court may take judicial 28 notice of state agency records
How later courts described this case
- court may take judicial 28 notice of state agency records
- a court may take judicial notice of information on “publicly 27 accessible websites” not subject to reasonable dispute
- applying the mailbox rule to both state and federal filings by incarcerated inmates
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11 BRODERICK JAMES WARFIELD, No. 2:23-cv-1546 KJM DB P
12 Plaintiff,
13 v. ORDER AND FINDINGS AND
RECOMMENDATIONS
14 WALT TIBBET, et al.,
15 Defendants.
16
17 Plaintiff is a former1 state prisoner proceeding pro se with this civil rights action seeking
18 relief pursuant to 42 U.S.C. § 1983. Presently before the court is plaintiff’s motion to proceed in
19 forma pauperis (ECF No. 2), requests to submit sealed documents (ECF Nos. 9, 11), third
20 amended complaint (ECF No. 12), motion for discovery (ECF No. 13), and motion for a
21 temporary restraining order (ECF No. 14.). For the reasons provided below, the undersigned will
22 recommend that the third amended complaint be dismissed without leave to amend, and that
23 ////
24 1 In the third amended complaint, plaintiff states that he is a civilly committed detainee and a
convicted and sentenced state prisoner. (ECF No. 12 at 4.) According to California Department
25 of Corrections and Rehabilitation (CDCR) records, plaintiff is not currently in CDCR custody.
See https://inmatelocator.cdcr.ca.gov/Results.aspx. The court may take judicial notice of
26 information stored on the CDCR inmate locator website. See In re Yahoo Mail Litig., 7 F. Supp.
3d 1016, 1024 (N.D. Cal. 2014) (a court may take judicial notice of information on “publicly
27 accessible websites” not subject to reasonable dispute); Louis v. McCormick &Schmick
Restaurant Corp., 460 F. Supp. 2d 1153, 1155 fn.4 (C.D. Cal. 2006) (court may take judicial
28 notice of state agency records).
1 plaintiff’s motion to proceed in forma pauperis and motion for a temporary restraining order be
2 denied as moot. Plaintiff’s remaining motions and requests will be denied as moot.
3 SCREENING
4 I. Legal Standards
5 The court is required to screen complaints brought by prisoners seeking relief against a
6 governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. §
7 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims
8 that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be
9 granted, or that seek monetary relief from a defendant who is immune from such relief. See 28
10 U.S.C. § 1915A(b)(1) & (2).
11 A claim is legally frivolous when it lacks an arguable basis either in law or in fact.
12 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th
13 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an
14 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,
15 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully
16 pleaded, has an arguable legal and factual basis. See Franklin, 745 F.2d at 1227.
17 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain
18 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the
19 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell
20 AtlanticCorp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47
21 (1957)).
22 However, in order to survive dismissal for failure to state a claim a complaint must
23 contain more than “a formulaic recitation of the elements of a cause of action;” it must contain
24 factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic,
25 550 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the
26 allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S.
27 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all
28 doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).
1 The Civil Rights Act under which this action was filed provides as follows:
2 Every person who, under color of [state law] . . . subjects, or causes
to be subjected, any citizen of the United States . . . to the deprivation
3 of any rights, privileges, or immunities secured by the Constitution .
. . shall be liable to the party injured in an action at law, suit in equity,
4 or other proper proceeding for redress.
5 42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the
6 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See
7 Monell v. Dept. of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362
8 (1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the
9 meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or
10 omits to perform an act which he is legally required to do that causes the deprivation of which
11 complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
12 Moreover, supervisory personnel are generally not liable under § 1983 for the actions of
13 their employees under a theory of respondeat superior and, therefore, when a named defendant
14 holds a supervisorial position, the causal link between him and the claimed constitutional
15 violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979);
16 Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations
17 concerning the involvement of official personnel in civil rights violations are not sufficient. See
18 Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).
19 II. Allegations in the Complaint
20 Plaintiff initiated this action on July 24, 2023.2 (ECF No. 1 at 11.) The court will screen
21 plaintiff’s most recent pleading, the third amended complaint. (ECF No. 12.)
22 The third amended complaint names seven defendants: Walt Tibbet, former Chief of
23 Police of the Fairfield Police Department; Donald Dubain and Krishna Abrams of the Solano
24 County District Attorney’s Office; Elana D’Augustino and Oscar Bobrow of the Solano County
25 Public Defender’s Office; and Gagan Mall and Karen Phillips, mental health specialists at the
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2 Under the prison mailbox rule, a document is deemed served or filed on the date a prisoner signs
27 the document and gives it to prison officials for mailing. See Houston v. Lack, 487 U.S. 266, 276
(1988) (establishing the prison mailbox rule); Campbell v. Henry, 614 F.3d 105, 1059 (9th Cir.
