review of the allegations of mail fraud show that they, too, are "inextricably intertwined," and therefore barred.
To the extent plaintiff may be purporting to assert a RICO claim based on an alleged conspiracy, such a claim would be similarly barred under the Rooker-Feldman doctrine for the same reasons.
In his Oppositions to the Motions to Dismiss, plaintiff attempts to distinguish his case from those in which the Rooker-Feldman doctrine have been applied. Plaintiff appears to allege, inter alia, that the Rooker-Feldman doctrine is inapplicable in this action because he filed his original Complaint prior to a ruling on his discovery motions. (See, e.g., Opp. Novotney MTD at 3, 21-22.) In support of his contention, plaintiff relies on Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284, 125 S. Ct. 1517, 161 L. Ed. 2d 454 (2005), which held that the Rooker-Feldman doctrine applies in "cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments." In Exxon, however, the Supreme Court focused on the issue of parallel state and federal litigation, explaining that the plaintiff had not "repaired to federal court to undue the Delaware judgment in its favor," but rather, filed suit in federal district court before any judgment "to protect itself in the event it lost in state court on grounds (such as statute of limitations) that might not preclude relief in the federal venue." Id. at 293-94. [T]he pendency of an action in the state court is no bar to proceedings concerning the same matter in the Federal court having jurisdiction." Id. at 292 (citation omitted, emphasis added). Here, there is no such parallel state and federal litigation. To the contrary, plaintiff is specifically seeking relief from the state court's ruling. The fact that plaintiff technically filed the original Complaint prior to complained-of state court ruling is not sufficient to "open the door for a federal district court to review the state court decisions." Marciano v. White, 431 F. App'x 611, 613 (9th Cir. 2011) (rejecting argument that Rooker-Feldman did not apply because the plaintiff filed his federal action before his state court appeals had concluded). "To hold otherwise would run counter to the doctrine's underlying principle that review of state court decisions must proceed through the state appellate procedure and then to the United States Supreme Court." Id. In the present case, plaintiff is essentially seeking to overturn the underlying Superior Court ruling. Thus, plaintiff is directly challenging the state court's proceedings, which is barred under the Rooker-Feldman doctrine.
Cited for its persuasive value pursuant to Ninth Circuit Rule 36-3.
The Court also notes that to the extent plaintiff sought to interfere with the pending state judicial proceeding, it appears that his claims may be barred under the Younger abstention doctrine, providing that, under principles of comity and federalism, a federal court should not interfere with pending state court proceedings absent extraordinary circumstances. See generally Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971); see also Ohio Civil Rights Comm'n v. Dayton Christian Sch., Inc., 477 U.S. 619, 627, 106 S. Ct. 2718, 91 L. Ed. 2d 512 (1986) (holding that Younger applies to civil proceedings in which important state interests are involved).
Accordingly, the Rooker-Feldman doctrine bars subject matter jurisdiction over plaintiff's claims seeking to overturn the underlying state court order, alleging a conspiracy, abuse of process, mail fraud, and a RICO violation as it relates to the Superior Court's decision, and these claims should be dismissed without leave to amend. Cooper, 704 F.3d at 785.
II. Several of the named defendants are immune from suit.
A. Defendant Ohta is entitled to absolute judicial immunity.
Judges are entitled to absolute immunity "from civil liability for damages for their judicial acts." Mullis v. U.S. Bankr. Court for the Dist. of Nev., 828 F.2d 1385, 1388 (9th Cir. 1987). Judicial immunity is an absolute immunity from suit. See Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 86 L. Ed. 2d 411 (1985). Absolute judicial immunity applies not only to suits for damages, but also "to actions for declaratory, injunctive and other equitable relief." Moore v. Brewster, 96 F.3d 1240, 1244 (9th Cir. 1996). Absolute judicial immunity "insulates judges from charges of erroneous acts or irregular action, even when it is alleged that such action was driven by malicious or corrupt motives . . . or when the exercise of judicial authority is flawed by the commission of grave procedural errors." In re Castillo, 297 F.3d 940, 947 (9th Cir. 2002) (as amended) (internal quotation marks and citations omitted); see also Mireles v. Waco, 502 U.S. 9, 11, 112 S. Ct. 286, 116 L. Ed. 2d 9 (1991) (per curiam); Stump v. Sparkman, 435 U.S. 349, 356-57, 98 S. Ct. 1099, 55 L. Ed. 2d 331 (1978). "Judicial immunity applies 'however erroneous the act may have been, and however injurious in its consequences it may have proved to the plaintiff.'" Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986) (en banc) (as amended) (quoting Cleavinger v. Saxner, 474 U.S. 193, 199-200, 106 S. Ct. 496, 88 L. Ed. 2d 507 (1985)).
