Vela v. County of Tulare Superior Court ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ISABEL VALDEZ VELA, Case No. 1:20-cv-01153-NONE-SAB 12 Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT COMPLAINT BE 13 v. DISMISSED FOR FAILURE TO STATE A CLAIM AND ACTION BE DISMISSED 14 COUNTY OF TULARE SUPERIOR FOR FAILURE TO STATE A CLAIM, COURT, FAILURE TO COMPLY WITH COURT 15 ORDER, AND FAILURE TO PROSECUTE Defendant. 16 (ECF Nos. 1, 4) 17 OBJECTIONS DUE WITHIN THIRTY DAYS 18 19 I. 20 BACKGROUND 21 Isabel Valdez Vela, proceeding pro se and in forma pauperis, filed this civil rights action 22 pursuant to 42 U.S.C. § 1983. On August 25, 2020, Plaintiff’s complaint was screened and 23 found not to state a cognizable claim. (ECF No. 4.) Plaintiff was granted leave to file an 24 amended complaint within thirty days. (Id.) The order was returned by the United States Postal 25 Service noting “RTS, No Such Number, Unable to Forward.” On September 8, 2020, the order 26 was reserved at the address listed on Plaintiff’s complaint which included a suite number. 27 More than thirty days have passed and Plaintiff has not filed an amended complaint or otherwise responded to the September 8, 2020 order. For the reasons discussed below, the Court 1 recommends that the complaint in this action be dismissed for failure to state a claim and that 2 this action be dismissed for Plaintiff’s failure to file an amended complaint in compliance with 3 the September 8, 2020 order and failure to prosecute. 4 II. 5 SCREENING OF PLAINTIFF’S COMPLAINT 6 A. Screening Standard 7 Notwithstanding any filing fee, the court shall dismiss a case if at any time the Court 8 determines that the complaint “(i) is frivolous or malicious; (ii) fails to state a claim on which 9 relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from 10 such relief.” 28 U.S.C. § 1915(e)(2); see Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) 11 (section 1915(e) applies to all in forma pauperis complaints, not just those filed by prisoners); 12 Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2001) (dismissal required of in forma pauperis 13 proceedings which seek monetary relief from immune defendants); Cato v. United States, 70 14 F.3d 1103, 1106 (9th Cir. 1995) (district court has discretion to dismiss in forma pauperis 15 complaint under 28 U.S.C. § 1915(e)); Barren v. Harrington, 152 F.3d 1193 (9th Cir. 1998) 16 (affirming sua sponte dismissal for failure to state a claim). The Court exercises its discretion to 17 screen the plaintiff’s complaint in this action to determine if it “(i) is frivolous or malicious; (ii) 18 fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a 19 defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). 20 In determining whether a complaint fails to state a claim, the Court uses the same 21 pleading standard used under Federal Rule of Civil Procedure 8(a). A complaint must contain “a 22 short and plain statement of the claim showing that the pleader is entitled to relief. . . .” Fed. R. 23 Civ. P. 8(a)(2). Detailed factual allegations are not required, but “[t]hreadbare recitals of the 24 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 25 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 26 544, 555 (2007)). 27 In reviewing the pro se complaint, the Court is to liberally construe the pleadings and 1 94 (2007). Although a court must accept as true all factual allegations contained in a complaint, 2 a court need not accept a plaintiff’s legal conclusions as true. Iqbal, 556 U.S. at 678. “[A] 3 complaint [that] pleads facts that are ‘merely consistent with’ a defendant’s liability . . . ‘stops 4 short of the line between possibility and plausibility of entitlement to relief.’” Id. (quoting 5 Twombly, 550 U.S. at 557). Therefore, the complaint must contain sufficient factual content for 6 the court to draw the reasonable conclusion that the defendant is liable for the misconduct 7 alleged. Iqbal, 556 U.S. at 678. 8 B. Section 1983 9 Plaintiff brings this action against the County of Tulare Superior Court of California, 10 Visalia Division, alleging that she filed a set of complaints against the Porterville Police 11 Department and Judge Juliet Boccone which were never filed. The second set was filed and 12 never returned for proper service to the defendants but was forwarded to the attorney of record 13 for Judge Boccone. Plaintiff alleges violation of the Fourth Amendment claiming injuries of 14 fear, intimidation, neglect, invasion of privacy, and her right to be secure in her person and 15 belongings. Plaintiff is seeking monetary damages and injunctive relief. 