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Andrew Rick Lopez v. Arnold Schwarzenegger

January 9, 2010

ANDREW RICK LOPEZ, PLAINTIFF,
v.
ARNOLD SCHWARZENEGGER, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER & FINDINGS AND RECOMMENDATIONS

Introduction

Take multiple claims against multiple defendants, multiple motions by all parties, multiple exhaustion requirements, and add in a bit of obstinacy/defiance on the part of plaintiff, and one has the recipe for litigation chaos. This adjudication will lessen the chaos once and for all.

Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. Pending before the court are: 1) a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), filed by defendants Roman and Kissel, on July 25, 2011, to which plaintiff filed his opposition on August 15, 2011, after which these defendants filed a reply on August 18, 2011; 2) plaintiff's "notice" that he was served at the wrong address and motion to strike new matter raised in defendants Roman's and Kissel's reply, filed on September 1, 2011, which these defendants opposed on September 7, 2011; 3) plaintiff's requests to extend the discovery deadline, filed on October 11, 2011, and on October 31, 2011, the latter of which was opposed by defendants on December 20, 2011; 4) plaintiff's various motions for appointment of counsel, for law library access, which include, inter alia, "notices" of "third party interference" and of "corruption," filed on October 17, 2011, October 18, 2011, October 31, 2011, November 9, 2011 and November 16, 2011; 5) plaintiff's motion to serve subpoenas and for subpoena forms, filed on October 17, 2011; 6) plaintiff's "motion for order requiring defendant Cate to fire Corcoran employees obstructing access to the courts," filed on November 14, 2011, to which defendants filed their response on December 20, 2011; 7) plaintiff's "objections and formal complaint," filed on December 1, 2011, seeking rulings on his pending motions; 8) plaintiff's "notice of theft" of his legal documents by defendants, filed on December 19, 2011.

Background

The gravamen of this action is plaintiff's allegation of being subjected to extended housing in the SHU (special/security housing unit) or Ad Seg (administrative segregation) arising from his continued validation as a prison gang member from 2003 on, predicated on allegedly inadequate and/or fraudulent supporting evidence. Plaintiff claims the gang validation SHU placement despite the lack of documentation of gang activity in his files will continue to impact him negatively with regard to parole consideration and classification score and levels as long as the placement is retained in his files. Id., at 25. First Amended Complaint (FAC), pp. 15-25 (see order & findings and recommendations, filed on July 5, 2011 (docket # 75), p. 3.

By order, filed on September 14, 2011, Judge England adopted the findings and recommendations of the undersigned, filed on July 5, 2011. The district judge's order adopted the adjudication of three separate motions to dismiss, under Fed. R. Civ. P. 12(b)(6), and claims three and seven were dismissed outright, as a result of the motions brought by defendants Cate (official capacity only), Garcia, Berna, Cronjeagar,*fn1 Gomez, Florez; Park, McClure, Russ, Williams, Burt, Fischer and Buechner. As to claims two and six (state law claims), in the undersigned's order, filed on July 5, 2011 at p. 19 (which was included with the separate findings and recommendations previously referenced), defendants' motions to dismiss had been granted but plaintiff was therein granted leave to amend within twenty-eight days "solely to meet the pleading requirements of the California Government Claims Act...." This was somewhat modified by Judge England's order, wherein it was set forth, that claims two and six were dismissed but that plaintiff was nevertheless "granted leave to amend solely to state how he has satisfied the pleading requirements of the California Government Claims Act with respect to these claims, citing the applicable facts and/or any circumstances precluding him from providing specific documentation of such compliance." See Order, filed on Sept. 14, 2011, p. 2. Although no specific deadline for the filing of any such amended complaint is therein provided, it is reasonable to construe the order as implicitly providing an additional twenty-eight days from the date of Judge England's order, for the filing of such an amended complaint, which is a very liberal extension of time from the order, filed on July 5, 2011. In any event, plaintiff totally failed to file a second amended complaint. Indeed, plaintiff objected to having to amend his complaint, indicating, in an untimely filing with respect to the July 5, 2011 order, that he intended to stand on the first amended complaint so that he would not lose his right to appeal the dismissal of claims and defendants, and re-hashed his argument that he did not need to plead compliance in order to proceed with claims two and six, which the court had previously comprehensively addressed. See plaintiff's "notice of intent to stand on complaint," filed on Sept. 6, 2011. Plaintiff's concern regarding an alleged inability to raise dismissed claims on appeal is ill-founded. "An appeal from a final judgment draws in question all earlier, non-final orders and rulings which produced the judgment." Litchfield v. Spielberg, 736 F.2d 1352, 1355 (9th Cir. 1984), citing Munoz v. Small Business Administration, 644 F.2d 1361, 1364 (9th Cir.1981); see also Lovell v. Chandler, 303 F.3d 1039, 1049 (9th Cir. 2002). Plaintiff did submit, however, certain documentation in what appears to have been something of an effort to demonstrate compliance with the California Government Claims Act, which will be addressed below.

