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Thomas v. Wilkinson

United States District Court, E.D. California

July 5, 2017

JOSH THOMAS, Plaintiff,
v.
WILKINSON, et al., Defendants.

         FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANT WILKINSON'S RULE 12(B)(6) MOTION TO DISMISS CASE AS BARRED BY STATUTE OF LIMITATIONS BE GRANTED, WITH PREJUDICE, AND THAT THIS DISMISSAL BE SUBJECT TO THE THREE-STRIKES PROVISION OF 28 U.S.C. § 1915(G) (ECF NO. 43.) OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN (14) DAYS

          GARY S. AUSTIN UNITED STATES MAGISTRATE JUDGE.

         I. BACKGROUND

         Josh Thomas (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on April 21, 2014, at the Fresno County Superior Court, case number 14CECG01710. (ECF No. 2, Exh. A.) On April 2, 2015, defendant Jasmine A. Tehrani removed the Complaint to federal court pursuant to 28 U.S.C. 1441(a). (ECF No. 2.)

         On October 5, 2015, the court screened Plaintiff's Complaint and found that it stated an Eighth Amendment claim and state law claims against defendants Jasmine A. Tehrani and Renee Wilkinson, Ph.D.[1] (ECF No. 30.)

         On August 29, 2016, defendant Tehrani filed a Rule 12(b)(6) motion to dismiss the claims against her on the grounds that: (1) Plaintiff's claims are barred by the applicable statute of limitations; (2) Plaintiff's claims are barred by the doctrine of res judicata; and (3) Plaintiff failed to exhaust his state law claims with the California Victim Compensation and Government Claims Board pursuant to the Tort Claims Act (Cal. Gov't Code §§ 810, 900-935.7). (ECF No. 31.) Also on August 29, 2016, defendant Tehrani filed a request for judicial notice in support of the motion to dismiss. (ECF No. 31-2.)

         On November 11, 2016, defendant Wilkinson filed a separate motion to dismiss under Rules 12(b)(1) and 12(b)(6), and also joined defendant Tehrani's motion to dismiss and request for judicial notice. (ECF No. 43.)

         On March 22, 2017, the court granted defendant Tehrani's motion to dismiss, thereby dismissing defendant Tehrani from this case. (ECF No. 54.) Therefore, defendant Wilkinson is now the sole defendant in this case, which now proceeds with the original Complaint against defendant Wilkinson on Plaintiff's Eighth Amendment deliberate indifference claim and related state claims. (Id.)

         On March 30, 2017, Plaintiff filed an opposition to defendant Wilkinson's motion to dismiss. (ECF No. 56.) On April 7, 2017, defendant Wilkinson filed a reply. (ECF No. 58.) Defendant Wilkinson's motion to dismiss is now before the court. Local Rule 230(l).

         II. SUMMARY OF PLAINTIFF'S ALLEGATIONS

         Plaintiff is currently incarcerated at the California Medical Facility in Vacaville, California. The events at issue occurred while Plaintiff was incarcerated at the California Substance Abuse Treatment Facility in Corcoran, California, in the custody of the California Department of Corrections and Rehabilitation.

         Plaintiff alleges that defendants Tehrani and Wilkinson refused to correct inaccurate information in Plaintiff's psychological evaluation report, which led to the repeated denial of his parole. Plaintiff points to the following portion of his evaluation report, which erroneously contains information about another inmate named Carranza (Inmate Carranza), discussing Inmate Carranza's history of violence and substance abuse:

Mr. Carranza's elevated “historical” variables included previous violence (i.e., life crime), and substance abuse problems (i.e., PCP abuse). There was one moderately elevated item on relationship instability. Given that the bulk of data contributing to this estimate is historical, then by definition, this score is not amenable to significant change regardless of the number of years of his incarceration.
In the “clinical” or more current and dynamic domain of risk assessment score, the inmate had one moderate elevation on lack of insight due to his problems with perceiving his flaws and failures and his tendency to divert responsibility to external events and others.

(ECF No. 2-1, at 17.)

         Plaintiff alleges that the Board of Parole Hearings (Board) and Plaintiff's attorney determined that the mistake caused serious prejudice at Plaintiff's parole hearing, and that the parole hearing scheduled for January 23, 2008, was postponed.

         Plaintiff alleges that he and the Board gave notice to defendant Tehrani, Senior Psychologist and defendant Wilkinson's supervisor, that defendant Wilkinson had made an erroneous reference to another inmate and inserted the other inmate's data into Plaintiff's evaluation. Plaintiff states that he requested that Inmate Carranza's information be removed from the report.

         On January 29, 2008, defendant Tehrani responded to Plaintiff's request, finding that the error did not invalidate the report. Defendant Tehrani said that the typing error had been corrected and a revised copy of the report had been submitted. She concluded, “The January 2008 Psychological Evaluation is valid and will serve as the evaluation on record at the time of the upcoming hearing. A new Psychological Evaluation is not warranted.”[2] (ECF No. 2-1, at 21.) Plaintiff alleges that defendant Wilkinson then generated the same report, and while she removed Inmate Carranza's name, Inmate Carranza's data was left in the report. The Board relied on this report to deny Plaintiff parole. Plaintiff alleges that each time he has a parole hearing, the Board reviews Inmate Carranza's data, causing Plaintiff to be denied a parole date.

         Moreover, as a result of the commingling of data, Plaintiff believes that the Board recommended mental health therapy for him. Plaintiff filed a grievance requesting such therapy, but the request was denied. (ECF No. 2-1, at 35-36.)

         Finally, Plaintiff contends that defendants Wilkinson and Tehrani not only falsified his psychological evaluation report, which the Board relied on to deny parole and order mental health therapy, but “knowingly, willingly and intentionally refused to generate a new Psychological Evaluation Report, ” despite a request by the Board and Plaintiff on two occasions. (ECF No. 2-1, at 8.)

         Based on these allegations, Plaintiff claims that his Fourth, Fifth, and Eighth Amendment rights were violated. He also alleges state law claims for negligence and “intentional tort, ” and alleges that Defendants falsified his report in violation of California Penal Code sections 133 and 134.

         Plaintiff requests $2, 500, 000 dollars in damages.

         On October 5, 2015, the court found that Plaintiff only stated an Eighth Amendment claim and state law claims for negligence and intentional infliction of emotional distress in the Complaint against defendants Wilkinson and Tehrani. (ECF No. 12 at 6 ¶D.)

         III. LEGAL STANDARDS

         A. Motion to Dismiss

         In considering a motion to dismiss, the court must accept all allegations of material fact in the complaint as true. Erickson v. Pardus, 551 U.S. 89, 93-94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007); Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740, 96 S.Ct. 1848, 48 L.Ed.2d 338 (1976). The court must also construe the alleged facts in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). All ambiguities or doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969). However, legally conclusory statements, not supported by actual factual allegations, need not be accepted. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949-50, 173 L.Ed.2d 868 (2009). In addition, pro se pleadings are held to a less stringent standard than those drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). “The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Scheuer, 416 U.S. at 236.

         B. Motion To Dismiss Under Rule 12(b)(1) - Subject Matter Jurisdiction

         Pursuant to Rule 12(b)(1), a party may move to dismiss based on the court's lack of subject-matter jurisdiction. See Fed.R.Civ.P. 12(b)(1). “A federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears.” Stoc ...


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