(HC) Thomas v. Covello ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT EARL THOMAS, Case No. 2:21-cv-01121-WBS-JDP (HC) 12 Petitioner, FINDINGS AND RECOMMENDATIONS THAT RESPONDENT’S MOTION FOR 13 v. SUMMARY JUDGMENT BE GRANTED 14 PATRICK COVELLO, OBJECTIONS DUE IN FOURTEEN DAYS 15 Respondent. ECF No. 19 16 17 Petitioner Robert Earl Thomas, a state prisoner, filed a petition for a writ of habeas corpus 18 under 28 U.S.C. § 2254. Respondent moved to dismiss the petition, ECF No. 19, arguing that it 19 is time-barred and that petitioner is not entitled to equitable tolling based on mental impairment. I 20 converted that motion into one for summary judgment because it asked the court to consider 21 plaintiff’s medical records. ECF No. 26. After that conversion, petitioner filed an opposition, 22 ECF No. 29, and respondent filed a reply, ECF No. 32. After review of the pleadings, I 23 recommend that the motion for summary judgment be granted. 24 Legal Standards 25 Summary judgment is appropriate where there is “no genuine dispute as to any material 26 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Washington 27 Mutual Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir. 2011). An issue of fact is genuine 28 only if there is sufficient evidence for a reasonable factfinder to find for the non-moving party, 1 while a fact is material if it “might affect the outcome of the suit under the governing law.” 2 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Wool v. Tandem Computers, Inc., 818 3 F.2d 1422, 1436 (9th Cir. 1987). 4 Each party’s position must be supported by (1) citations to particular portions of materials 5 in the record, including but not limited to portions of depositions, documents, declarations, or 6 discovery; or (2) argument showing that the materials cited do not establish the presence or 7 absence of a genuine factual dispute or that the opposing party cannot produce admissible 8 evidence to support its position. See Fed. R. Civ. P. 56(c)(1) (quotation marks omitted). The 9 court may consider material in the record beyond that cited by the parties, but it is not required to 10 do so. See Fed. R. Civ. P. 56(c)(3); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 11 1031 (9th Cir. 2001); see also Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 12 2010). Given the liberal standard afforded pro se litigants and the prohibition against granting 13 summary judgment by default, I will take the whole record into consideration in evaluating 14 whether defendants are entitled to summary judgement.1 15 “The moving party initially bears the burden of proving the absence of a genuine issue of 16 material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To meet its burden, “the 17 moving party must either produce evidence negating an essential element of the nonmoving 18 party’s claim or defense or show that the nonmoving party does not have enough evidence of an 19 essential element to carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. 20 Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). If the moving party meets this 21 1 The advisory committee notes to the 2010 amendments to Rule 56(e) state that 22 “summary judgment cannot be granted by default even if there is a complete failure to respond to 23 the motion.” Fed. R. Civ. P. 56(e) (advisory committee notes to 2010 amendments). Instead, courts are permitted to consider a fact undisputed if it is not properly addressed or to grant 24 summary judgment if the motion and supporting materials show that the movant is entitled to it. See id. This discretion is particularly apposite in cases with prisoner litigants proceeding pro se, 25 since an unrepresented prisoner’s choice to proceed without counsel is often “less than voluntary,” and prisoners are subject to the “handicaps . . . [that] detention necessarily imposes 26 upon a litigant,” such as “limited access to legal materials . . . [and] sources of proof.” Jacobsen 27 v. Filler, 790 F.2d 1362, 1364-65, n.4 (9th Cir. 1986); see also Blaisdell v. Frappiea, 729 F.3d 1237, 1241 (9th Cir. 2013) (holding that courts have an “obligation to give a liberal construction 28 to the filings of pro se litigants”). 1 initial burden, the burden shifts to the non-moving party “to designate specific facts 2 demonstrating the existence of genuine issues for trial.” In re Oracle Corp. Sec. Litig., 627 F.3d 3 376, 387 (citing Celotex Corp., 477 U.S. at 323). While the non-moving party is not required to 4 establish a material issue of fact conclusively in its favor, it must at least produce “evidence from 5 which a jury could reasonably render a verdict in [its] favor.” Id. (citing Anderson, 477 U.S. at 6 252). The evidence must be viewed “in the light most favorable to the nonmoving party” and “all 7 justifiable inferences” must be drawn in favor of the non-moving party. Orr v. Bank of America, 8 NT & SA, 285 F.3d 764, 772 (9th Cir. 2002). 