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Heilman v. Whitten

United States District Court, E.D. California

June 19, 2017

THOMAS JOHN HEILMAN, Plaintiff,
v.
A. WHITTEN, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS

          CAROLYN K. DELANEY, UNITED STATES MAGISTRATE JUDGE

         I. Background

         Plaintiff is a California state inmate proceeding pro se with this action pursuant to 42 U.S.C. § 1983 alleging a First Amendment retaliation claim against defendants for delaying, tampering with, and destroying his legal property during a prison transfer in the spring of 2012.

         Currently pending before the court is defendants' motion to dismiss the complaint as frivolous or malicious pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). ECF No. 35. Plaintiff has filed an opposition, ECF No. 38, and defendants' have filed a reply, ECF No. 39. Although not authorized by Local Rule, plaintiff filed an additional response which the court has also considered in adjudicating the motion. ECF No. 40. For the reasons outlined below, the undersigned recommends granting defendants' motion to dismiss.

         II. Discussion

         A. Factual and Procedural History

         In his First Amended Complaint (FAC), plaintiff alleges that defendants Whitten, Dooley, and Mendosa confiscated and destroyed his legal materials and personal property while transferring him from CMF-Vacaville to the R.J. Donovan Correctional Facility. ECF No. 11 at 11. The actions by these correctional officers at CMF-Vacaville were allegedly done in retaliation for plaintiff's pursuit of civil lawsuits and grievances against prison officials. Id. Plaintiff's property was not returned to him for approximately 85 days and when it was returned to him it was covered in dried coffee grounds. Id. at 12. Plaintiff seeks compensatory and punitive damages in the amount of $200, 000.00. Id. at 36.

         The allegations in the current complaint mirror those alleged in a state tort claim that the plaintiff filed in the Solano County Superior Court against Correctional Officers Whitten, Mendosa[1], and Hernandez. See ECF No. 35-2 at 5 (Complaint for Personal Injury, Property Damage, Wrongful Death). In his state court complaint, plaintiff alleged that “[p]rison officials deliberately, negligently and with malice, and as a retaliatory act seized, confiscated, stole and/or damaged… [his] personal property including all of… [his] legal documents and records….” Id. at 8. By way of relief, plaintiff requested compensatory and punitive damages in the amount of $452, 400.00. Id. at 7.

         The state court complaint was received by the Solano County Superior Court on January 8, 2013. ECF No. 35-2 at 105 (Solano County Superior Court docket sheet). The state court declared Heilman a vexatious litigant and ordered him to post security in order to proceed with the action because there was not a reasonable probability that plaintiff would prevail at trial against defendants Whitten and Mendosa. See ECF No. 35-2 at 80-83 (Order with respect to Defendant Whitten); 90-91 (Order with respect to Defendant Mendoza). After plaintiff failed to post the required security in the amount of $2, 620.00, the Solano County Superior Court dismissed the action with prejudice on March 19, 2014. ECF No. 35-2 at 94-96 (order dismissing defendant Whitten); 100 (Judgment); 101-102 (order dismissing defendant Mendoza).

         Plaintiff initiated the present civil rights action on July 23, 2015. ECF No. 1. This court declared him to be a Three Strikes litigant pursuant to 28 U.S.C. § 1915(g) on July 7, 2016, and revoked his in forma pauperis status. ECF No. 26. Thereafter, plaintiff paid the $400.00 filing fee in order for this action to continue.

         B. Defendants' Request for Judicial Notice

         Pursuant to Rule 201(d) of the Federal Rules of Evidence, defendants request that the court take judicial notice of: 1) the pleadings, orders, and docket entries in Heilman v. Whitten, No. FCS041028 (Solano County Superior Court); and, 2) the vexatious litigant list maintained by the California Judicial Council. Plaintiff does not challenge the accuracy or content of any of these documents.

         “A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201(b). The accuracy of these public records from the state court cannot reasonably be questioned and have a direct relationship to the matters at issue in the pending motion to dismiss. See United ...


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