In 1996, Congress amended 42 U.S.C. § 1983 to explicitly provide that "in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable."
A judge is protected if: (1) He performed a "judicial act" and (2) he did not act in "clear absence of jurisdiction." Moore, 96 F.3d at 1244 (quoting Stump, 435 U.S. at 356-57). An action taken by a judge in excess of his or her authority "cannot be said to have been taken in the absence of jurisdiction." Mireles, 502 U.S. at 13.
Here, the allegations against Ohta are based solely on his performance as a judicial officer in ruling on plaintiff's discovery motions. Plaintiff asserts that Ohta violated his rights while presiding over plaintiff's discovery motions, including by delaying a ruling on such motions. As such, as framed by plaintiff's own allegations, the actions at issue relate only to acts taken in Ohta's capacity as a Superior Court judicial officer and plaintiff has not asserted any factual allegations of conduct by Ohta that do not pertain to functions that are normally performed by a judge and that do not fall within the responsibility of Ohta as a judicial officer. Further, plaintiff's conclusory allegations of conspiracy on the part of Ohta are insufficient to deprive Ohta of absolute judicial immunity. See Moore, 96 F.3d at 1244 ("Nor is judicial immunity lost by allegations that a judge conspired with one party to rule against another party: '[A] conspiracy between judge and [a party] to predetermine the outcome of a judicial proceeding, while clearly improper, nevertheless does not pierce the immunity extended to judges . . . ." (quoting Ashelman, 793 F.2d at 1078) (alterations in original)).
As such, not only are the claims against Ohta barred by the Rooker-Feldman doctrine, Ohta is also entitled to absolute judicial immunity from all of plaintiff's claims against him.
B. Defendants Eng, Dauphine, and Barreras are entitled to absolute quasi-judicial immunity.
Judicial immunity extends to non-judicial officials performing quasi-judicial functions. See Romano v. Bible, 169 F.3d 1182, 1186 (9th Cir. 1999) ("Absolute immunity extends to agency officials when they preside over hearings, initiate agency adjudication, or otherwise perform functions analogous to judges and prosecutors."); see also Demoran v. Witt, 781 F.2d 155, 156 (9th Cir. 1986) (as amended) ("Courts have extended absolute judicial immunity from damage actions under 42 U.S.C. § 1983 not only to judges but also to officers whose functions bear a close association to the judicial process."). "The Supreme Court has recognized that individuals, when performing functions that are judicial in nature, or who have a sufficiently close nexus to the adjudicative process, are entitled to a grant of absolute quasi-judicial immunity." Castillo, 297 F.3d at 948 (citation omitted).
First, with respect to the State Bar defendants, Eng and Dauphine, they are being sued based on their investigation and the subsequent denials of plaintiff's complaints to the California State Bar alleging misconduct by various attorneys involved in the underlying state court discovery matters. The Ninth Circuit has held, however, that State Bar judges and prosecutors are entitled to quasi-judicial immunity in their performance of functions similar to judges and prosecutors in a setting like that of a court. Hirsh v. Justices of the Supreme Court of the State of Cal., 67 F.3d 708, 715 (9th Cir. 1995) (per curiam). Here, as plaintiff's claims against these defendants are based solely on their review and evaluation of plaintiff's disciplinary complaints, these defendants are entitled to quasi-judicial immunity.
Second, although plaintiff, to date, has not served Barreras, a Superior Court clerk, the Court also concludes that this defendant is entitled to quasi-judicial immunity. As long as the challenged activities are an integral part of the judicial process and were not taken in clear absence of all jurisdiction, court clerks enjoy absolute quasi-judicial immunity, regardless of whether the actions were done in error. See Mullis, 828 F.2d at 1390 (9th Cir.1987). As such, quasi-judicial immunity protects clerical administrative functions, including the filing of documents. See id.; see also Castillo, 297 F.3d at 952 (extending quasi-judicial immunity to "court clerks and other non-judicial officers for purely administrative acts - acts which taken out of context would appear ministerial, but when viewed in context are actually a part of the judicial function").
