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Arceo v. Salinas

United States District Court, E.D. California

June 21, 2017

ANTHONY ARCEO, Plaintiff,
v.
SOCORRO SALINAS, et al., Defendants.

          ORDER AND FINDINGS AND RECOMMENDATIONS

          KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE.

         I. Introduction

         Plaintiff is committed to a state hospital under California's Sexually Violent Predators Act (“SVPA”). This action proceeds on plaintiff's retaliation claims against defendants Surjick, Kong, Adams and McHugh for their alleged actions in February of 2012, and defendant Savage based on his alleged actions in September 2012, contained in plaintiff's third amended complaint.[1] (ECF No. 47.) Plaintiff has filed a request for clarification, as well as a motion to amend, accompanied by his proposed fourth amended complaint. Plaintiff has also filed a motion for protective order. After reviewing the background of this case, the court addresses plaintiff's motions below.

         II. Background

         This action was filed in 2011. On May 17, 2012, the court dismissed plaintiff's original complaint because his allegations were largely based on the confiscation of his property, personal and legal, and named defendants at three correctional facilities. (ECF No. 7 at 4.) Plaintiff was advised that to the extent he attempted to raise access to the courts claims, he must allege facts demonstrating a colorable allegation of actual injury. (Id.) Plaintiff was given the standards governing such First Amendment claims. Plaintiff was also provided the standards for pleading a retaliation claim under the First Amendment, because his cursory retaliation claim was inadequate. (ECF No. 7 at 5.)

         Plaintiff timely filed an amended complaint. (ECF No. 11.) In the August 21, 2014 screening order, the court noted that plaintiff's allegations were “again wide ranging and rambling.” (ECF No. 18 at 2.) Although plaintiff included two causes of action, they were followed by “23 pages of often unrelated facts.” (ECF No. 18 at 3.) The court characterized plaintiff's causes of action as follows:

In his first cause of action, plaintiff alleges that defendant San Joaquin County Sheriff Steve Moore violated plaintiff's First Amendment rights “by his actions of denial to access to court, file grievance, law library and chilling protections as medical, visits and other violations of law against plaintiff, ” as well as “by his actions of denial to suppressed speech in grievance form and rule book violating similar (sic) situated persons are treated alike respectively and other violations of law against plaintiff;” and violated plaintiff's Fourteenth Amendment rights “by his failure to adequately supervise the correctional officers subordinate to him.” (ECF No. 11 at 24.) In his second cause of action, plaintiff alleges that sixteen other defendants violated plaintiff's First Amendment rights “by their actions of denial to file grievance, access to court, law library and chilling medical treatment, visits and other violation of law against plaintiff;” and violated plaintiff's Fourteenth Amendment rights “by their failure to notify plaintiff with statute, regulation, rule or ruling of new authoritative legitimate penal goal and other violations of law against plaintiff.” (Id. at 25.)

(ECF No. 18 at 3.) Plaintiff's complaint was dismissed with leave to amend, and plaintiff was again provided the standards for stating denial of access to the courts and retaliation claims. (ECF No. 18 at 4-5.)

         Plaintiff filed a second amended complaint on December 8, 2014, alleging that defendants retaliated against plaintiff based on the exercise of his free speech rights by, inter alia, denying grievances as well as denying his mother visitation. However, plaintiff's mother then filed proposed amended complaints on January 6, and 21, 2015, which the court struck as improvidently filed. (ECF No. 24 at 1-2.) On March 16, 2015, the court screened plaintiff's second amended complaint, in which plaintiff again challenged the grievance procedures at the jail, and raised new claims concerning denial of visitation and retaliation. Plaintiff's claims were screened out, but plaintiff was granted leave to amend to attempt to state a cognizable retaliation claim. (ECF No. 24 at 9.)

         On May 20, 2015, plaintiff filed his third amended complaint, in which he renewed his due process challenge to the grievance procedures, raised access to the court allegations within his other causes of action, and, inter alia, alleged that defendants retaliated against plaintiff for filing grievances, based on various incidents from August 24, 2011, to December 8, 2013. On March 18, 2016, in a 31 page order, the court screened the pleading and found plaintiff raised allegations sufficient at least to state potentially cognizable claims for retaliation against defendants Surjick, Kong, Adams, and McHugh for their actions in February of 2012; and defendant Savage based on his actions in September of 2012. The court then considered whether to again grant plaintiff leave to amend, noting he had filed three prior pleadings (ECF Nos. 1, 11, 21), none of which alleged sufficient facts to state a cognizable civil rights claim. (ECF No. 28 at 28, citing Orders, ECF Nos. 7, 18, 24.) In addition, plaintiff failed to correct pleading deficiencies, despite multiple orders providing guidance. In the context of his access to the courts claim, the court noted plaintiff was granted multiple opportunities to demonstrate that he sustained an actual injury (ECF Nos. 7 at 4-5; 18 at 4). (ECF No. 28 at 9.) The court recommended that plaintiff's remaining claims and defendants be dismissed without prejudice, and without leave to amend. (ECF No. 28 at 29.)

