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Jerry Cobb v. Kathy Mendoza-Powers

November 14, 2011

JERRY COBB,
PLAINTIFF,
v.
KATHY MENDOZA-POWERS, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS RECOMMENDING GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS AND DISMISSING PLAINTIFF'S COMPLAINT, WITH LEAVE TO AMEND (ECF Nos. 23, 26, 27) / OBJECTIONS DUE WITHIN THIRTY DAYS

I. Procedural History

Plaintiff Jerry Cobb is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on the complaint, filed March 24, 2010, against Defendants Kathy Mendoza-Powers, J. Reynolds, and J. Chastagner for violation of the First Amendment and 42 U.S.C. § 2000cc-1 (Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA)). On May 23, 2011, Defendants filed a motion to dismiss Plaintiff's First Amendment claims and Defendant Mendoza-Powers. (ECF No. 23.) Plaintiff filed an opposition on June 30, 2011,*fn1 and Defendants filed a reply on July 5, 2011. (ECF Nos. 26, 27.)

II. Argument

A. Defendants' Argument

Defendants bring this motion on the grounds that 1) Plaintiff failed to exhaust administrative remedies as to his claims against Defendant Mendoza-Powers; 2) Plaintiff's claims against Defendant Mendoza-Powers do not state a claim because they are based on respondeat superior; 3) Plaintiff's free exercise claim is barred by the statute of limitations; 4) Defendants are immune from suit for damages under the Eleventh Amendment for suits brought in their official capacities; and

5) Plaintiff is not entitled to injunctive relief.

Defendants argue that Plaintiff did not raise his claim that Defendant Mendoza-Powers supported the actions taken by Defendants Reynolds and Chastagner in any inmate appeal and therefore he has failed to exhaust his administrative remedies. Defendant Mendoza-Powers was an associate warden at the time of the incidents alleged in the complaint, and was not liable for constitutional violations of her subordinates on a theory of repondeat superior. Plaintiff's complaint does not allege that Defendant Mendoza-Powers personally participated in a deprivation of his constitutional rights, but that she "failed to uphold plaintiff's constitutional right to religious freedom by supporting the unlawful actions against him." This is insufficient to allege her personal involvement or causal connection to state a claim.

In his complaint Plaintiff alleges incidents that occurred in December 2005 and he did not file his complaint until April 13, 2010, over five years later. The applicable statute of limitations in California is two years and Plaintiff is entitled to an additional two years because he was imprisoned. Plaintiff filed a writ of habeas corpus in the Untied States District Court for the Central District of California based upon the same incidents alleging a violation of his right to freely practice his religion by not complying with prison grooming standards. Plaintiff's habeas petition was dismissed on January 25, 2010, for failure to state a claim. Plaintiff's complaint alleges actions of the Defendants on December 20, 2005, and December 26, 2005. At the time Plaintiff filed this action, on April 13, 2010, the statute of limitations had expired.

Plaintiff may not seek compensatory and punitive damages against Defendants in their official capacities. Suits brought against Defendants in their official capacity are equivalent to suits against the state and are barred by the Eleventh Amendment. The court does not have jurisdiction over these claims and they should be stricken or dismissed.

Finally, Defendants argue that Plaintiff's requests for the removal of all disciplinary records from his central file and an order for a new board hearing to consider his release on parole should be denied as Defendants cannot provide him with the relief requested. The relief Plaintiff is seeking extends beyond the alleged injury he suffered and is directed to the California Department of Corrections, who is not a defendant in this action. Plaintiff fails to show imminent injury as he does not allege that the disciplinary records remain in his file or that he was denied parole based upon the disciplinary actions, nor could he prove that he will continue to be denied parole in the future based upon the disciplinary actions.

B. Plaintiff's Opposition

Plaintiff argues that he did exhaust his administrative remedies regarding his claims against Defendant Mendoza-Powers. On January 25, 2006, Plaintiff filed his inmate appeal regarding the disciplinary chrono that was issued for grooming violations. On February 10, 2006, Plaintiff filed his inmate appeal regarding the second disciplinary chrono that was issued for grooming violations. Plaintiff's appeals were denied at the director's level and his administrative remedies were exhausted.

Defendant Mendoza-Powers was acting warden at the time the incidents alleged in the complaint occurred and as such she was charged with the duties of managing the daily activities of the prison, prison policies, and employee conduct. Defendant Mendoza-Powers authorized one of her lieutenants to produce and circulate the grooming memo that maintained an unconstitutional grooming policy. Defendant Mendoza-Powers notified her employees on January 19, 2006, that she needed to meet with them regarding the unconstitutional grooming policy. After receiving Plaintiff's appeals, dated January 25 and February 10, 2006, Defendant Mendoza-Powers refused to protect Plaintiff's rights by denying him relief from punishment. Defendant Mendoza-Powers was charged with reviewing inmate appeals at the second level of review and demonstrated a conscious choice to aid and abet after the fact.*fn2 Defendant Mendoza-Powers authorized the grooming memo that instructed her employees to continue enforcing the policy after the ruling in Warsoldier v. Woodford, 418 F.3d 989 (9th Cir. 2005).

