Leonard Eugene Ward v. M. H. Valadez

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 LEONARD EUGENE WARD Case No.: 19cv1267-LAB (WVG)

12 Plaintiff,

ORDER OVERRULING

13 v. OBJECTIONS TO REPORT AND

RECOMMENDATION, AND

14 M. H. VALADEZ, et al.

ADOPTING REPORT AND

15 Defendants. RECOMMENDATION; AND

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ORDER GRANTING MOTION TO

17 DISMISS

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19 Plaintiff Leonard Eugene Ward, who is proceeding pro se, brings civil rights

20 claims under 42 U.S.C. §§ 1983 and 1985 and supplemental state claims arising

21 in connection with his previous incarceration. He originally filed his complaint in the

22 Central District of California, but the case was transferred to this Court on July 10,

23 2019. Shortly after the transfer, Defendants moved to dismiss, raising a statute of

24 limitations defense, among others. The motion was referred to Magistrate Judge

25 William Gallo for report and recommendation.

26 After receiving briefing, Judge Gallo issued his report and recommendation

27 (the “R&R”) on October 16, 2019, recommending that the motion be granted. Ward

28 filed written objections. (Docket no. 52.)

1 A district court has jurisdiction to review a Magistrate Judge's report and

2 recommendation on dispositive matters. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P.

3 72(b). “The district judge must determine de novo any part of the magistrate judge's

4 disposition that has been properly objected to.” Id. Section 636(b)(1) similarly

5 requires that a district judge “make a de novo determination of those portions of

6 the report or specified proposed findings or recommendations to which objection

7 is made.” “A judge of the court may accept, reject, or modify, in whole or in part,

8 the findings or recommendations made by the magistrate judge.” Id.

9 The Court has reviewed Ward’s objections, and has conducted a de novo

10 review of those portions of the R&R he specifically objected to.

11 Discussion

12 Ward’s objections focus on only a few portions of the R&R. For the most part,

13 he agrees with its factual findings and its statement of the law. The R&R correctly

14 sets forth the governing law on statutes of limitations, accrual of claims, and tolling,

15 as well as standards for dismissal based on a statute of limitations defense, which

16 the Court ADOPTS and does not repeat here. Although the R&R does not

17 specifically say so, the statute of limitations for Ward’s § 1985 claim is the same

18 as for his § 1983 claim. See McDougal v. Cnty. of Imperial, 942 F.2d 668, 673–74

19 (9th Cir. 1991). The R&R also provides a factual procedural history of the case, to

20 which Ward does not object. The Court modifies one portion of the R&R for clarity,

21 as discussed below. So modified, the Court also ADOPTS the R&R’s procedural

22 and factual findings. The following background is taken from that unobjected-to

23 portion of the R&R.

24 Defendant’s motion included requests for judicial notice. The R&R, without

25 expressly saying so, granted the request and relied on the noticed documents.

26 Ward did not object to this, and does not question the authenticity of any of the

27 documents. In fact, he cites and relies on them himself in his objections.

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1 In 2009, Ward was sentenced to a term of fifty years to life, and was

2 incarcerated in Centinela State Prison. In October of 2013, the California Superior

3 Court vacated his sentence. He was released from prison on July 21, 2015, but

4 now claims he should have been released in May of 2014.

5 Ward claims Defendants violated his rights by incarcerating him longer than

6 the law permitted. He alleges Defendants incorrectly calculated the time he should

7 have served, failing to give him credit for good time or work time; failing to give him

8 credit under California’s Three Strikes law, Penal Code § 667; and failing to

9 calculate properly the time he actually served. He also claims they retaliated

10 against him for filing a grievance while in prison, and violated his procedural rights

11 in various ways, and conspired to deprive him of his civil rights in violation of 42

12 U.S.C. § 1985.

13 In January of 2015, while he was still in prison, Ward filed an appeal seeking

14 relief from his continued detention. His petitions were denied at the third level of

15 review on July 31, 2015.

16 Ward also filed a series of claims with the California Victim Compensation

17 and Government Claims Board (VCGCB) beginning on April 7, 2015, for over-

18 detaining him. On April 21, 2015, the VCGCB told him his claim had not been

19 accepted because he had neither paid the filing fee nor requested a fee waiver.

20 On May 7, 2015 he resubmitted his claim with a fee waiver. On May 15, the

21 VCGCB denied any timely claims and advised him to file a late claim application

22 as to any late claims. On May 25, 2015, he resubmitted his claim. The VCGCB

23 acknowledged receipt of his claim, and agreed to treat it as a late claim. On July

24 21, 2015, the VCGCB sent him a notification that staff were recommending denial

25 of his claim. He was released that same day. The VCGCB formally denied him

26 leave to present a late claim on August 20, 2015 and also rejected the claim itself.