28 2010) (applying the mailbox rule to both state and federal filings by incarcerated inmates).
1 Department of State Hospitals. (ECF No. 12 at 2–3.) According to plaintiff, in 2011, he called
2 the Fairfield Police Department to warn that a police officer would be murdered. (Id. at 4.) He
3 was subsequently arrested and arraigned for threatening a police officer. (Id.) While plaintiff
4 was in custody, a police officer in Vallejo was killed in the line of duty. (Id. at 4–5, 34.) Another
5 individual, Henry Albert Smith, was arrested and later convicted of the officer’s murder. (Id. at
6 34.) Plaintiff states that Smith was represented by the Solano County Public Defender’s Office.
7 (Id.)
8 Plaintiff further claims that, after completing his sentence in 2015, he gave a recorded,
9 sworn statement to Smith’s defense team. (Id.) However, the Solano County Public Defender’s
10 Office allegedly withheld plaintiff’s recorded statement from a special grand jury convened to
11 examine the officer’s murder. (Id.)
12 At a later, unspecified date, plaintiff was confined at Napa State Hospital, allegedly upon
13 the request of the Solano County Public Defender’s Office. (Id. at 43.) During his
14 hospitalization, plaintiff was forcibly medicated. (Id.) His remaining allegations are unclear, but
15 he claims that his confidential health information was published online in an article by
16 McNaughton Newspapers and suggests that this information was provided to the news outlet by
17 defendant Phillips. (Id.)
18 III. Failure to State a Claim
19 Examination of the third amended complaint and the court’s docket reveals that the third
20 amended complaint in this action contains allegations nearly identical to, and therefore
21 duplicative of, pleadings filed in Warfield v. Solano Public Defenders Offices, 2:22-cv-0782 TLN
22 JDP (E.D. Cal.). In that case, the court found that plaintiff’s operative complaint failed to state a
23 claim and that granting plaintiff leave to amend would not cure its deficiencies. (Warfield, 2:22-
24 cv-0782, ECF No. 31 at 4–5.) On February 16, 2023, it dismissed the operative complaint
25 without leave to amend. (Id., ECF No. 37.) Plaintiff filed an appeal, which was dismissed on
26 July 20, 2023. (Id., ECF Nos. 39, 45.) Plaintiff initiated the instant action on July 24, 2023.
27 (ECF No. 1 at 11.)
28 ////
1 “A complaint ‘that merely repeats pending or previously litigated claims’” is subject to
2 dismissal under 28 U.S.C. § 1915(e). Cato v. United States, 70 F.3d 1103, 1105 (9th Cir. 1995)
3 (quoting Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988)). “[A] duplicative action arising
4 from the same series of events and alleging many of the same facts as an earlier suit” may be
5 dismissed as frivolous or malicious under section 1915(e). See Bailey, 846 F.2d at 1021.
6 “Dismissal of the duplicative lawsuit, more so than the issuance of a stay or the enjoinment of
7 proceedings, promotes judicial economy and the ‘comprehensive disposition of litigation.’”
8 Adams v. California Dep’t of Health Servs., 487 F.3d 684, 692 (9th Cir. 2007) (citation omitted),
9 overruled on other grounds by Taylor v. Sturgell, 553 U.S. 880, 904 (2008).
10 To determine whether a claim is duplicative, courts use the test for claim preclusion.
11 Adams, 487 F.3d at 688. “Thus, in assessing whether the second action is duplicative of the first,
12 [courts] examine whether the causes of action and relief sought, as well as the parties or privies to
13 the action, are the same.” Id. at 689 (citations omitted). “Plaintiff’s generally have no right to
14 maintain two separate actions involving the same subject matter at the same time in the same
15 court and against the same defendant.” Id. at 688 (internal quotation marks and citations
16 omitted).
17 In the previous action, Warfield v. Solano Public Defenders Offices, 2:22-cv-0782 TLN
18 JDP, plaintiff sued several individuals, including the officials named as defendants in the instant
19 action. (Warfield, 2:22-cv-0782, ECF No. 30 at 5–6.) In each action, plaintiff alleges that he
20 warned the Fairfield Police Department that a police officer would be murdered, and that the
21 Department subsequently ignored his warning, leading to the officer’s death. (Warfield, 2:22-cv-
22 0782, ECF No. 30 at 9.) In both actions, he claims that the Solano County Public Defender’s
23 Office mishandled his recorded statement regarding the officer’s murder and blames the Office
24 for his forcible medication. (Id.) He also accuses staff at Napa Staff hospital of violating his
25 privacy rights. (Id. at 15, 17.)
26 For these reasons, the court finds that this action is duplicative of Warfield v. Solano
27 Public Defenders Offices, 2:22-cv-0782 TLN JDP, as it states the same allegations. Accordingly,
28 the third amended complaint should be dismissed.