Here, plaintiff's claim against Barreras is premised upon this defendant's preparation of the court order denying plaintiff's discovery motions. (SAC at 34.) Barreras's actions in preparing the order, as well as in filing the same, were an integral part of the judicial process, and plaintiff has not alleged otherwise. As such, Barreras is entitled to quasi-judicial immunity.
Based on the foregoing, Dauphine, Eng, and Barreras are entitled to quasi-judicial immunity from all of plaintiff's claims against them.
C. Defendant Ferreira is entitled to prosecutorial immunity.
The law is well established that prosecutors performing their official prosecutorial functions are entitled to absolute immunity from federal civil rights claims. See, e.g., Van de Kamp v. Goldstein, 555 U.S. 335, 343, 129 S. Ct. 855, 172 L. Ed. 2d 706 (2009); Imbler v. Pachtman, 424 U.S. 409, 427, 96 S. Ct. 984, 47 L. Ed. 2d 128 (1976); Sykes v. State of Cal. (Dep't of Motor Vehicles), 497 F.2d 197, 200 (9th Cir. 1974). This immunity applies even if it "does leave the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty." See Imbler, 424 U.S. at 427. Moreover, the immunity extends to all "acts undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate for the State," see Buckley v. Fitzsimmons, 509 U.S. 259, 273, 113 S. Ct. 2606, 125 L. Ed. 2d 209 (1993), including actions post-trial. Demery v. Kupperman, 735 F.2d 1139, 1144-45 (9th Cir. 1984). In Imbler, the Supreme Court held that prosecutors were immune from claims that they had knowingly used false testimony at trial, had deliberately suppressed exculpatory evidence, and had prosecuted the defendant with knowledge that he had been "cleared" by a lie detector test. See Imbler, 424 U.S. at 416; see also, e.g., Burns v. Reed, 500 U.S. 478, 492, 111 S. Ct. 1934, 114 L. Ed. 2d 547 (1991) (holding that the prosecutor's conduct in appearing in court in support of an application for a search warrant and in presenting evidence at that hearing was protected by absolute immunity); Radcliffe v. Rainbow Constr. Co., 254 F.3d 772, 781-82 (9th Cir. 2001) (holding that prosecutor's conduct in sending plaintiff a letter informing him that he had been charged with trespass and directing him to present himself at the police station for arrest and booking under the threat of a bench warrant was protected by absolute immunity). The Supreme Court also has held that prosecutors are immune even from "administrative" failures if they are directly connected with the conduct of a trial, including supervision and training on impeachment-related information and the creation of information management systems relating to such evidence. See Van de Kamp, 555 U.S. at 344. Even charges of malicious prosecution, use of perjured testimony, and concealment of exculpatory evidence will be dismissed on grounds of prosecutorial immunity. See Stevens v. Rifkin, 608 F. Supp. 710, 728 (N.D. Cal. 1984). Nor does it make any difference if the plaintiff is alleging that the prosecutors were engaged in a conspiracy to violate his civil rights. See Ashelman, 793 F.2d at 1078.
Here, all of the allegations against Ferreira appear to be based on his conduct as a state prosecutor opposing plaintiff's motions for post-trial discovery. The SAC alleges that Ferreira, in his capacity as a deputy district attorney, violated plaintiff's civil rights by claiming that he lost plaintiff's case files and withheld relevant evidence, in an attempt to cover-up for the fact that the District Attorney's Office and the Public Defender's Office had colluded to suppress evidence during plaintiff's underlying criminal trial. (SAC at 27-28.) Plaintiff further alleges that Ferreira's participation in the hearing on the discovery motions was contrived and pretextual, done in response to plaintiff having notifying Novotney he intended to file a civil rights action. (SAC at 34.) Accordingly, plaintiff's claims solely relate to Ferreira's conduct while acting in a prosecutorial capacity and advocating for the State post-trial. As such, plaintiff's claims against Ferreira are barred under the doctrine of prosecutorial immunity and should be dismissed without leave to amend. See Demery, 735 F.2d at 1144-45.