Motion to Dismiss

The last two of the fifteen remaining defendants, Roman and Kissel, have brought their motion to dismiss under Fed. R. Civ. P. 12(b)(6), the legal standard for which was set forth in the July 5, 2011, findings and recommendations, Docket # 75, pp. 8-9, and is incorporated by reference herein. Defendant Roman contends that he should be dismissed from this case because plaintiff's claims against him are barred by the statute of limitations. MTD, Docket # 76-1, pp. 1, 3-4. In addition, as set forth in three prior separate motions to dismiss by the thirteen other defendants, defendants Roman and Kissel also seek dismissal of plaintiff's second, third and sixth claims for relief.*fn2 As plaintiff observes, defendants Roman and Kissel brought the pending motion to dismiss, raising precisely the same basis for the dismissal of grounds two, three and six*fn3 as were raised in the preceding three motions,*fn4 and the court incorporates by reference herein the arguments and analysis set forth in its findings and recommendations, filed on July 5, 2011.

Moreover, defendant Roman also raises a separate ground alleging that plaintiff is barred from proceeding on his claims against him by the statute of limitations.

As to the contention that plaintiff's claim against defendant Roman is time-barred, plaintiff alleges that his gang validation in November 2000, relied on six items: four alleged informant statements and two CDC 128 B forms based on alleged staff documentation. FAC, p. 15. The Nov. 15, 2000 128 B-2 form/report rejected four additional CDC-128 B forms as not meeting the gang validation criteria. Id. Thereafter, one of the two CDC 128 B reports found reliable in November of 2000, was stamped as also failing to meet the requisite criteria. Id. In 2003 and 2004, without notice to plaintiff, the same ten items originally submitted in 2000 were re-evaluated and plaintiff was validated as a prison gang member. Id. Defendant Roman was involved in the 2003 gang validation. Id. Plaintiff was unaware of the re-evaluations until late 2004, when non-party R. Comfort issued a CDC 128 G form refusing to approve plaintiff's SHU term based on unreliable validation documentation; he deferred the validation but approved a 60-day Ad Seg placement extension for case follow-up. Id.

Claims two, three, six [and seven]

Defendant Kissel, on June 15, 2009, was among those defendants who issued CDC 128 B-2 forms validating plaintiff as a gang member. FAC, at 22-23. These actions, purportedly, fraudulently documented the December 2008 CDC-128 B forms as supporting the unreliable confidential memorandum in violation of plaintiff's constitutional rights. Id., at 23.

Defendants Roman and Kissel filed their motion prior to Judge England's decision as to the motions to dismiss brought by the other defendants. Once a decision of law is made, it becomes the "law of the case," and absent clear error or changed circumstances should not be changed. See United States v. Estrada-Lucas, 651 F.2d 1261, 1263-64 (9th Cir.1980). The law of the case doctrine provides that "a court is generally precluded from reconsidering an issue that has already been decided by the same court, or a higher court in the identical case." United States v. Cuddy, 147 F.3d 1111, 1114 (9th Cir. 1998), quoting United States v. Alexander, 106 F.3d 874, 876 (9th Cir. 1997) (internal quotation and citation omitted). In light of Judge England's September 14, 2011, ruling it is now the law of the case that claims three and seven have been dismissed. See Order, filed on September 14, 2011 (docket # 93). The court will not revisit the parties' arguments which have been thoroughly considered in the July 5, 2011, findings and recommendations, that have been adopted by the district judge. Furthermore, as defendants Roman and Kissel observe in their reply, plaintiff does not take issue in his opposition with the dismissal of claim three.*fn5 Reply, p. 2, citing Opp., p. 2. Thus, Claims three and seven (see footnote 2) are dismissed out of this litigation with respect to all defendants, including, of course, the presently moving defendants.

As to the second and sixth grounds for relief (state law claims), the undersigned has noted Judge England's modification of the order wherein plaintiff was granted leave to amend. The court made an extensive analysis in adjudicating the other defendants' motions to dismiss that plaintiff was to make a showing of fulfilling the state government claims board pleading requirement in order to proceed on claims two and six. However, rather than simply follow the court's direction to amend, plaintiff has decided to complicate matters by refusing to amend, and then filing piecemeal, supposed evidence of compliance of filing a Tort Claims (GCA) administrative claim. However, the administrative claim(s) do not identify any of the defendants in this action, and raise more questions about the timeliness of such an administrative claim than they resolve. See exhibits to docket # 87, filed on August 15, 2011, to the pending motion to dismiss as brought by defendants Roman and Kissel, as well as docket # 100, filed on October 18, 2011, with regard to having filed a state Government Claims Board Claim.

Plaintiff was told to amend his complaint with respect to Claims two and six because the law requires that compliance with the Tort Claim Act (GCA) be ...


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