27 The VCGCB’s letter (Lodgment 47-1 at 21) dated August 28, 2015 notified him of

28 this, and told him that he would need to petition an appropriate court for an order

1 relieving him of Cal. Government Code § 945.4’s claims presentation requirement,

2 citing Cal. Govt. Code § 946.6. The VCGCB’s letters were addressed to Ward’s

3 mailing address as provided on his claim form. (See Lodgment 47-1 at 6.) Ward

4 then, represented by counsel, filed a second claim with a late application on

5 February 19, 2016. On April 21, 2016, the VCGCB notified him the staff was

6 recommending that the late claim petition be denied. The VCGCB formally denied

7 the late claim on May 19, 2016, and rejected the claim. (Lodgment 47-1 at 36.)

8 The notification letter, dated May 27, 2016, included the same advice about the

9 need to petition an appropriate court for relief from the claims presentation

10 requirement.

11 Still represented by counsel, Ward filed suit in the Central District against

12 various state government defendants in 16cv1582-BRO-SP, Ward v. Cal. Dept. of

13 Corr. & Rehabilitation, et al., (C.D. Cal., filed July 20, 2016).1 On June 9, 2017, he

14 asked the court to dismiss that case without prejudice because the complaint did

15 not name the proper defendants. (See Docket no. 33 in case 16cv1582-BRO-SP.)

16 The court granted the request for voluntary dismissal on June 14, 2017. (See

17 Docket no. 36 in case 16cv1582.) The R&R characterizes this case as unrelated,

18 which is true in a sense. That case and this were deemed administratively related.

19 In addition, Ward raised his over-incarceration claims in that case as well, albeit

20 against a completely different set of defendants.2 The R&R’s characterization of

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23 1 Ward alleges the basic facts of this filing and his voluntary dismissal. (Compl. at

1.) The Court has taken judicial notice of the docket in that case, as provided by

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Fed. R. Evid. 201(b), for the purpose of providing additional detail. See United

25 States v. Raygoza-Garcia, 902 F.3d 994, 1001 (9th Cir. 2018) (court may take

judicial notice of court records available through PACER). If Ward wishes to be

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heard on the propriety of the Court’s notice of the docket, he may file a request

27 within seven calendar days of the date this order is issued. See Fed. R. Evid.

201(e).

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1 the cases as unrelated should not be understood as saying the factual premises

2 of the cases are unrelated. This is important because Ward was on notice of

3 everything that happened in case 16cv1582, including the basis for the claims he

4 was attempting to raise there. It is also relevant that he was represented by counsel

5 in that case.

6 The R&R determined that Ward’s federal claims accrued, at the latest, on

7 July 21, 2015, when he was released from prison. As of that date, he was no longer

8 subject to the Prison Litigation Reform Act’s (PLRA’s) exhaustion requirements,

9 and was not subject to any of the other conditions that provide a basis for tolling

10 under California law. Ward objects to this for several reasons.

11 Ward disputes that as of the date he was released, he was no longer subject

12 to the PLRA, and argues that he was still required to exhaust his administrative

13 remedies even after being released. (Obj. at 8:1–9:25.) He argues that because

14 prison officials continued to review his request, and only finally denied it after his

15 release, he was still subject to exhaustion requirements and therefore entitled to

16 tolling.

17 This argument is based on a misunderstanding of the law. Only prisoners,

18 not former prisoners, are subject to the PLRA’s exhaustion requirement.

19 Talamantes v. Leyva, 575 F.3d 1021, 1024 (9th Cir. 2009). And under California

20 law, he is entitled to tolling only while he is in custody. See Ellis v. City of San

21 Diego, Cal., 176 F.3d 1183, 1189 (9th Cir. 1999) (holding that limitations period ran

22 from the date prisoner was released from custody). The fact that officials continued

23 to consider his appeal even after his release does not affect federal exhaustion

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the Warden of Centinela Prison (the head official) in both his individual and official

27 capacities. In this case, Ward has sued different officers at Centinela who he

believes were directly involved in violating his rights. The Defendants in this case

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1 requirements. And even supposing the objection were correct, it would not render

2 his claims timely, because his administrative claims were denied just ten days after

3 his release.