         On May 5, 2016, the findings and recommendations were adopted in full, and plaintiff's remaining claims, including all claims against the remaining defendants were dismissed without prejudice. (ECF No. 31.) Plaintiff filed a motion to amend judgment, which the district court construed as a motion for reconsideration and, upon reconsideration, affirmed the May 5, 2016 order adopting the findings and recommendations. Plaintiff was advised that he could not change the nature of his pleading through objections to the findings and recommendations, but would have to file a motion to amend accompanied by a proposed amended pleading if he wished to again seek to amend his pleading. (ECF No. 44 at 3.) On January 12, 2017, plaintiff's motion for extension of time to file a fourth amended complaint was denied because plaintiff was not granted leave to file an amended pleading; rather, plaintiff was granted leave to file a motion to amend accompanied by a proposed amended pleading. Plaintiff was cautioned that the court was not inclined to permit amendment to revisit claims previously found not cognizable, and might be subject to sanctions if he re-alleged such claims. Plaintiff was reminded that he could not raise unrelated claims against newly-named individuals. (ECF No. 49 at 2-3.)

         On February 21, 2017, plaintiff filed a motion to amend, accompanied by his proposed fourth amended complaint.

         III. Request for Clarification

         To the extent that plaintiff seeks reconsideration of the court's March 18, 2016 screening order, plaintiff's request is denied. The district court previously reconsidered plaintiff's objections, and confirmed that this action proceeds on plaintiff's third amended complaint, which plaintiff conceded focused on his retaliation claims. (ECF No. 44 at 3.) Plaintiff was advised that he could not change the nature of his pleading through objections. Plaintiff's claims against the remaining defendants were dismissed without prejudice. (ECF No. 44 at 4.)

         In this request, plaintiff suggests that his habeas petition in Arceo v. King, No. 2:14-cv-2712 GEB DB (E.D. Cal.), was dismissed due to mailing and copying hardships. (ECF No. 57 at 7.) However, review of the court's docket reflects that the district court was required to abstain from hearing the petition based on Younger v. Harris, 401 U.S. 37 (1971), because SVPA proceedings were ongoing when petitioner filed the petition. King, No. 2:14-cv-2712 GEB DB (ECF Nos. 23 at 2; 27.) Moreover, court records confirm that plaintiff's civil rights complaint filed in Arceo v. State of California, No. 1:10-cv-2275 GBC, was dismissed at plaintiff's voluntary request.[2] Id.

         Also, in this request, plaintiff repeatedly claims jail officials “rejected a meaningful hearing.” (ECF No. 57 at 6, ¶¶ 13, 14, 16, 18.) It is not clear what plaintiff means by this statement. To the extent plaintiff argues he was not provided a “meaningful hearing, ” during the administrative exhaustion process, such argument is unavailing. As plaintiff was previously informed, he has no federal due process right to a particular grievance process. Thus, plaintiff cannot state a federal due process claim based on an alleged denial of a “meaningful hearing” in connection with any administrative appeal. Plaintiff may be entitled to a hearing in the context of disciplinary charges, but there are no allegations concerning such charges at issue here. To the extent plaintiff seeks to challenge a particular disciplinary hearing, or other specific deprivation for which he was denied a “meaningful hearing, ” he must bring such challenge in a separate civil rights action.

         Moreover, in this court's January 12, 2017 order, plaintiff was provided detailed guidance on how he could proceed if he again chose to attempt to amend his pleading. The court turns now to plaintiff's motion to file his fourth amended complaint.

         IV. Motion to Amend

         A. Legal Standards: Motion to Amend

         Because defendants have filed an answer, Rule 15(a)(2) governs plaintiff's motion to amend, as follows:

(2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.

Fed. R. Civ. P. 15(a)(2).

         “Rule 15(a) is very liberal and leave to amend ‘shall be freely given when justice so requires.'” AmerisourceBergen Corp. v. Dialysis West, Inc., 465 F.3d 946, 951 (9th Cir. 2006) (quoting Fed.R.Civ.P. 15(a)); accord Sonoma Cnty. Ass'n of Retired Emps. v. Sonoma Cnty., 708 F.3d 1109, 1117 (9th Cir. 2013). The court considers five factors when assessing the propriety of a motion for leave to amend: (1) bad faith, (2) undue delay, (3) prejudice to the opposing party, (4) futility of amendment, and (5) whether the plaintiff has previously amended his complaint. Allen v. City of Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990). The court “need not apply all five factors” when two factors sufficiently persuade the court to deny the motion. Id. Indeed, courts “need not grant leave to amend where the amendment: (1) prejudices the opposing party; (2) is sought in bad faith; (3) produces an undue delay in the litigation; or (4) is futile.” Amerisource Bergen Corp., 465 F.3d at 951; accord Sonoma Cnty. Ass'n of Retired Emps., 708 F.3d at 1117. “‘[P]rejudice to the opposing party carries the greatest weight.'” Sonoma Cnty. Ass'n of Retired Emps., 708 F.3d at 1117 (quoting Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (per curiam)). Leave to amend “is properly denied . . . if amendment would be futile.” Carrico v. City and Cnty. of San Francisco, 656 F.3d 1002, 1008 (9th Cir. 2011) (citing Gordon v. City of Oakland, 627 F.3d 1092, 1094 (9th Cir. 2010)). Further, “[a] party cannot amend pleadings to ‘directly contradict an earlier assertion made in the same proceeding.'” Air Aromatics, LLC v. Opinion Victoria's Secret Stores Brand Mgmt., Inc., 744 F.3d 595, 600 (9th Cir. 2014) (quoting Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir. 1990)).

         B. The Parties' Positions

         1. Plaintif ...


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