1 LEAVE TO AMEND
2 The undersigned has carefully considered whether plaintiff may amend the complaint to
3 state a claim upon which relief can be granted. “Valid reasons for denying leave to amend
4 include undue delay, bad faith, prejudice, and futility.” California Architectural Bldg. Prod. v.
5 Franciscan Ceramics, 818 F.2d 1466, 1472 (9th Cir. 1988); see also Klamath-Lake Pharm. Ass’n
6 v. Klamath Med. Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that while leave to
7 amend shall be freely given, the court does not have to allow futile amendments). Here, as
8 discussed above, plaintiff has filed pleadings that are nearly identical to those dismissed in a
9 previous action. In that action, the court dismissed the operative complaint without leave to
10 amend because it determined that defendant had failed to state a cognizable claim and that
11 amendment would be futile. (Warfield v. Solano Public Defenders Offices, 2:22-cv-0782, ECF
12 Nos. 31, 37.) For these reasons, the undersigned finds that granting leave to amend the third
13 amended complaint in this action would be futile and recommends that the third amended
14 complaint be dismissed without leave to amend.
15 IN FORMA PAUPERIS
16 As stated above, plaintiff filed a request for leave to proceed in forma pauperis pursuant to
17 28 U.S.C. § 1915 along with the complaint. (ECF No. 2.) However, because the undersigned
18 recommends dismissal of this action without leave to amend, it is recommended that plaintiff’s
19 request to proceed in forma pauperis be denied as moot.
20 REQUESTS TO FILE SEALED A DOCUMENT
21 On August 7, 2023, plaintiff requested to file a Fairfield Police Department report as a
22 sealed document, pursuant to Local Rule 141. (ECF No. 9.) A week later, on August 14, he
23 submitted another request to submit the same document as an electronically sealed document.
24 (ECF No. 11.) He did not file a copy of the report with either request. As the undersigned
25 recommends dismissal of this action without leave to amend, plaintiff’s requests to file a sealed
26 document will be denied as moot.
27 ////
28 ////
1 MOTION FOR DISCOVERY
2 On August 30, 2023, plaintiff filed a motion for discovery, in which he sought access to
3 several documents in defendants’ possession, including the recorded statement he gave to Henry
4 Albert Smith’s legal team, copies of all signed contracts between plaintiff and an attorney at the
5 Solano County Public Defender’s Office, and the Fairfield Police Department report he sought to
6 file as a sealed document. (ECF No. 13.) The undersigned recommends dismissing this action
7 without leave to amend, and will therefore deny the motion for discovery as moot.
8 MOTION FOR TEMPORARY RESTRAINING ORDER
9 On September 9, 2023, plaintiff filed a motion for a temporary restraining order against all
10 defendants named in the third amended complaint. (ECF No. 14.) Plaintiff appears to request
11 that the court enjoin defendants from withholding the recorded statement he gave to Henry Albert
12 Smith’s defense team as Smith appeals his conviction, and to grant plaintiff leave to file a
13 complaint against defendants Mall and Phillips with the Psychiatric Medical Board of California.
14 (Id.)
15 “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on
16 the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the
17 balance of equities tips in his favor, and that an injunction is in the public interest.” Glossip v.
18 Gross, 576 U.S. 863, 876 (2015) (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20
19 (2008)). “[P]laintiffs must establish that irreparable harm is likely, not just possible, in order to
20 obtain a preliminary injunction.” All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th
21 Cir. 2011).
22 Here, the undersigned has recommended that this action be dismissed without leave to
23 amend. As such, plaintiff’s motion for a temporary restraining order (ECF No. 14) should be
24 denied as moot.
25 ////
26 ////
27 ////
28 ////
1 CONCLUSION
2 For the reasons set forth above, IT IS HEREBY ORDERED that:
3 1. Plaintiffs requests to file sealed documents (ECF Nos. 9, 11) are denied as moot; and
4 2. Plaintiff's motion for discovery (ECF No. 13) is denied as moot.
5 IT IS RECOMMENDED that:
6 1. Plaintiffs motion to proceed in forma pauperis (ECF No. 2) be denied as moot.
7 2. Plaintiffs third amended complaint (ECF No. 12) be dismissed without leave to
8 amend.
9 3. Plaintiff's motion for a temporary restraining order (ECF No. 14) be denied as moot.
10 These findings and recommendations are submitted to the United States Magistrate Judge
11 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty days
12 | after being served these findings and recommendations, plaintiff may file written objections with
13 | the court and serve a copy on all parties. Such a document should be captioned “Objections to
14 | Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file
15 | objections within the specified time may waive the right to appeal the District Court’s order.
16 | Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
17 | Dated: September 18, 2023
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0 ORAH BARNES
UNITED STATES MAGISTRATE JUDGE
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