Additionally, Defendant Mendoza-Powers can be held liable on a theory of respondeat superior. Defendant Mendoza-Powers was acting warden at the time of the violations and her duties included supervising employees. The doctrine of respondeat superior includes the policy making of individual officials. As acting warden Defendant Mendoza-Powers was the authorized policy maker.

Plaintiff incorrectly filed his writ of habeas corpus on December 24, 2008, in the United States District Court for the Central District of California. The District Court dismissed Plaintiff's petition, without prejudice, on January 25, 2010. Plaintiff argues that his right to proceed forward with this claim was preserved by the District Court dismissing his claim without prejudice and that his claims are not time barred under the "unauthorized punishment" doctrine. California has repeatedly held that an unauthorized punishment can be corrected at any time.

Defendants are not immune to suit in their official capacities. California has taken action to waive Eleventh Amendment immunity by accepting liability of its employees through the California tort process. California has created a tort process whereby it can be held liable for damages from the acts of its employee. By creating an action for recovery in tort California has waived its immunity under the Eleventh Amendment. Further, if the Court finds that California is entitled to Eleventh Amendment immunity he requests that California be prohibited from any further involvement in this action. Only by prohibiting the state from engaging Plaintiff in this suit can he have a fair contest with Defendants in their individual capacities.

Finally, since California is the real party in interest they need not be named for the Eleventh Amendment to apply. Plaintiff can receive declaratory judgment and injunctive relief under the Eleventh Amendment. Plaintiff argues that he is likely to succeed on the merits of his claim underRLUIPA. The rule violation documents were previously used in Plaintiff's 2006 parole hearing to meet the some evidence standard to deny his parole. As long as these documents are in Plaintiff's prison records they may possibly be used to deny parole at future hearings. Because Plaintiff has raised a colorable First Amendment claim that his religious beliefs have been infringed he has established irreparable injury unless an injunction is issued barring enforcement of the grooming documents against him.

If the court finds that Plaintiff failed to allege sufficient facts he seeks leave to amend his complaint.

C. Defendants' Reply

Plaintiff is mistaken when he argues that his appeals regarding Defendants Chastagner and Reynolds included his allegations against Defendant Mendoza-Powers. Plaintiff alleges that Defendant Mendoza-Powers authored the memorandum instructing staff that the grooming standards would temporarily remain in effect, however it was authored by Lieutenant Pina and does not indicate that it was written on her behalf. The memo itself states that the Litigation Office consulted with Sacramento and confirmed that the grooming standards were still in effect. Contrary to Plaintiff's allegation there is not even a suggestion that Defendant Mendoza-Powers was involved in the decision regarding grooming standards.

The appeals Plaintiff cites do not mention the memoranda or suggest that Defendants Chastagner and Reynolds were acting at the direction of Defendant Mendoza-Powers. Both of Plaintiff's appeals alleged that Plaintiff had been issued a rule violation for failing to comply with the grooming policy and requested the rule violation reports be removed from his central file. Plaintiff's appeals only concerned the narrow issue of the rule violation report and were not sufficient to put the prison on notice that Plaintiff was alleging wrongful acts by Defendant Mendoza-Powers.

Although Plaintiff argues that he has established a claim against Defendant Mendoza-Powers he has sued her because of her job title. There is no liability under section 1983 against persons who do not participate in the civil rights violation. While Plaintiff attempts to allege that Defendant Mendoza-Powers was responsible for the policy, at best, he has shown that Lieutenant Pina was involved in the policy. Plaintiff's allegations regarding the January 19, 2006, communication from Defendant Mendoza-Powers merely demonstrates that she wished to speak with staff regarding the policy. This was subsequent to the incidents alleged in the complaint. Defendant Mendoza-Powers actions taken after the alleged unconstitutional conduct, whether the communication to staff regarding the grooming policy or the denials of Plaintiff's appeals, is insufficient to state a claim against her.

The fact that Plaintiff's habeas petition was dismissed without prejudice does not preclude his complaint from being barred by the statute of limitations. The statute of limitations under California law is two years, plus an additional two years because Plaintiff was incarcerated. Plaintiff's complaint was filed over five years after the incidents alleged occurred and therefore was barred by the statute of limitations.

It is well established that a state cannot be sued for damages in federal court and the state need not be a named defendant for the Eleventh Amendment to apply. Because Plaintiff is seeking ...


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