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Perez v. Ducart

United States District Court, N.D. California

July 29, 2019

MARCO A. PEREZ, Plaintiff,
C. E. DUCART, et al., Defendants.


          Beth Labson Freeman United States District Judge.

         Plaintiff, a state prisoner proceeding pro se, filed a complaint pursuant to 42 U.S.C. § 1983 against officials at the Pelican Bay State Prison (“PBSP”) challenging the imposition of a restitution fine. The Court found the amended complaint, (Docket No. 10), stated a cognizable due process claim and ordered the matter served on Defendants C. E. Ducart, B. Keevil, P. Badura, M. Townsend, and D. Bradbury.[1] (Docket No. 11.) Defendants filed a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure on the following grounds: the due process claim is barred by Heck v. Humphrey; the complaint fails to state a claim for due process against them; they are entitled to qualified immunity; the Eleventh Amendment bars the suit for official capacity damages; Plaintiff has not pleaded a claim for punitive damages; and Plaintiff is not entitled to either a preliminary or permanent injunction. (Docket No. 25, hereafter “Mot.”) Plaintiff filed opposition, (Docket No. 26), and Defendants filed a reply, (Docket No. 31).

         In support of their motion, Defendants filed a request for judicial notice, followed by an amended request, of the following documents: a copy of the abstract of judgment from the Los Angeles County Superior Court, No. A566957, People v. Perez, dated by the court as February 26, 1987, (Ex. A); copy of the minute entry order from the Los Angeles County Superior Court, No. A566967, People v. Perez, dated February 5, 1987, (Ex. B); and a copy of the decision issued by the California Court of Appeals, Second Appellate District, No. B026811, People v. Perez, dated November 1, 1990, (Ex. C). (Docket No. 29-1, Defs.'Amended Request for Judicial Notice (“RJN”).) The Court GRANTS the request for judicial notice of these documents because they are “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201(b)(2). Furthermore, these records are proceedings in other courts which have a direct relation to matters at issue. See Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (district court “may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue”). (internal quotation marks and citations omitted).

         Defendants argue in reply that Plaintiff's opposition should be stricken. (Reply at 2.) Local Rules 7-3(a) and 7-4(b) provide that a brief or memorandum contained in an opposition to a motion may not exceed 25 pages of text unless the Court has ordered otherwise at a party's request prior to the due date. (Reply at 2); Civil L.R. 7-3(a); Civil L.R. 7-4(b). Defendants argue that Plaintiff's opposition includes a memorandum or points and authorities that is 54 pages long, (Docket No. 26), and that Plaintiff did not request leave to exceed the page limit. (Id.) The Court agrees that Plaintiff's opposition far exceeds the 25-page limitation and is in violation of the local rules. However, in the interest of justice, the Court will accept the first 25 pages of the memorandum as Plaintiff's opposition and strike the rest.

         For the reasons set forth below, Defendants' motion to dismiss is GRANTED.


         A. Plaintiff's Claims

         Plaintiff is an inmate currently housed at PBSP, where the alleged events occurred. (Am. Compl. at 2.) Plaintiff has been incarcerated since October 28, 1984, and was convicted and sentenced on March 3, 1987. (Id. at 5.) Plaintiff claims that he has been housed in seven California state prisons, including PBSP, and that before July 10, 2014, no restitution fine was ever imposed. (Id.) Plaintiff claims that on July 10, 2014, Defendants imposed a $10, 000 restitution fine in violation of his due process rights and state regulations, and that he was not provided with proper notice. (Id. at 1, 4-5.) The allegations against the individual defendants include the following: Defendant Ducart “signed off” on the fine; Defendant Keevil failed to issue the “direct order” for the fine; Defendant Badura gave Plaintiff an “illegal minute order” and a notice that was not in compliance with state regulations; Defendant Townsend refused to remove the illegal fine; and Defendant Bradbury denied his inmate grievance appeal and allowed the fine to remain. (Id. at 2-3.) Plaintiff seeks declaratory relief, damages, including punitive, and injunctive relief. (Id. at 8-9.) Liberally construed, the Court found Plaintiff's allegations were sufficient to state a due process claim because the imposition of the restitution fine appeared to be predictable and pre-deprivation process was possible. (Docket No. 11 at 2-3.)

         B. Analysis

         Failure to state a claim upon which relief can be granted is grounds for dismissal under Rule 12(b)(6). Dismissal for failure to state a claim is a ruling on a question of law. See Parks School of Business, Inc., v. Symington, 51 F.3d 1480, 1483 (9th Cir. 1995). “The issue is not whether plaintiff will ultimately prevail, but whether he is entitled to offer evidence to support his claim.” Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987).

         “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, . . . a plaintiff's obligation to provide the ‘grounds of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.... Factual allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 553-56 (2007) (citations omitted). A motion to dismiss should be granted if the complaint does not proffer “enough facts to state a claim for relief that is plausible on its face.” Id. at 570. To state a claim that is plausible on its face, a plaintiff must allege facts that “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). From these decisions, the following “two principles” arise: “First to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of action but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively. Second, the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).

         Review is limited to the contents of the complaint, see Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994), including documents physically attached to the complaint or documents the complaint necessarily relies on and whose authenticity is not contested. See Lee v. County of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). In addition, the court may take judicial notice of facts that are not subject to reasonable dispute. See id. at 688 (discussing Fed.R.Evid. 201(b)). Allegations of fact in the complaint must be taken as true and construed in the light most favorable to the non-moving party. See Symington, 51 F.3d at 1484.

         1. Plaintiff's Objections in Opposition

         As an initial matter, the Court will address several objections made by Plaintiff in his opposition. Firstly, Plaintiff asserts that Defendants' counsel acted in bad faith by referencing incorrect dates in the two exhibits included with Defendants' motion to dismiss. (Opp. at 3-6.) Plaintiff asserts that Defendants' counsel should be sanctioned for acting in bad faith and for “willful abuse of the judicial processes.” (Id. at 6-7.) As noted above, Defendants subsequently filed an Amended Request for Judicial Notice along with a Notice of Errata, identifying the two errors in their original RJN request which are mentioned by Plaintiff. See ...

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