4 Ward also contends Defendants committed a continuing wrong by

5 unjustifiably withholding records pertaining to his administrative appeals,

6 preventing him from naming the proper defendants. He argues this either

7 prevented his claim from accruing, or entitles him to tolling. This argument is

8 meritless for several reasons. First, he knew he had filed administrative appeals,

9 and he was on notice of what he said in them. He obviously was aware of the

10 denials at the first and second level of review; otherwise, he would not have

11 continued to appeal. If, as he now implies, he did not receive the third level denial,

12 he was on notice that it was likely forthcoming. Furthermore, Ward has attached

13 the third level response as an exhibit to his complaint (Docket no. at 49–50) and it

14 is unremarkable. The response does not identify any Defendants, other than the

15 appeals examiner (Defendant Allen), and even then it does not suggest any basis

16 for holding Allen or anyone else liable. To the extent Ward thought he needed

17 some related records and did not receive them at the time, he could have

18 requested them. Moreover, in his first lawsuit he was represented by counsel who

19 could have asked for the records (if they were in fact necessary), or who could

20 even have sought discovery so they could name the correct defendants in an

21 amended complaint. And the notice of voluntary dismissal in June of 2017

22 recognizes that Ward hadn’t named the correct defendants and didn’t yet know

23 who (if anyone) was a proper defendant. (See Docket no. 33 in case 16cv15282.)

24 The facts cannot reasonably be construed to show that anyone concealed

25 documents or information from Ward, or otherwise prevented him from filing suit.

26 Ward does not allege he took any steps before March 14, 2018 to seek out

27 the records he now contends were wrongly withheld from him. Even in his

28 objections, he remains silent on that point. Instead, he argues the R&R incorrectly

1 placed the burden of pleading facts establishing tolling on him. But when, as here,

2 the running of the statute of limitations is apparent on the face of the complaint,

3 the burden of alleging facts to support tolling falls on the plaintiff. Hinton v. Pac.

4 Enters., 5 F.3d 391, 395 (9th Cir. 1993).

5 The R&R points out that Ward failed to comply with the California

6 Government Code’s requirements for bringing state law claims against public

7 officials or entities, giving another reason those claims were barred. Ward argues

8 that VCGCB letters were incorrectly mailed to his old prison address, apparently

9 suggesting that he had no notice of what they said. This is beside the point,

10 however, because later letters were sent to his attorney at the address the attorney

11 provided on the claim form. The final denial letter, which includes advice about the

12 petitioning requirement, was sent to his attorney on or around May 27, 2016. Under

13 Cal. Govt. Code §§ 945.4 and 950.2, Ward had six months from the date of denial

14 to file suit against public entities, or public employees acting within the scope of

15 their duties. Neither Ward nor his attorney decided to petition a court for relief from

16 the timeliness requirement, and Ward did not file this action until long after the six

17 month limitations period had passed.

18 The R&R also correctly determined that Ward’s voluntary dismissal of his

19 earlier case meant that it did not operate to toll any statutes of limitations. See

20 Jonson v. Riverside Healthcare Sys., 534 F.3d 1116, 1127 (9th Cir. 2008). While

21 Ward did not object to this, it is mentioned here for the sake of completeness.

22 The R&R recommended dismissal of the § 1985 claim because the § 1983

23 claim on which it was based was untimely, citing Thornton v. City of St. Helens,

24 425 F.3d 1158, 1168 (9th Cir. 2005). The holding of Thornton and of Caldeira v.

25 County of Kauai, 866 F.2d 1175, 1182 (9th Cir. 1989), which it relies on, appear to

26 focus on the factual basis for claims, as opposed to their timeliness. That being

27 said, Thornton and Caldeira probably apply with equal force where, as here, the

28 statute of limitations is the same for the § 1983 and § 1985 claims.

1 The § 1985 claim is also dismissed on the merits. Ward claims all

2 || Defendants conspired to obstruct justice, deny him equal protection, and deter him

3 vindicating his rights under the law. The motion to dismiss correctly cites the

4 ||applicable pleading standards, which Ward’s § 1985 claim fails to meet. The

5 |}complaint is devoid of factual allegations showing a conspiracy among

6 ||Defendants, and instead relies on highly generalized conclusions that. all

7 Defendants were conspiring together. See Olsen v. Idaho State Bd. of Medicine,

8 F.3d 916, 929 (9th Cir. 2004) (dismissal of § 1985 conspiracy claim proper

9 || where plaintiff failed to plead agreement among defendants adequately); Burns v.

10 || County of King, 883 F.2d 819, 821 (9" Cir. 1989) (“[T]he plaintiff must state specific

11 facts to support the existence of the claimed conspiracy.”) But granting Ward leave

12 ||to amend to re-plead would be futile, because his § 1985 claim is time-barred just

13 his § 1983 claims are.

14 ||Conclusion and Order

15 For these reasons, the Court OVERRULES Ward’s objections. With the

16 || modifications and additional discussion set forth above, the R&R is ADOPTED and

17 ||Defendants’ motion to dismiss is GRANTED. This action is DISMISSED WITH

18 || PREJUDICE.

19 IT IS SO ORDERED.

20 ||Dated: March 2, 2020

22 Honorable Larry Alan Burns

23 Chief United States District Judge

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