The Court finds that plaintiff's reliance on Goldstein v. City of Long Beach, 715 F.3d 750 (9th Cir. 2013) is misplaced. Unlike the instant case, the allegations in Goldstein related to the district attorney's role as a administrative policymaker in adopting and implementing internal policies and procedures related to the use of jailhouse informants. Here, as explained, plaintiff's allegations against Ferreira relate to his role as a deputy district attorney acting on behalf of the State in opposing plaintiff's discovery motions.
III. The remaining allegations of the SAC are insufficient to state a federal civil rights claim against any of the named defendants.
Plaintiff's SAC contains some allegations against the prison official defendants Epperson, Marin, and Hernandez that potentially do not fall within the confines of the Rooker-Feldman doctrine as they appear to be based on conduct independent of the Superior Court's ruling. However, as explained below, as currently pled, the allegations of the SAC are insufficient to state a federal civil rights claim against these defendants.
Plaintiff alleges that on February 16, 2011, Hernandez and Marin appeared at plaintiff's cell claiming to be conducting a random cell search, and allegedly without provocation, beat plaintiff, and planted an inmate-manufactured weapon on plaintiff for the sole purpose of causing him to be incarcerated in segregated housing in order to confiscate all of his legal documents. (SAC at 13.) Plaintiff alleges that Epperson stated: "Those judges are going to make sure you die in prison," which plaintiff contends was in reference to his discovery proceedings. (Id.) Thereafter, after being released from segregated housing on the allegedly fabricated weapons possession charge on November 19, 2011, plaintiff was informed by the same prison officials that he was being placed back in segregated housing, "under the false pretense of investigating [p]laintiff's claim that that [sic] weapon had been planted on him[.]" (SAC at 16-17.) Plaintiff alleges that the prison officials then extracted him from his cell using harsh chemical agents, even though he had been found not guilty of the rules violation report, and placed him back in segregated housing. (SAC at 17.) As a result of the foregoing conduct, plaintiff purports to be raising a claim against Marin, Epperson, and Hernandez under the Hobbs Act, 18 U.S.C. § 1951. (SAC at 32-33.) He seeks injunctive relief only.
As an initial matter, plaintiff cannot raise a § 1983 claim based on the Hobbs Act, 18 U.S.C. § 1951. In order to seek redress under § 1983, a plaintiff must assert the violation of a federal right, not merely a violation of federal law. Blessing v. Freestone, 520 U.S. 329, 340, 117 S. Ct. 1353, 137 L. Ed. 2d 569 (1997). No private cause of action exists for 18 U.S.C. § 1951.
In evaluating whether a statute creates a private right of action, the Court's focus is on whether Congress intended to create such a right. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 377-378, 102 S. Ct. 1825, 72 L. Ed. 2d 182 (1982). Where a "statute by its terms grants no private rights to any identifiable class," Touche Ross & Co. v.. Redington, 442 U.S. 560, 576, 99 S. Ct. 2479, 61 L. Ed. 2d 82 (1979), it is not proper for the Court to imply such a right. The Hobbs Act is just such a criminal statute, containing no language suggesting it can provide a civil cause of action. Moreover, no court that has considered the issue has determined that the legislative history of the statute indicates that Congress intended to create a private cause of action. See Stanard v. Nygren, 658 F.3d 792, 794 (7th Cir. 2011) (noting that the Hobbs Act does not provide a private right of action); Wisdom, 167 F.3d at 408-409; WSB Elec. Co., Inc. v. Rank & File Comm. to Stop the 2-Gate Sys., 103 F.R.D. 417, 419 (N.D. Cal. 1984). Accordingly, plaintiff's claim under the Hobbs Act must be dismissed.
However, based on the allegations of the SAC, it appears that plaintiff may also be attempting raise a claim for retaliation and therefore, the Court shall also address plaintiff's claim against the prison officials as such.
It is well settled that an action taken in retaliation for the exercise of a First Amendment right is actionable under § 1983. See Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009); Hines v. Gomez, 108 F.3d 265, 267 (9th Cir. 1997); Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995). This includes the right to petition the government for redress of grievances. See Soranno's Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989); see also Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012); Brodheim, 584 F.3d at 1269 ("It is well-established that, among the rights they retain, prisoners have a First Amendment right to file prison grievances."); Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2005) (as amended) ("Of fundamental import to prisoners are their First Amendment rights to file prison grievances." (citation omitted)). To state a viable claim for retaliation in violation of the First Amendment in the prison context, a plaintiff must show five basic elements: "(1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal." Brodheim, 584 F.3d at 1269 (quoting Rhodes, 408 F.3d at 567-68); see also Watison, 668 F.3d at 1114.
