Opinion
CV 23-2268-SSS(E)
07-31-2024
HAROLD PHILLIPS, Plaintiff, v. CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, ET AL., Defendants.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable Sunshine Suzanne Sykes, United States District Judge, pursuant to 28 U.S.C, section 636 and General Order 05-07 of the United States District Court for the Central District of California.
BACKGROUND
On March 28, 2023, Plaintiff, who is not in forma pauperis, filed this pro se civil rights action pursuant to 42 U.S.C, section 1983. The caption of the Complaint listed as the purported Defendants: “California Department of Corrections & Rehabilitation, the California Board of Prison Terms, Board of Parole Hearings and Governor's Review.”
On June 27, 2023, the Court issued an Order to Show Cause because Plaintiff had not effected service of the Summons and Complaint within 90 days after filing the Complaint. On July 11, 2023, Plaintiff filed a response to the Order to Show Cause. On July 12, 2023, the Court extended the time to effect service by sixty days.
On September 11, 2023, Plaintiff filed a document entitled “Respond to Order Extending Time for Service,” which appeared to assert that Plaintiff had served the Summons and Complaint on the California Department of Corrections and Rehabilitation (“CDCR”) and the Board of Parole Hearings (“BPH”) via certified mail. On September 13, 2023, the Court issued an order advising Plaintiff that service via certified mail was improper and granting Plaintiff an additional forty-five days to effect proper service.
On October 24, 2023, Plaintiff filed a document entitled “In Respond to Order Extending Time,” requesting additional time to effect service of the Summons and Complaint. On October 25, 2023, the Court issued an order granting Plaintiff until November 27, 2023, to effect proper service.
On November 17, 2023, Plaintiff filed proofs of service of the Summons and Complaint on CDCR (Doc, 15) and BPH (Doc, 16. 18, 19). On November 20, 2023, CDCR filed an “Ex Parte Application for Extension of Time to File Responsive Pleading.” The Court granted the application and ordered CDCR to file a responsive pleading by January 28, 2024. On December 6, 2023, BPH filed an “Ex Parte Application for Extension of Time to File Responsive Pleading.” The Court granted the application and also ordered BPH to file a responsive pleading by January 28, 2024.
Petitioner also filed proofs of service of the Summons and Complaint on “Jeff Macomber Secretary” (Doc, 17) and “Attorney General,” neither of whom are Defendants (Doc, 20).
On January 29, 2024, CDCR and BPH (collectively “Defendants”) filed a “Motion to Dismiss, etc.” (“Motion to Dismiss Complaint”). On February 14, 2024, Plaintiff filed documents entitled “Responding to the Judge Order to File Opposition to the Defendant Motion to Dismiss” and “Motion for Default; Default Judgment” (“Motion for Default”).
CCDCR and BPH are the only named Defendants who have appeared or can appear in this action (see February 20, 2024 Report and Recommendation of United States Magistrate Judge (“Report and Recommendation”), p.3 n.2).
On February 20, 2024, the Magistrate Judge issued a Report and Recommendation recommending, inter alia, that the Motion for Default be denied and the Complaint be dismissed with leave to amend. On March 20, 2024, the District Judge issued an “Order Accepting Findings, Conclusions and Recommendations of United States Magistrate Judge,” accepting and adopting the February 20, 2024 Report and Recommendation.
On April 15, 2024, Plaintiff filed a First Amended Complaint. On May 2, 2024, Defendants filed a “Motion to Dismiss First Amended Complaint,” along with a “Request for Judicial Notice, etc.” On May 30, 2024, Plaintiff filed a document entitled, “Responding to May 2, 2024, Order, etc.,” which constitutes Plaintiffs response to Defendants' motion.
SUMMARY OF PLAINTIFF'S ALLEGATIONS
I. Original Complaint
Although difficult to decipher, the Complaint appeared to allege that Defendants failed to release Plaintiff from incarceration for 28 years after the purported expiration of Plaintiff s sentence (Complaint, p. 2). Plaintiff attached to the Complaint a BPH “Term Calculation” apparently provided to Plaintiff in 2017 when he first was found suitable for parole (id., p. 6). This “Term Calculation” reflected a “Prison Term Total” of 112 months and a “Minimum Eligible Parole Date” of April 13, 1996 (id., p. 6). Plaintiff appeared to assert that he “was only supposed to serve 112 months” in prison and he thus was incarcerated beyond his “maximum period of confinement” (see id., pp. 2-4). Plaintiff sought $150 million in damages (id., p. 5).