9 Analysis 10 The parties agree that, under the Anti-Terrorism and Effective Death Penalty Act, the time 11 for filing the instant petition expired on March 11, 2017, ECF Nos. 19 at 8 & 23 at 4-5, well 12 before its filing on June 24, 2021, ECF No. 1. The question is whether petitioner is entitled to 13 equitable tolling for that more-than-four-year period because of his alleged mental health 14 impairment. To warrant equitable tolling based on a mental health condition, a petitioner “must 15 show extraordinary circumstances, such as an inability to rationally or factually personally 16 understand the need to timely file, or a mental state rendering an inability personally to prepare a 17 habeas petition and effectuate its filing.” Orthel v. Yates, 795 F.3d 935, 938 (9th Cir. 2015). 18 Despite petitioner’s claims to the contrary, respondent’s medical records show that, despite being 19 diagnosed with schizophrenia, he never labored under the sort of extraordinary circumstances that 20 would warrant equitable tolling. 21 As an initial matter, petitioner was committed to a mental health crisis bed only twice— 22 once from July 16 to July 27, 2016, and again on July 31, 2016. ECF No. 19-1 at 7, 10-11, 13, 23 100 & ECF No. 19-4 at 91. Elsewhere, medical records broadly indicate that his condition was 24 well-managed and that he was stable. Clinician notes from April 14, 2016, describe him as calm, 25 cooperative, and coherent. ECF No. 19-4 at 93. Notes from August 5, 2016, describe him as 26 “calm and cooperative” and “goal directed and logical.” Id. at 91. Those notes also emphasize 27 that between February 17, 2016, when petitioner was admitted to the custody of the California 28 Department of Corrections and Rehabilitation, and admission to the mental health crisis bed on 1 July 16, 2016, he was “stable and functioning well.” Id. Notes from September 27, 2017, state 2 that petitioner did not present with any unusual behaviors and was “programming without 3 difficulty.” ECF No. 19-2 at 10. Respondent provides numerous other examples of similar 4 clinical findings. See ECF No. 19 at 6-7. 5 For his part, petitioner emphasizes his placement in the Enhanced Outpatient Program 6 (“EOP”), prescription of psychotropic medication, and lack of awareness of the alleged error in 7 his sentence. ECF No. 29 at 2. But placement in EOP and being prescribed psychotropic 8 medication do not, in the face of clinician notes indicating that petitioner’s mental health was 9 stable, establish that his mental health prevented him either from understanding the need to file a 10 habeas corpus petition or from preparing such a petition. Mental health issues do not 11 automatically trigger tolling; equitable tolling comes into play only when a petitioner’s mental 12 health is “so debilitating that it is the but-for cause of the delay.” Yow Ming Yeh v. Martel, 751 13 F.3d 1075, 1078 (9th Cir. 2014). In Yow Ming Yeh, the Ninth Circuit described the type of 14 mental impairment that would justify tolling: 15 Our recent decision in Forbess v. Franke, No. 12-35843, 749 F.3d 837, 2014 U.S. App. LEXIS 7299 (9th Cir. Apr. 18, 2014), 16 illustrates the type of petitioner entitled to equitable tolling. There, the petitioner ‘believed he was working undercover for the FBI, and 17 his trial was a sham orchestrated to lure his ex-wife out of hiding and arrest her for being part of an extensive drug distribution 18 operation,’ and the ‘magistrate judge explicitly found that Forbess’s delusions persisted throughout the relevant [limitations] period.’ 19 20 Id. Neither Yeh nor petitioner demonstrated a mental impairment approaching this level.2 And a 21 lack of legal knowledge of the sort that petitioner suggests kept him from understanding the error 22 in his sentence does not entitle him to tolling. See Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th 23 Cir. 2006) (“We now join our sister circuits and hold that a pro se petitioner’s lack of legal 24 sophistication is not, by itself, an extraordinary circumstance warranting equitable tolling.”); 25 Baker v. Cal. Dep’t of Corr., 484 F. App’x 130, 131 (9th Cir. 2012) (“Low literacy levels, lack of 26 2 In his opposition, petitioner emphasizes that that schizophrenia is a “serious mental 27 disorder in which people interpret reality abnormally.” ECF No. 29 at 9. This is undoubtedly true but, as noted above, petitioner’s medical records do not indicate that he was so impaired as to 28 be unable to file or understand the need to file a habeas petition. 1 | legal knowledge, and need for some assistance to prepare a habeas petition are not extraordinary 2 || circumstances to warrant equitable tolling of an untimely habeas petition.”’). 3 Accordingly, I recommend that respondent’s motion to for summary judgment, ECF No. 4 | 19, be GRANTED and that the petition be dismissed as time-barred. 5 These findings and recommendations are submitted to the U.S. district judge presiding 6 || over the case under 28 U.S.C. § 636(b)(1)(B) and Local Rule 304. Within fourteen days of the 7 | service of the findings and recommendations, the parties may file written objections to the 8 | findings and recommendations with the court and serve a copy on all parties. That document 9 | must be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The 10 | presiding district judge will then review the findings and recommendations under 28 U.S.C. 11 | § 636)C)(C). 12 3 IT IS SO ORDERED. 14 ( ie — Dated: _ January 23, 2023 q-—— 15 JEREMY D. PETERSON 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28