Additionally, "[t]he right of access to the courts is subsumed under the first amendment right to petition the government for redress of grievances" and "[d]eliberate retaliation by state actors against an individual's exercise of this right is actionable under section 1983." Soranno's Gasco, 874 F.2d at 1314.
To satisfy the causation element, plaintiff must show that his constitutionally-protected conduct was a "substantial" or "motivating" factor for the alleged retaliatory action. See Brodheim, 584 F.3d at 1271. Moreover, the plaintiff bears the burden of pleading and proving the absence of legitimate correctional goals for the conduct of which he complains. See Pratt, 65 F.3d at 806. A plaintiff may do so "by alleging, in addition to a retaliatory motive, that the defendant's actions were arbitrary and capricious . . . or that they were 'unnecessary to the maintenance of order in the institution.'" Watison, 668 F.3d at 1114-15 (citations omitted).
Here, plaintiff vaguely contends that the prison officials conducted a random cell search, beat plaintiff, planted a weapon on him, placed him in segregated housing, and confiscated his legal materials "to prevent [him] from continuing on in the discovery process before the Los Angeles Superior Court[.]" (SAC at 13, 16-17, 32-33.) These vague and conclusory allegations, however, do not raise an inference that any constitutionally protected conduct was the motivating factor for any specific retaliatory action. Other than conclusory assertions, without any causal link, plaintiff has not alleged specific facts supporting a claim that any of the prison official defendants retaliated against him for filing his discovery motions with the Superior Court. Indeed, as plaintiff appears to concede, he was ultimately found not guilty of the weapons charge.
Accordingly, even considering the allegations of the SAC as true, and construing them in the light most favorable to plaintiff, the Court concludes that the allegations of the SAC are insufficient to state a retaliation claim against the named prison official defendants.
Although the Court is extremely dubious that plaintiff will be able to cure the deficiencies of the SAC regarding this claim, because plaintiff is proceeding pro se, the Court will afford plaintiff one more opportunity to cure the deficiencies of his claim against Marin, Epperson, and Hernandez. See Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir 1995) (per curiam) ("Unless it is absolutely clear that no amendment can cure the defect . . . a pro se litigant is entitled to notice of the complaint's deficiencies and an opportunity to amend prior to dismissal of the action."). IV. Plaintiff's service on defendants Gordon, Barreras, and Rodarte.
Although plaintiff asserts that he is not raising an Eighth Amendment claim or due process claim based on the false weapons charge, his placement in segregated housing, and/or his alleged assault by the prison official defendants (Opp. Prison Officials MTD at 29-32), the Court briefly addresses these potential claims in an abundance of caution. First, placement in segregated housing in and of itself generally does not implicate a protected liberty interest, Serrano v. Francis, 345 F.3d 1071, 1078 (9th Cir. 2003), or constitute a violation of the Eighth Amendment. See Toussaint v. Yockey, 722 F.2d 1490, 1494 n.6 (9th Cir. 1984) ("[A]n indeterminate sentence to punitive isolation does not without more constitute cruel and unusual punishment."). Although the circumstances of a particular case may implicate due process if the confinement imposes an atypical and significant hardship, see, e.g., Wilkinson v. Austin, 545 U.S. 209, 222-24, 125 S. Ct. 2384, 162 L. Ed. 2d 174 (2005), this is not such a case. As currently pled, plaintiff has not alleged any particular hardship associated with his placement in segregated housing, let alone demonstrated that the conditions he experienced in segregation constituted a dramatic departure from those typically encountered by similar prisoners in segregation or that he was deprived of any basic human needs while in segregation. Further, to the extent that plaintiff alleges that his placement in segregated housing resulted from a falsified disciplinary report, such an allegation is insufficient to state a due process claim. A prisoner does not have a constitutional right to be free from falsified disciplinary reports. See Hines, 108 F.3d at 268-69; Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989); Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir. 1986); Williams v. Foote, Case No. 08-2838-CJC (JTL), 2009 WL 1520029, at *7 (C.D. Cal. May 28, 2009).