The Complaint, First Amended Complaint and attachments thereto do not bear consecutive page numbers. The Court uses the ECF pagination when referring to the Complaint, First Amended Complaint or the attachments thereto.
II. First Amended Complaint
The First Amended Complaint is virtually identical to the original Complaint, except that Plaintiff attaches four additional exhibits: (1) what appears to be another term calculation form; (2) a document entitled “Release Program Study”; (3) a printout of the Wikipedia page for CDCR; and (4) a letter from Defendants' counsel regarding this action.
DISCUSSION
I. Standards Governing Motions to Dismiss
To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S, 662, 678 (2009) (citation and internal quotations omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The Court ordinarily must construe a pro se litigant's pleading liberally and hold a pro se plaintiff “to less stringent standards than formal pleadings drafted by lawyers.” See Erickson v. Pardus, 551 U.S, 89, 94 (2007) (citation omitted).
The Court must accept as true all non-conclusory factual allegations contained in the complaint and must construe the complaint in the light most favorable to the plaintiff. Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 989 (9th Cir. 2009). “Generally, a court may not consider material beyond the complaint in ruling on a Fed, R, Civ, P, 12(b)(6) motion.” Intri-Plex Techs., Inc. v. Crest Group, Inc., 499 F.3d 1048,1052 (9th Cir. 2007) (citation and footnote omitted). The Court may consider “only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice.” Akhtar v. Mesa, 698 F.3d 1202,1212 (9th Cir. 2012) (citation omitted); Schneider v. Cal. Dep't of Corr., 151 F.3d 1194, 1197 n.l (9th Cir. 1988) (“In determining the propriety of a Rule 12(b)(6) dismissal, a court may not look beyond the complaint to a plaintiffs moving papers, such as a memorandum in opposition to a defendant's motion to dismiss.”) (citations omitted; emphasis in original).
The Court may not dismiss a complaint without leave to amend unless “it is absolutely clear that the deficiencies of the complaint could not be cured by amendment.” Akhtar v. Mesa, 698 F.3d at 1212 (citation omitted); see also Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc) (district court should grant leave to amend “unless it determines that the pleading could not possibly be cured by the allegation of other facts”) (citation and internal quotations omitted).
II. Defendants' Request for Judicial Notice is Granted.
Defendants seek judicial notice of the same documents of which the Court previously took judicial notice in connection with the Motion to Dismiss the Complaint: (1) the transcript of Plaintiff s sentencing in People v. Phillips, Los Angeles Superior Court case number A195677; (2) transcripts of Plaintiff s ten parole suitability hearings; and (3) the order denying Plaintiffs state court habeas petition in In re Harold Phillips, Los Angeles Superior Court case number BH010936; and (4) the Stipulation and Order Regarding Settlement in Alameda County Case No. 91694B (see Request for Judicial Notice, ¶¶ 1-4). The Court again grants Defendants' Request for Judicial Notice. See Porter v. Ollison, 620 F.3d 952, 954-55 n.l (9th Cir. 2010) (taking judicial notice of state court dockets and documents filed in state court proceedings); Fed.R.Evid. 201 .
III. The First Amended Complaint Fails to Comply With Rule 8.
As the Court previously advised Plaintiff:
Under Rule 8(a) of the Federal Rules of Civil Procedure, a pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” “Each allegation must be simple, concise, and direct.” Fed. R. Civ. P. 8(d)(1). “Experience teaches that, unless cases are pled clearly and precisely, issues are not joined, discovery is not controlled, the trial court's docket becomes unmanageable, the litigants suffer, and society loses confidence in the court's ability to administer justice.” Bautista v. Los Angeles Cty., 216 F.3d 837. 841 (9th Cir. 2000) (citations and quotations omitted); see Ashcroft v. Iqbal, 556 U.S, at 686 (a plaintiff must allege more than an “unadorned, the-defendant-unlawfully-harmed me accusation”; a pleading that “offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do”) (citations and quotations omitted).(Report and Recommendation, pp. 6-7).
