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Warren v. Kolender

March 12, 2007

ANDREW WARREN, PLAINTIFF,
v.
WILLIAM B. KOLENDER, SHERIFF; CAPT. DENNIS RUNYEN, CHIEF, SAN DIEGO COUNTY DETENTION SERVICES; CAPT. CAMPBELL (CJ); LT. SCOTT (CJ); LT. ELIVEN (CJ); SGT. P. LACHAPPELL (CJ); SGT. LEWIS (CJ); SGT. GLOVER, CLASSIFICAION; DEP. MCCRACKEN (CJ); CAPT. J. INGRASSIA (GBDF); LT. EVENS (GBDF); SGT. BREWER (GBDF); SGT. COYNE (CGDF); CORP. DICKERSON (GBDF); DEP. BARRERA (GBDF); DEP. SOBJAW (GBDF); DEP. BORDEN (GBDF); LT. WILLIAM KEMERY (IAD); SAN DIEGO COUNTY BOARD OF SUPERVISORS, JOHN/JANE DOES 20-50, DEFENDANTS.



The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION [Dkt. Nos. 16 and 41]

On November 9, 2005, Plaintiff, proceeding in pro per and in forma pauperis, first filed his complaint in this matter. On March 21, 2006, Plaintiff filed his amended complaint ("FAC"), which is the operative complaint. Plaintiff is a sexually violent predator currently in custody at Coalinga State Hospital. He brought his complaint under 42 U.S.C. § 1983, alleging as a civil detainee, he was improperly housed in the San Diego County Jail under conditions that were penal in nature, in violation of his due process rights.

On July 25, 2006, Defendant San Diego County Board of Supervisors (the "Board") filed a motion to dismiss Plaintiff's claims against it (the "Motion"). Plaintiff opposed the Motion, and Defendant Board filed its reply. This motion was referred to Magistrate Judge Nita Stormes for report and recommendation.

On September 14, 2006, Judge Stormes issued her report and recommendation (the "R&R"), recommending that the FAC be dismissed with leave to amend. Plaintiff filed several objections to the R&R, to which Defendant Board replied.

Plaintiff also filed a request for status update on January 11, 2007, requesting in particular a copy of the docket sheet in this action.

I. Legal Standards

The district court has jurisdiction to review the magistrate judge's report and recommendation concerning a dispositive pretrial motion. Fed. R. Civ. P. 72(b). "The district judge to whom the case is assigned shall make a de novo determination upon the record, or after additional evidence, of any portion of the magistrate judge's disposition to which specific written objection has been made in accordance with this rule." Id.; see also 28 U.S.C. § 636(b)(1)(C). "A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). Thus, the district court judge reviews those parts of the report and recommendation to which a party has filed a written objection. United States v. Reyna-Tapia, 238 F.3d 1114, 1121 (9th Cir. 2003) (en banc).

Allegations asserted by pro se petitioners, "however inartfully pleaded," are held "to less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972). Thus, where a plaintiff appears in pro per in a civil rights case, the court must construe the pleadings liberally and afford plaintiff any benefit of the doubt. See Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988). Although the Court must construe the pleadings liberally, "[p]ro se litigants must follow the same rules of procedure that govern other litigants." King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Furthermore, the Court will not assume that Plaintiff can prove facts he has not alleged, or that Defendant has violated his rights in ways that have not been alleged. See Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).

A complaint, or portion thereof, should only be dismissed under Rule 12(b)(6) for failure to state a claim if it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim or claims that would entitle her to relief. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45--46 (1957)). The Court accepts as true all of the facts alleged in the complaint and construes those facts in the light most favorable to Plaintiff. McGary v. City of Portland, 386 F.3d 1259, 1260 n.1 (9th Cir. 2004). The court is not, however, required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences. Manufactured Home Communities Inc. v. City of San Jose, 420 F.3d 1022, 1035 (9th Cir. 2005) (citation and internal quotation marks omitted).

II. Plaintiff's Objections to the R&R

Although Plaintiff initially expresses his intention to "address and oppose each and every point in the [R&R]," (Obj. to R&R at 1:22), the body of his objections specify that he has no objection to most of the R&R and only means to oppose certain parts or aspects of the R&R. Plaintiff makes only three specific objections. First, he objects that he "was never served with a copy of the Defendant's Reply to the Opposition to the Motion to Dismiss . . . ." (Id. at 1:3--5.) Second, he objects that the Court has already ruled that the FAC stated a claim. (Id. at 1:18--26.) As part of this objection, Plaintiff concludes the fact that the Court permitted his FAC to be filed constitutes the Court's holding that the FAC met the Rule 12(b)(6) standard. (Id.) Finally, Plaintiff contends he has adequately alleged the Board's liability under Monell v. Dept. of Soc. Servs. of City of New York, 436 U.S. 658, 98 S.Ct. 2018 (1978), for Defendant Kolender's actions. (Id. at 2:4--10:16.) This last objection is by far the most substantial. The Court will address each objection in turn.

A. Objection: Plaintiff Was Not Served with Defendant Board's Reply

Plaintiff contends he was not served with the Board's Reply to his opposition to the Motion. Plaintiff argues this prevents him from seeking leave to submit a rebuttal, and denies him the opportunity to be fully heard. Along with Defendant Board's Reply to Plaintiff's opposition to the Motion, however, the Board filed a proof of service by first class mail. Plaintiff has not mentioned this, or addressed the issue of why the Court should disregard the proof of service. The Court therefore concludes Plaintiff was served. Furthermore, the Reply is very brief - less than a full page - and merely reiterates and emphasizes arguments made earlier, which Plaintiff had an ...


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