Finally, with respect to an excessive force claim, the "core judicial inquiry" is "whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Wilkins v. Gaddy, 559 U.S. 34, 37, 130 S. Ct. 1175, 175 L. Ed. 2d 995 (2010) (per curiam) (citation omitted). Here, however, plaintiff's bare allegation that he was beaten, without any additional supporting facts, is not sufficient to state an excessive force claim. Accordingly, the Court concludes that plaintiff has not sufficiently alleged any other claims for relief against any of the named prison official defendants. Iqbal, 556 U.S. at 678.
As explained in the Court's June 18, 2013 Order, the Court has granted plaintiff's request for limited discovery to obtain further information regarding the identity of defendant Hernandez for purposes of service.
Finally, the Court addresses the service issues relating to Gordon, Barreras, and Rodarte.
A. Motion to Quash filed by the Estate of Gigi Gordon should be granted.
As noted, the SAC named Gordon as a defendant. Gordon died in January 2012, a few months before this action was filed. (Declaration of Marcy Gordon filed in support of Motion to Quash, at ¶2.) As such, because Gordon was already deceased at the time plaintiff filed this action in April 2012, plaintiff should have followed the procedures for suing Gordon's estate rather than attempting to sue and serve Gordon. Plaintiff has not named Gordon's estate as a defendant, attempted to serve Gordon's representative or successor-in-interest, nor has he shown good cause for failing to do so. Accordingly, the Court grants the Estate of Gigi Gordon's Motion to Quash, and dismisses Gordon from the action with prejudice. Further, since his claims against Gordon are barred by the Rooker-Feldman doctrine, leave to amend the SAC in order to name the Estate of Gigi Gordon would be futile.
It also appears that Fed. R. Civ. P. 25(a) is inapplicable and untimely in any case. Under Rule 25(a), if a party dies and the claim is not extinguished, the court may order the substitution of the proper party. A motion for substitution may be made by any party or by the decedent's successor or representative within 90 days after service of a statement noting the death. If the motion is not made within the 90 days, the action against the decedent must be dismissed. However, substitution under Rule 25 is not available when the death precedes the filing of the action. Mizukami v. Buras, 419 F.2d 1319, 1320 (5th Cir. 1969) (per curiam); Charles Alan Wright et al., Federal Rules of Civl Procedure § 1951 (2013).
B. The Court declines to extend the service deadline as to defendants Barreras and Rodarte only.
Pursuant to Fed. R. Civ. P. 4(m), service of the summons and complaint had to be accomplished on each named defendant within 120 days after the filing of the complaint. In this matter, plaintiff initially named Barreras and Rodarte as defendants in his SAC filed on October 12, 2012. As such, the 120-day period expired on February 9, 2013.
On October 18, 2012, the Court issued an Order Directing Service of Process by the United States Marshal of the SAC on nine defendants, including Barreras and Rodarte. In the Order Re: Service of Second Amended Complaint also filed on October 18, 2012, plaintiff was advised that no later than 30 days from the date of that Order, he shall file a Notice of Submission indicating that all required documents were submitted to the U.S. Marshal for service of the SAC and that failure to do so, could result in the dismissal of the action without prejudice. On November 19, 2012, plaintiff requested an extension of time because he had been unable to make the required number of copies and requested an order directing prison officials to permit plaintiff to access to a properly functioning copy machine. On November 29, 2012, the Court granted plaintiff an extension of time to comply with the Court's Order, extending the deadline to December 19, 2012, and otherwise denied plaintiff's request for an order directing prison officials to permit plaintiff access to a properly functioning copy machine. On December 14, 2012, plaintiff filed a Notice of Submission of Document to the U.S. Marshal indicating that he sent 9 copies of the summons, USM-285 form, and the SAC to the U.S. Marshal's Service on December 10, 2012.
The Court notes that this Request did not mention service on Rodarte.
To date, the U.S. Marshal has not returned the summons for either Barreras or Rodarte, nor has the Court received the Process Receipt and Return for either defendant. Plaintiff has never filed any proof of service of the SAC on these defendants, or purported to show good cause for his failure to timely serve these defendants. Plaintiff's pro se status does not excuse his failure to timely serve defendants. See Hon. William W. Schwarzer et al., Federal Civil Procedure Before Trial § 5:298.1 (2013).
In Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988) (per curiam), the Ninth Circuit cited the following factors as relevant to the Court's determination of whether to dismiss an action for failure to prosecute: "(1) [T]he public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits and (5) the availability of less drastic sanctions." The SAC in this matter was filed on October 12, 2012 and the initial 120-day period for service expired on February 9, 2013. Plaintiff's time to provide the service package to the U.S. Marshal was extended to December 19, 2012. Liberally construing the 120-day period from December 19, 2012, service of the summons and the SAC had to be accomplished by April 18, 2013. However, to date, service still has not been effectuated. Here, then, the first and second Carey factors clearly militate in favor of dismissal of the unserved defendants.
However, a party proceeding in forma pauperis is entitled to have the summons and complaint served by the U.S. Marshal. See Fed. R. Civ. P. 4(c)(3). 28 U.S.C. § 1915(d) also provides that in cases in which a court authorizes a plaintiff to proceed in forma pauperis "[t]he officers of the court shall issue and serve all process[.]" Therefore, "an incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of the summons and complaint, and, having provided the necessary information to help effectuate service, plaintiff should not be penalized by having his or her action dismissed for failure to effect service where the U.S. Marshal or the court clerk has failed to perform the duties required of each of them . . . ." Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990) (as amended).
Here, plaintiff is an incarcerated pro se plaintiff, who is proceeding in forma pauperis. Thus, after providing the necessary information and forms to the U.S. Marshals, he was entitled to rely on the U.S. Marshals Service to effectuate service. As such, it appears that the untimely service of these defendants may be based on circumstances outside of plaintiff's control. As explained, plaintiff submitted a Notice of Submission on December 14, 2012, indicating that he provided nine summons packages to the U.S. Marshal. Although it does not appear that plaintiff resubmitted the summons packages for these defendants or has otherwise inquired regarding the status of service on these defendants, given the early stages of this litigation, the Court finds that the fourth and fifth factors do not militate in favor of dismissal.
Thus, the service issue turns on the third factor. In the present circumstances, the Court concludes that the third factor, the risk of prejudice to the defendant, militates in favor of dismissal. As explained above, plaintiff's only claim against Barreras is barred by the Rooker-Feldman doctrine and/or quasi-judicial immunity, and as such, the Court recommends the dismissal of his claim against this defendant without leave to amend. Similarly, plaintiff's sole claim against Barreras is barred under the Rooker-Feldman doctrine. Therefore, it is unnecessary to provide additional time to serve either defendant with the SAC.
Accordingly, in light of the foregoing, and in consideration of the Carey factors, the Court concludes that there is no good cause for extending the service deadline as to Barreras and Rodarte.
Because the Court is recommending the dismissal of plaintiff's SAC, the Court need not address defendants' remaining contentions in their motions to dismiss at this time.
RECOMMENDATION
IT IS THEREFORE RECOMMENDED that the District Court issue an Order: (1) Approving and accepting this Report and Recommendation; (2) granting the Ohta MTD, the State Bar MTD, the Prison Officials MTD, the Attorney MTD, the Novotney MTD, the Gonzales MTD, and the Rios/Colon MTD; (3) granting the Estate of Gigi Gordon's Motion to Quash; (4) dismissing plaintiff's federal civil rights claims alleged against Ohta, Ferreira, Dauphine, Eng, Barreras, Lilienfield, Judge, Rios, Colon, Sherman, Novotney, Gonzales, Rodarte and Gordon without leave to amend; (5) dismissing plaintiff's federal civil rights claims not challenging the underlying Superior Court discovery order, including those based on an alleged conspiracy, against Epperson, Marin, and Hernandez with leave to amend; and (6) ordering plaintiff, if he still desires to pursue this action, to file a Third Amended Complaint remedying the deficiencies discussed above within thirty (30) days of the date of the District Court's Order approving and accepting this Report and Recommendation.
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THE HONORABLE DAVID T. BRISTOW
UNITED STATES MAGISTRATE JUDGE
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file Objections as provided in the Local Rules and review by the District Judge whose initials appear in the docket number. No Notice of Appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the Judgment of the District Court.