Plaintiff has failed to heed the Court's previous advisement regarding the deficiencies of the Complaint and has filed a First Amended Complaint that is essentially identical to the original Complaint. The First Amended Complaint, which continues to be fraught with legal argument and legal briefing, plainly fails to comply with Rule 8. See Osby v. Park Pictures, LLC, 2017 WL 374902, at *5 (C.D. Cal. Jan. 25, 2017) (“Legal argument, case citations and refutation of arguments that are anticipated are not necessary or appropriate in a pleading.”) (citation and internal quotations omitted); Greenspan v. Admin. Office of the United States Courts, 2014 WL 6847460, at *5 n.10 (N.D. Cal. Dec. 4, 2014) (“Legal argument in a complaint is not appropriate under federal pleading rules.”); Harris v. Kim, 2009 WL 691975, at *3 (C.D. Cal. Mar. 16, 2009) (legal argument and references to legal authorities in a complaint are inappropriate). Once again, Plaintiff provides no coherent chronology of the alleged events, no clear statement of Plaintiff s legal claim(s) for relief and no understandable allegations of facts supporting each claim. Plaintiffs vague and conclusory allegations of alleged wrongdoing do not suffice. See Ashcroft v. Iqbal, 556 U.S. at 678, 686 (conclusory allegations are insufficient). Thus, the First Amended Complaint is subject to dismissal for failure to comply with Rule 8. See id.; Patterson v. Old Republic Title Co., 2012 WL 2450710, at *2 (E.D. Cal. June 26, 2012) (dismissing complaint that was “disorganized to the point of confusion” and failed to “contain a coherent... factual narrative” or a short and plain statement of facts supporting each claim).
IV. The Eleventh Amendment Bars Plaintiffs Claims.
As the Court previously advised Plaintiff:
“[I]n the absence of consent a suit in which the State or one of its agencies or departments is named as the defendant is proscribed by the Eleventh Amendment.” Pennhurst State Sch. & Hosp, v. Halderman, 465 U.S, 89, 100 (1984). Eleventh Amendment immunity
from suit extends to state law claims asserted in federal court. See id. at 121. CDCR and BPH are state agencies to which Eleventh Amendment immunity applies. See Navarro v. Cal., 459 Fed, App'x 676, 677 (9th Cir. 2011) (claims against parole board barred by the Eleventh Amendment); Brown v. Cal. Dep't of Corr. & Rehab., 554 F.3d 747, 752 (9th Cir. 2009) (CDCR and parole board are entitled to Eleventh Amendment immunity). “The State of California has not waived its Eleventh Amendment immunity with respect to claims brought under § 1983 in federal court,... and the Supreme Court has held that § 1983 was not intended to abrogate a State's Eleventh Amendment immunity.” Dittman v. Cal., 191 F.3d 1020, 1025-26 (9th Cir. 1999), cert, denied, 530 U.S, 1261 (2000) (citations and quotations omitted).(Report and Recommendation, p. 8). Thus, the Eleventh Amendment bars all of Plaintiffs claims against Defendants.
V. The First Amended Complaint Fails to State an Eighth Amendment Claim.
It appears that the First Amended Complaint may attempt to assert an Eighth Amendment claim based on Defendants' alleged failure to release Plaintiff from prison when his sentence supposedly terminated (First Amended Complaint, pp. 34). The Court previously advised Plaintiff of the legal standards applicable to such an Eighth Amendment claim:
“Detention beyond the termination of a sentence could constitute cruel and unusual punishment [under the Eighth Amendment] if it is the result of ‘deliberate indifference' to the prisoner's liberty interest....” Haygood v. Younger, 769 F,2d 1350, 1354 (9th Cir. 1985) (en banc), cert denied, 478 U.S, 1020 (1986). In order to establish an Eighth Amendment violation based on unjustified detention, a plaintiff must allege facts plausibly demonstrating: “‘(1) a prison official had knowledge of the prisoner's problem and thus of the risk that unwarranted punishment was being, or would be, inflicted; (2) the official either failed to act or took only ineffectual action under the circumstances, indicating that his response to the problem was a product of deliberate indifference to the prisoner's plight; and (3) a causal connection between the official's response to the problem and the unjustified detention.'” Bratton v. Cty. of Riverside, 2019 WL 506109, at *4 (C.D. Cal. Jan. 7, 2019), adopted, 2019 WL 498793 (C.D. Cal. Feb. 8, 2019) (quoting Montanez v. Thompson, 603 F.3d 243, 252 (3d Cir. 2010)).(Report and Recommendation, p. 9).
