Mark Moon v. County of Orange ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 22 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARK MOON; ROBERT RUIZ; GARY No. 20-56076
FIGUEROA; JONATHAN TIEU; JOHNNY
MARTINEZ; JULIO DORANTES; D.C. No.
WALTER COLE; RONALD MCGREGOR; 8:19-cv-00258-JVS-DFM
STEPHEN BARTOL, and others similarly
situated,
MEMORANDUM*
Plaintiffs-Appellants,
v.
COUNTY OF ORANGE, a Governmental
Entity; GTL, AKA GTL Holdings, Inc., A
Corporation; DOES, 1-500,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Submitted October 20, 2021**
Pasadena, California
Before: KLEINFELD, R. NELSON, and VANDYKE, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Appellants are inmates in Orange County jails. They appeal the district
court’s dismissal with prejudice of their final complaint, which was amended six
times, and the court’s denial of their motion to modify. Appellants sued Orange
County for alleged civil rights violations and COVID-related claims, as well as
Global Tel*Link Corporation (“GTL”), which provides telephone services in Orange
County’s correctional facilities, for recording pro se case-related and attorney-client
phone calls and sharing those calls with county prosecutors. We have jurisdiction
under 28 U.S.C. § 1291 and affirm.
1. The district court dismissed the claims against Orange County under
Federal Rule of Civil Procedure 8, and we review for abuse of discretion. McHenry
v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996). A district court should “consider the
strength of a plaintiff’s case . . . before determining whether dismissal with prejudice
is appropriate.” Id. at 1179 (citation omitted). Here, the district court considered the
strength of Appellants’ claims over the course of six complaints, multiple
applications for TROs, and other motions, before dismissing with prejudice. The
district court found that each version of the complaint was convoluted, conclusory,
and devoid of sufficient facts to support its pleadings. The complaint made general
statements asserting inmates’ rights but failed to sufficiently allege facts, damages,
and the relief sought. Appellants argue that the district court should have stricken
the noncompliant parts of their complaints rather than dismiss, but doing so would
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be impossible without forcing the court to construct their claims for them. See Indep.
Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003) (court cannot
“manufacture” arguments for appellants). The district court did not abuse its
discretion by dismissing under Rule 8. See id.
2. We review the district court’s order to strike claims against GTL for
abuse of discretion in striking Appellants’ claims against GTL. See Ready Transp.,
Inc. v. AAR Mfg., 627 F.3d 402, 403–04 (9th Cir. 2010). Appellants’ claims against
GTL included violations of the California Constitution, the California Invasion of
Privacy Act (“CIPA”), and common law for GTL’s role in recording Appellants’
phone calls. In a previous order, the district court dismissed with prejudice three
claims because the criminal defense attorneys did not have standing to assert their
clients’ attorney-client privilege. Appellants continued to bring these claims without
acknowledging that they had been dismissed with prejudice and did not timely
appeal the previous orders. “[W]ithout question, successive complaints based upon
propositions of law previously rejected may constitute harassment,” G.C. & K.B.
Invs. v. Wilson, 326 F.3d 1096, 1110 (9th Cir. 2003) (citation omitted), and the
district court did not abuse its discretion.
3. The district court dismissed the rest of the amended claims against GTL
for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). We
review de novo and affirm. Walker v. Beard, 789 F.3d 1125, 1131 (9th Cir. 2015).
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CIPA prohibits eavesdropping or recording, without permission and with an
electronic device, the conversations between a person in custody of law enforcement
and that person’s attorney, as well as the willful disclosure of telephone
communications by nonparties to those communications without permission. Cal.
Penal Code §§ 636–637.2; “If a call is determined to be an attorney and inmate
confidential phone call, in order for the inmate to place or receive the call it must
have already received approval or clearance . . . .” 15 Cal. Code Regs. § 3282(g).
The district court dismissed Appellants’ jail-call claims because they “did not
allege that prisoners whose phone calls were recorded had received approval for
those calls to be confidential under California regulations.” We agree that Appellants
failed to plead that these calls had been determined and approved by the defendants
to be calls that should be confidential. The only pleading that claimed to have
received permission from the defendants for jail calls to be on the “Do Not Record”
list was a stricken claim by one of the criminal-defense attorneys. Although the pro
se inmates asserted they had court orders permitting them to have confidential calls,
they did not provide the court orders. Further, Appellants never pled facts showing
that their specific attorney-client calls were shared with prosecutors. Appellants
failed to state a claim upon which relief could be granted, and without sufficient
pleading, we will not certify a question to the California Supreme Court.
4. The district court denied Appellants leave to amend, which we review
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for abuse of discretion. Walker, 789 F.3d at 1131. Though Appellants provide case
law that explains how a district court may abuse its discretion by denying leave to
amend, they do not explain how the district court here abused its discretion or how
they would remedy the defects if given yet another opportunity to amend. Their only
analysis is that “[l]eave to amend or severance might also be correct.” Thus,
Appellants abandoned their challenge to the denial of leave to amend by failing to
support it with argument and analysis. See Crime Just. & Am., Inc. v. Honea, 876
F.3d 966, 978–79 (9th Cir. 2017).
5. Finally, the district court denied Appellants’ motion to modify, which
asked the court to sever Appellants’ individual damage claims and to order Orange
County to post that it would provide religious access, reinstate family visits, and
improve its grievance system. We review the denial of a motion to alter or amend
judgment for abuse of discretion. EHM Prods. v. Starline Tours of Hollywood, Inc.,
1 F.4th 1164, 1170–71 (9th Cir. 2021). Appellants’ motion to modify sought to
appeal the dismissal with prejudice of Appellants’ complaint, as well as their
previous applications for temporary restraining orders, without argument or support.
The court ruled within its discretion.
AFFIRMED.
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