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Gregory v. County of San Diego

United States District Court, S.D. California

April 28, 2015

PATRICIA A. GREGORY, Plaintiff,
v.
COUNTY OF SAN DIEGO, WILLIAM D. GORE, SHERIFF, COUNSELOR JENNIFER MONTIEL, and DOES I through XX, inclusive, Defendants.

ORDER

WILLIAM Q. HAYES, District Judge.

The matter before the Court is the Motion to Dismiss Third Amended Complaint, filed by all Defendants. (ECF No. 41).

BACKGROUND

On April 29, 2013, Plaintiff Patricia A. Gregory, proceeding pro se, initiated this action by filing a Complaint in this Court seeking damages against Defendants pursuant to 42 U.S.C. section 1983. (ECF No. 1). On October 15, 2013, the Court issued an Order granting Defendants' motion to dismiss the Complaint on the grounds that the Complaint failed to state a plausible claim for denial of access to the courts, and the Complaint failed to adequately allege facts to show that Plaintiff's claim would not be barred by Heck v. Humphrey . [1] (ECF No. 16).

I. First Amended Complaint

On January 21, 2014, Plaintiff filed a First Amended Complaint ("FAC"). (ECF No. 21). The FAC alleged that "[o]n March 13, 2011, [Plaintiff], a family law attorney, was placed on inactive status and charged [in a California State Bar trial court] with misappropriation of $112, 000 in [client] trust funds. Plaintiff filed a motion for review based upon perjured testimony of the clients, prosecutorial misconduct and trial court error." Id. ¶ 14.

On September 29, 2011, Plaintiff was charged in San Diego County Superior Court with 11 felony charges alleging that Plaintiff embezzled funds from client accounts. Id. ¶ 15. On January 23, 2012, Plaintiff signed a plea bargain/no contest to one felony and two misdemeanor counts because Plaintiff "feared [her former] clients' false statements would be believed at a criminal trial." Id. ¶ 19.

"On February 24, 2012, [Plaintiff] was sentenced to one year in [Las Colinas Women's Jail] based on the large amount of fees at issue." Id. ¶ 24. "Several days after [Plaintiff]'s incarceration, she began to request the use of the Las Colinas law library." Id. Plaintiff used the law library to "prepare appeals for the sentencing and state bar rulings [recommending that Plaintiff be disbarred]." Id. "Then, without notice or reason, her requests for library time went unanswered." Id. Plaintiff submitted "Inmate Request forms" on March 12, 2012 and March 14, 2012, seeking law library access. Id. ¶¶ 25-26.

On April 1, 2012, Plaintiff received "a notice that the Law Library had been replaced by a legal research service." Id. ¶ 27. "The legal research service limited inmate requests to only ONE per calendar month and only FIVE questions could be asked each month." Id. "This service was woefully deficient...." Id.

On April 18, 2012 and April 30, 2012, Plaintiff sent handwritten letters to the Supreme Court of California "explaining that she was incarcerated and unable to comply with procedures, fearful that she would miss the deadline for submitting a petition for writ of review [of the State Bar proceeding]." Id. ¶ 30; see also id. ¶ 31.

On April 24, 2012, May 4, 2012, and June 4, 2012, a deputy clerk with the Supreme Court of California wrote to Plaintiff stating that, "[t]o consider your petition, we require the petition to be in the proper form." Id ¶¶ 30, 32. On June 15, 2012, Plaintiff sent another letter to the Supreme Court of California. Id. ¶ 34. "On June 28, 2012, the [Supreme Court] clerk acknowledged Plaintiff's letter of June 15, 2012, however the deadline for submitting a petition had pas[sed]." Id. "The lack of a law library, lack of research materials and lack of the tools needed to draft and make copies of a petition caused Plaintiff to miss the deadline for filing a writ of petition to the Supreme Court regarding the underlying ruling of her criminal conviction and restitution order." Id.

"Defendants... violated Plaintiff's First, Sixth and Fourteenth amendment rights causing actual injury to Plaintiff." Id. ¶ 8. "Defendants interfered with [Plaintiff's] ability to file an appeal of her sentencing and her appeal of the State Bar ruling because they shut her out from all access to legal information for over 60 days. [Plaintiff] was trying to collaterally attack the criminal judgment with a reversal of the State Bar ruling." Id. ¶ 34.

On August 10, 2012, Plaintiff was released from custody. Id. ¶ 3.

"Once Plaintiff was denied access to petition the Supreme Court of California for review of the State Bar's ruling, she was permanently disbarred." Id. ¶ 56. "The issue of outstanding unpaid legal fees was not adjudicated in the State Bar's ruling.... Once the State Bar's ruling became final, that ruling acted as res judicata as to the subsequent amount of criminal restitution ordered and supported the length of the criminal sentencing." Id. "Plaintiff never had the opportunity to petition the Supreme Court for a review of this administrative ruling yet constitutionally she is entitled to collaterally attack the criminal judgment. Plaintiff had a constitutional right to access the courts in order to properly address this crippling ruling, a right that was cruelly denied by the arbitrary acts of Defendants." Id.

Pursuant to 42 U.S.C. section 1983, the SAC sought declaratory relief, compensatory damages in the amount of $250, 000 against each Defendant, and punitive damages in the amount of $250, 000 against each Defendant. Id. ¶ 57-59.