Like the Complaint, the First Amended Complaint contains no factual allegations plausibly demonstrating an Eighth Amendment violation; conclusory allegations do not suffice. See Ashcroft v. Iqbal, 556 U.S. at 678. Furthermore, the facts alleged in the First Amended Complaint, together with facts of which the Court may take judicial notice, demonstrate that Plaintiff did not suffer any unjustified detention. As the Court previously explained:
In 1980, Plaintiff received a sentence that included a determinate sentence of 15 years and 8 months, plus a consecutive term of life with the possibility of parole (Request for Judicial Notice, ¶ 1, Exh. 1, pp. 11-17; Phillips v. Davis, 2017 WL 1278741, at *1 (N.D. Cal. Apr. 6, 2017)). As the Superior Court explained in its order denying habeas relief: “The maximum sentence to which [Plaintiff] is subject shall always be the term to which he was originally sentenced - life. Unless or until he is found suitable for parole, he remains legally confined regardless of his base term calculation” (Request for Judicial Notice, ¶ 3, Exh. 12, p. 2). The “Term Calculation” itself states that the “base term and adjusted base term will not affect [Plaintiffs] release date” (Complaint, p. 6). The “Prison Term Total” of 112 months, on which Plaintiff may attempt to predicate his claim herein, appears merely to have been a calculation resulting from the application of various credits to the “adjusted base term” (id.). As indicated by the Superior Court, and by the “Term Calculation” itself, under state law these calculations do not define the maximum possible duration of Plaintiff s incarceration under his sentence. Rather, the maximum possible duration of Plaintiff s incarceration under his sentence remained “life.”(Report and Recommendation, pp. 9-10). Thus, Plaintiff again has failed to allege facts plausibly demonstrating that he was unjustifiably detained beyond the termination of his sentence.
CONCLUSION
The Court previously cautioned Plaintiff that failure to file a First Amended Complaint which stated a cognizable claim for relief could result in the dismissal of this action. Despite this caution, the First Amended Complaint again fails to state a cognizable claim. Although the Court previously advised Plaintiff regarding the requirements of Rule 8 of the Federal Rules of Civil Procedure, the pertinent issues regarding Eleventh Amendment immunity and the necessary elements of an Eighth Amendment claim, and although the Court previously afforded Plaintiff an opportunity to amend to attempt to state a cognizable claim for relief, Plaintiff has proven unwilling or unable to do so. In these circumstances, granting further leave to amend would be an idle act. See Simon v. Value Behav. Health, Inc., 208 F.3d 1073, 1084 (9th Cir.), amended, 234 F.3d 428 (9th Cir. 2000), cert, denied, 531 U.S. 1104 (2001), overruled on other grounds, Odom v. Microsoft Corp., 486 F.3d 541 (9th Cir.), cert, denied, 552 U.S, 985 (2007) (affirming dismissal without leave to amend where plaintiff failed to correct deficiencies in complaint, where court had afforded plaintiff opportunities to do so, and where court had given plaintiff notice of the substantive problems with his claims); Plumeau v. Sch. Dist. #40, County of Yamhill, 130 F.3d 432, 439 (9th Cir. 1997) (denial of leave to amend appropriate where further amendment would be futile). Accordingly, the Court should dismiss the First Amended Complaint and the action without leave to amend and with prejudice.
In light of this recommendation, the Court need not and does not reach the merits of the other contentions made in the Motion to Dismiss First Amended Complaint.
RECOMMENDATION
For the reasons discussed above, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; (2) granting Defendants' Motion to Dismiss the First Amended Complaint; and (3) dismissing the First Amended Complaint and the action without leave to amend and with prejudice.