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Popescu v. California Department of Corrections and Rehabilitation

United States District Court, S.D. California

August 22, 2014



ROGER T. BENITEZ, District Judge.

Now before the Court are motions filed by all defendants to dismiss the First Amended Complaint. The federal claims are barred by the statute of limitations. Because the federal claims are being dismissed, the Court declines to exercise supplemental jurisdiction over the remaining state-law claims. Therefore, for the reasons stated below, the case is dismissed.


Plaintiff Virgil Popescu, a California parolee, has filed a civil rights lawsuit pursuant to 42 U.S.C. § 1983, alleging violations of his Fourth, Eighth, and Fourteenth Amendment rights. Plaintiff also alleges supplemental state-law claims pursuant to 42 U.S.C. § 1367(a). In particular, he alleges claims of intentional infliction of emotional distress, negligent infliction of emotional distress, "failure to properly train, " and "failure to supervise and discipline." The First Amended Complaint ("FAC") was filed on January 27, 2014. For purposes of computing statutes of limitations, the FAC relates back to the date the original Complaint was filed on March 11, 2013.

Popescu states that he was convicted of California stalking and weapons charges in 2006.[1] (FAC ¶ 12.) He asserts that, following his prison term, he was due for parole on October 8, 2009, but he was not allowed to parole to San Diego (at the request of a stalking victim). ( Id. ¶ 14.) He further asserts that Parole Agent T.J. Ayala imposed ten other conditions which were "outrageous, illegal and unconstitutional, and not related to the offense." ( Id. ) Plaintiff claims that since his conviction for stalking fell under California Penal Code section 649, he should not have been prevented from paroling to San Diego County. ( Id. ¶ 24.) He then asserts that after a parole supervisor refused to modify the conditions, he refused to comply with the conditions and he was sentenced to six more months in prison. ( Id. ) Based on his belief that he was wrongfully required to parole to Indio, California, Popescu alleges that he returned to San Diego on two separate occasions to seek assistance from the courts. He was arrested each time. ( Id. ¶¶ 37, 46.)

In January 2010, while Plaintiff was in prison for his parole violation at the California Rehabilitation Center in Norco, the California Court of Appeal reversed the stalking conviction. The state firearms conviction was affirmed. ( Id. ¶ 17.) He asked parole officials to release him from custody, because, he alleges, "he was in prison at the time, for refusing to sign the conditions related to STALKING." ( Id. ¶ 18.) Popescu claims that because the stalking conviction was kept on the records he was still ordered to be paroled to Indio, which he refused to do. ( Id. ¶ 19.) Popescu alleges that the failure of the parole officials to realize that his stalking conviction had been overturned was directly responsible for 18 months of additional incarceration. ( Id. ¶¶ 19-20.) He claims he was incarcerated seven times[2] on the "NON-EXISTING offense of STALKING." ( Id. ¶ 19). He further asserts that he wrote letters to various parole officials requesting to be released based on the appellate decision, but received no response. ( Id. ¶ 30.) Plaintiff also alleges that the inactions of the parole agents caused severe mental stress and required him to take medication to stay alive. ( E.g., id. ¶¶ 26-27, 31, 35, 42, 50.)

Popescu also alleges that excessive force was used to arrest him on multiple occasions. ( E.g., id. ¶¶ 33, 41, 46, 48.) During these incidents, he claims that officers assaulted him, placed handcuffs on him too tightly, and dislocated his shoulder. ( Id. ) In addition, he claims that the officers insulted and threatened him. ( Id. ¶¶ 33, 41.) Finally, he alleges that when he requested his medications to counteract an imminent heart attack, the officer refused. ( Id. ¶¶ 33, 41.) Popescu does not allege that he suffered a heart attack as a result of these events. ( See id. ¶¶ 33-35, 41-44.) However, he claims to have suffered numbness in his extremities, severe chest pains, and extreme mental and emotional distress. ( Id. ¶¶ 33, 41.) During one of the arrests, Popescu alleges that the arresting officer was unable to restrain him with traditional handcuffs and wrapped a chain around his waist to secure him. ( Id. ¶ 41.)

After one of the arrests, Plaintiff alleges that Parole Agent Hurtado took his keys and searched his apartment. ( Id. ¶¶ 46-47.) He further alleges that Agent Hurtado stole some of his personal items while conducting the search, although he does not indicate what those items were. Plaintiff alleges that he was held for nine hours in "a very cold tank" wearing only his boxers. Afterwards, he was moved to a place called the "Light House", where he was forced to participate in "rehabilitation programs with drug addicts and alcoholics." Plaintiff was then moved to the Indio Rescue Mission where he received food, clothing, and shelter in the evening, while describing the time as "three days of pain and suffering" where he "expected to die."

In short, all of these claims arise from the period between his conviction for stalking and imposition of parole conditions in 2009, and the time when the conviction was eventually reversed, recognized in the superior court, and the parole conditions formally removed in 2011.

Popescu now asserts several claims for relief against the State of California Department of Corrections and Rehabilitation and 13 individual defendants: James Davis, Chairman of the Parole Board, Benny Davides, Parole Administrator, Bonita Stewart, Assistant Administrator, T.K. Ayala, Parole Agent, Louie Saldana, Parole Agent, Michael Ortiz, Parole Agent, Edward Galindo, Parole Agent, Sandra Walker, Parole Supervisor, Steve Smith, Parole Supervisor, Kenneth Ford, Parole Administrator, Frank Hurtado, Parole Agent, William Gore, San Diego County Sheriff, and C. Desalme, Deputy Sheriff, San Diego County. Federal claims for relief are brought principally under 42 U.S.C. §1983.


Under Federal Rule of Civil Procedure 12(b)(6), dismissal is appropriate if, taking all factual allegations as true, the complaint fails to state a plausible claim for relief on its face. FED. R. CIV. P. 12(b)(6); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556-57 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (requiring plaintiff to plead factual content that provides "more than a sheer possibility that a defendant has acted unlawfully"). Under this standard, dismissal is appropriate if the complaint fails to state enough facts to raise a reasonable expectation that discovery will reveal evidence of the matter complained of, or if the complaint lacks a cognizable legal theory under which relief may be granted. Twombly, 550 U.S. at 556. A claim may be dismissed pursuant to Rule 12(b)(6) on the ground that it is barred by the applicable statute of limitations when "the running of the statute is apparent on the face of the complaint." Huynh v. Chase Manhattan Bank, 465 F.3d 992, 997 (9th Cir. 2006).

The Ninth Circuit requires trial courts to "construe pro se filings liberally when evaluating them under Iqbal. " Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (footnote omitted). "While the standard is higher, our obligation remains, where the petitioner is pro se, particularly in civil rights cases, to construe the pleadings liberally and to afford the petitioner the benefit of any doubt." Id. (quoting Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc) (internal quotations marks omitted)).

For any plaintiff to sustain an action under 42 U.S.C. § 1983, it must be shown: (1) that the conduct complained of was committed by a person acting under color of state law; and (2) that the conduct deprived the plaintiff of a constitutional right. Rinker v. Napa County, 831 F.2d 829, 831 (9th Cir. 1987) (citing Parratt v. Taylor, 451 U.S. 527, 535 (1981)). Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts ...

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