On February 2, 2014, Defendants filed a motion to dismiss the FAC. (ECF No. 22). On May 14, 2014, the Court issued an Order granting Defendants' Motion to Dismiss the FAC. (ECF No. 25). The May 14, 2014 Order first addressed whether Plaintiff was denied access to the courts. The Court found that:

Prisoners have a constitutional right of meaningful access to the courts. See Lewis v. Casey, 518 U.S. 343, 350-51 (1996) (citing Bounds v. Smith, 430 U.S. 817, 821 (1977)). To establish a constitutional claim for denial of access to the courts, a plaintiff must show that the denial has hindered her ability to bring a non-frivolous legal claim. See id. at 351-53 & n.3. The right of access protects only non-frivolous direct criminal appeals, habeas corpus proceedings, and § 1983 actions. See id. at 353-55 & n.3; see also id. at 355 ("The tools [ Bounds ] requires to be provided are those that the inmates need in order to attack their sentences, directly or collaterally, and in order to challenge the conditions of their confinement. Impairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration."); cf. Simmons v. Sacramento Cnty. Superior Court, 318 F.3d 1156, 1159-60 (9th Cir. 2003) ("[A] prisoner has no constitutional right of access to the courts to litigate an unrelated civil claim").

(ECF No. 25 at 6). The Court concluded that "Plaintiff's appeal of the State Bar ruling against her is neither an appeal of her criminal case, nor a habeas petition, nor a § 1983 claim." Id. The Court further concluded that the facts alleged were not sufficient to show that an attack on Plaintiff's State Bar ruling was a collateral attack of her criminal judgment.

The May 14, 2014 Order addressed whether Plaintiff's claim was barred by Heck v. Humphrey, 512 U.S. 477. The Court found that:

Even if Plaintiff had adequately alleged facts sufficient to make Bonds and Lewis applicable, Plaintiff has failed to show that her claim would not be barred by the rule announced in Heck v. Humphrey, 512 U.S. 477 (1994), which prevents a plaintiff from bringing a civil rights action that "would necessarily imply the invalidity of [the plaintiff's] conviction or sentence." Id. at 487. Gregory cites Nonette v. Small, 316 F.3d 872 (2002), and Spencer v. Kemna, 523 U.S. 1 (1998), in support of her contention that her claim is not barred by Heck. (ECF No. 21 at 6-7). In Nonette, the Court of Appeals for the Ninth Circuit interpreted Spencer as creating a limited exception to the Heck bar, permitting a § 1983 action challenging the denial of good time credits because the plaintiff had been released and habeas relief was unavailable. See Nonette, 316 F.3d at 876-78 & nn. 6-7. The exception recognized by Nonette is limited to "former prisoners challenging loss of good-time credits, revocation of parole or similar matters, " id. at 878 n.7, who "diligently" pursued "expeditious litigation" to challenge those punishments to the extent possible. Guerrero v. Gates, 442 F.3d 697, 704-05 (9th Cir. 2006) (stating that, "though habeas relief for Guerrero may be impossible as a matter of law, " because "Guerrero never challenged his convictions by any means prior to filing this lawsuit, " "we decline to extend the relaxation of Heck 's requirements" and "hold that Heck bars Guerrero's § 1983 claims of wrongful arrest, malicious prosecution, and conspiracy").

(ECF No. 25 at 7-8).

The Court concluded that "[i]n the First Amended Complaint, [Plaintiff] fails to adequately allege that she is challenging loss of good-time credits, revocation of parole or similar matters, '... or diligently' pursued expeditious litigation' to challenge those punishments to the extent possible.... Plaintiff fails to allege that she appealed her criminal case or filed a habeas petition challenging any aspect of the criminal case." Id. at 8.

The Court further concluded that "[t]o the extent Plaintiff alleges that Defendants denied her access to the courts to file a direct appeal in her criminal case, Plaintiff's claim would be barred because judicially-noticed documents show that Plaintiff was represented by counsel at all times in the criminal proceedings.... To the extent Plaintiff alleges that her counsel in the criminal proceedings was ineffective, Plaintiff has failed to allege that she diligently pursued a claim of ineffective assistance of counsel in a direct appeal of her criminal case or a habeas petition challenging the criminal case...."

The Court concluded that the FAC "failed to state a cognizable claim for denial of access to the court" and that the FAC "failed to adequately allege facts to show that Plaintiff's claim was not barred by the rule announced in Heck v. Humphrey, 512 U.S. 447 (1994)." Id. at 7-8.

II. Second Amended Complaint

On July 28, 2014, Plaintiff filed a Second Amended Complaint ("SAC"). (ECF No. 30). The SAC alleged that "[o]n March 13, 2011, [Plaintiff], a family law attorney, was placed on inactive status and charged with misappropriation of $112, 000 in trust funds after trial." (ECF No. 30 ¶ 36). "The State Bar trial should have addressed two issues. (1) Whether [Plaintiff] had her clients' written consent to withdraw funds from their trust account and (2) whether the amount of fees earned by [Plaintiff] equaled the withdrawn funds. The SAC alleged that the "State Bar erroneously addressed only one issue, leaving the... issue of whether or not [Plaintiff] earned all the fees ...


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