United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
CAROLYN K. DELANEY, UNITED STATES MAGISTRATE JUDGE
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.
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.
Factual and Procedural History
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.
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, 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.
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).
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.
Defendants' Request for Judicial Notice
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.
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 ...