16 Section 1983 provides a cause of action for the violation of a plaintiff’s constitutional or 17 other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 18 1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); 19 Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). To state a claim under section 1983, a 20 plaintiff is required to show that (1) each defendant acted under color of state law and (2) each 21 defendant deprived her of rights secured by the Constitution or federal law. Long, 442 F.3d at 22 1185 (9th Cir. 2006). There is no respondeat superior liability under section 1983, and 23 therefore, each defendant is only liable for his or her own misconduct. Iqbal, 556 U.S. at 677. 24 To state a claim, Plaintiff must demonstrate that each defendant personally participated in the 25 deprivation of his rights. Jones, 297 F.3d at 934. 26 Here, Plaintiff has not named any defendant other than the Tulare County Superior Court. 27 A local government unit may not be held responsible for the acts of its employees under a 1 691 (1978). Rather, a local government unit may only be held liable if it inflicts the injury 2 complained of through a policy or custom. Waggy v. Spokane County Washington, 594 F.3d 3 707, 713 (9th Cir. 2010). Plaintiff has failed to allege any facts that a custom or policy exists 4 that has violated her constitutional rights. 5 C. Fourth Amendment 6 Plaintiff alleges a violation of the Fourth Amendment. The Fourth Amendment provides 7 that ‘the right of the people to be secure in their persons, houses, papers, and effects, against 8 unreasonable searches and seizures, shall not be violated. U.S. Const. amend. IV. “[T]he Fourth 9 Amendment is enforceable against the States through the Fourteenth Amendment.” Camara v. 10 Mun. Court of City & Cty. of San Francisco, 387 U.S. 523, 528 (1967). “To establish a viable 11 Fourth Amendment claim, a plaintiff must show not only that there was a search and seizure as 12 contemplated by the Fourth Amendment, but also that said search and seizure was unreasonable 13 and conducted without consent.” Rakas v. Illinois, 439 U.S. 128, 143 (1978); United States v. 14 Rubio, 727 F.2d 786, 796–97 (9th Cir. 1983). 15 The claims Plaintiff raises in this action against the Superior Court do not allege a search 16 and seizure, and therefore, the Fourth Amendment is not implicated. Plaintiff has failed to state 17 a cognizable claim for violation of the Fourth Amendment. 18 D. Access to the Court 19 Here, Plaintiff appears to be asserting that the Superior Court is impeding her civil 20 actions against Judge Boccone and the Porterville Police Department by failing to provide her 21 with summonses. The Court takes judicial notice of the records of the Tulare County Superior 22 Court.1 The records of the Tulare County Superior Court show that Plaintiff has the following 23 cases that are currently pending: Vela v. Porterville Police Dept., Case No. VCU283115, filed 24 25 1 Under the Federal Rules a court may take judicial notice of a fact that is “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). Judicial 26 notice may be taken “of court filings and other matters of public record.” Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006); Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001). 27 Court records are available at https://efiling.tulare.courts.ca.gov/?q=node/349, search Vela, Isabel (last visited 1 June 8, 2020; Vela v. Porterville Police Dep’t, Case No. VCU 283113, filed June 8, 2020; Vela 2 v. Boccone, Case No. VCU283112, filed June 8, 2020; Vela v. Porterville Police Dep’t, Case 3 No. VCU283111, filed June 8, 2020; and Vela v. Porterville Police Dep’t, Case No. 4 VCU283110, filed June 8, 2020. The records show that in each case a fee waiver was granted, 5 and summonses were issued. In Vela v. Boccone, Case No. VCU283112, a demurrer was set for 6 hearing but has been vacated. On September 28, 2020, the matter was reassigned to a judge in 7 Kings County. In all other cases, a case management conference was set for October 13, 2020, 8 and has been continued to November 12, 2020 because Plaintiff failed to appear at the October 9 13, 2020 conference. 10 The Supreme Court has held that the right of access to the courts is a fundamental right 11 protected by the Constitution. Delew v. Wagner, 143 F.3d 1219, 1222 (9th Cir. 1998). “Access 12 to courts does not only protect one’s right to physically enter the courthouse halls, but also 13 insures that the access to courts will be ‘adequate, effective and meaningful.’ ” Swekel v. City of 14 River Rouge, 119 F.3d 1259, 1262 (6th Cir. 1997) (quoting Bounds v. Smith, 430 U.S. 817, 822 15 (1977)). To prevail the claim, a plaintiff must demonstrate that the defendant violated the right 16 of access to the courts by rendering “any available state court remedy ineffective.” Delew, 143 17 F.3d at 1222-23. 18 The Supreme Court has identified two types of access to the court claims. The first 19 category covers forward looking cases “where systemic official action frustrates a plaintiff or 20 plaintiff class in preparing and filing suits at the present time.” Christopher v. Harbury, 536 U.S. 21 403, 413 (2002). In these cases, the opportunity has not been lost for all time,” “but only in the 22 short term; the object of the denial-of-access suit, and the justification for recognizing that claim, 23 is to place the plaintiff in a position to pursue a separate claim for relief once the frustrating 24 condition has been removed.” Christopher, 536 U.S. at 413. The second category covers claims 25 “of specific cases that cannot now be tried (or tried with all material evidence), no matter what 26 official action may be in the future.” Id. at 413-414. The official acts claimed to have denied 27 access may allegedly have caused the loss or inadequate settlement of a meritorious case. Id. at 1 plaintiff must identify a nonfrivolous,’ ‘arguable’ underlying claim.” Id. at 415 (citing Lewis v. 2 Casey, 518 U.S. 343, 353, and n.3 (1996)). 3 Here, Plaintiff has failed to state a cognizable claim for relief because she has failed to 4 allege any facts regarding the underlying claims to demonstrate that she has a nonfrivolous, 5 arguable underlying claim. Further, the gravamen of Plaintiff’s complaint is that the Tulare 6 Superior Court is precluding her from litigating her claims against the Porterville Police 7 Department and Judge Boccone, a forward looking claim. Based on review of the records of the 8 Tulare County Superior Court, Plaintiff filed her civil actions in June of 2020, the Superior Court 9 issued summonses, and case management conferences were set in October of 2020, but have 10 been continued due to Plaintiff’s failure to appear. In Vela v. Boccone the matter was transferred 11 to a judge from Kings County. 12 Although Plaintiff contends that she is being frustrated from litigating her cases in the 13 state court, summonses have been issued and in each case, other than the case against Judge 14 Boccone, a case management conference has been continued to November 12, 2020 due to 15 Plaintiff’s failure to appear on October 13, 2020. Plaintiff has failed to allege any facts by which 16 the Court can reasonably infer that the Tulare County Superior Court is interfering with her right 17 to access the court. Plaintiff has failed to state a cognizable claim for denial of access to the 18 court. 19 E. Conclusion 20 The Court finds that Plaintiff’s complaint fails to state a cognizable claim against the 21 Tulare County Superior Court. 22 III. 23 FAILURE TO COMPLY 24 In the August 25, 2020 order finding that Plaintiff failed to state a cognizable claim, she 25 was ordered to file an amended complaint within thirty days to cure the deficiencies in the 26 August 17, 2020 complaint. (ECF No. 4 at 6.) More than thirty days have passed and Plaintiff 27 has failed to comply with or otherwise respond to the August 25, 2020 order. 1 Rules or with any order of the Court may be grounds for imposition by the Court of any and all 2 sanctions . . . within the inherent power of the Court.” The Court has the inherent power to 3 control its docket and may, in the exercise of that power, impose sanctions where appropriate, 4 including dismissal of the action. Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 5 2000); Ready Transp., Inc. v. AAR Mfg., Inc., 627 F.3d 402, 404 (9th Cir. 2010). 6 A court may dismiss an action based on a party’s failure to prosecute an action, failure to 7 obey a court order, or failure to comply with local rules. See, e.g. Ghazali v. Moran, 46 F.3d 52, 8 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 9 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order to file an amended 10 complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to 11 comply with local rule requiring pro se plaintiffs to keep court apprised of address); Malone v. 12 United States Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply 13 with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack 14 of prosecution and failure to comply with local rules). Where a plaintiff fails to file an amended 15 complaint after being provided with leave to amend to cure the failure to state a claim, a district 16 court may dismiss the entire action. Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005). 17 In determining whether to dismiss an action for failure to comply with a pretrial order, 18 the Court must weigh “(1) the public’s interest in expeditious resolution of litigation; (2) the 19 court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 20 policy favoring disposition of cases on their merits; and (5) the availability of less drastic 21 sanctions.” In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1226 22 (9th Cir. 2006); Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 23 1986). These factors guide a court in deciding what to do, and are not conditions that must be 24 met in order for a court to take action. In re Phenylpropanolamine (PPA) Products Liability 25 Litigation, 460 F.3d at 1226. 26 In this instance the public’s interest in expeditious resolution of the litigation and the 27 Court’s need to manage its docket weigh in favor of dismissal. Plaintiff’s complaint does not 1 deficiencies that were identified in her complaint within thirty days of September 8, 2020, the 2 date in which she was reserved with the August 25, 2020 order. Plaintiff has been provided with 3 the legal standards that would apply to her claims and the opportunity to file an amended 4 complaint. Plaintiff has neither filed an amended complaint nor otherwise responded to the 5 Court’s order. Plaintiff’s failure to comply with the orders of the Court hinders the Court’s 6 ability to move this action towards disposition, and indicates that Plaintiff does not intend to 7 diligently litigate this action. 8 Since it appears that Plaintiff does not intend to litigate this action diligently there arises a 9 rebuttable presumption of prejudice to the defendants in this action. In re Eisen, 31 F.3d 1447, 10 1452-53 (9th Cir. 1994). The risk of prejudice to the defendants also weighs in favor of 11 dismissal. 12 The public policy in favor of deciding cases on their merits is greatly outweighed by the 13 factors in favor of dismissal. It is Plaintiff’s responsibility to move this action forward. The 14 complaint filed in this action does not state a cognizable claim. This action can proceed no 15 further without Plaintiff’s cooperation and compliance with the order at issue, and the action 16 cannot simply remain idle on the Court’s docket, unprosecuted. In this instance, the fourth factor 17 does not outweigh Plaintiff’s failure to comply with the Court’s order. 18 Finally, a court’s warning to a party that their failure to obey the court’s order will result 19 in dismissal satisfies the “consideration of alternatives” requirement. Ferdik, 963 F.2d at 1262; 20 Malone, 833 at 132-33; Henderson, 779 F.2d at 1424. The Court’s August 25, 2020 order 21 requiring Plaintiff to file an amended complaint expressly stated: “If Plaintiff fails to file an 22 amended complaint in compliance with this order, the Court will recommend to the district judge 23 that this action be dismissed consistent with the reasons stated in this order.” (ECF No. 4 at 7.) 24 Thus, Plaintiff had adequate warning that dismissal of this action would result from her 25 noncompliance with the Court’s order and her failure to state a claim. 26 Accordingly, it is HEREBY RECOMMENDED that: 27 1. Plaintiff’s complaint, filed August 17, 2020, be DISMISSED for failure to state a 1 2. This action be DISMISSED for Plaintiffs failure to state a claim, failure to 2 comply with the August 25, 2020 order, and failure to prosecute. 3 This findings and recommendations is submitted to the district judge assigned to this 4 | action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within thirty (30) 5 | days of service of this recommendation, Plaintiff may file written objections to this findings and 6 | recommendations with the court. Such a document should be captioned “Objections to 7 | Magistrate Judge’s Findings and Recommendations.” The district judge will review the 8 | magistrate judge’s findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). 9 | Plaintiff is advised that failure to file objections within the specified time may result in the 10 | waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 11 | Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 12 B IT IS SO ORDERED. DAM Le 14 | Dated: _ October 19, 2020 Is UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28