relief barred in suit for 14 injunctive relief against state official where there is “no claimed continuing violation 15 of federal law”
How later courts described this case
- relief barred in suit for 14 injunctive relief against state official where there is “no claimed continuing violation 15 of federal law”
- stating the “mailbox rule applies to § 1983 suits filed by pro se prisoners”
Written by the judges who cited it.
The opinion
Case 2:20-cv-04013-SB-MAR Document 65 Filed 08/10/22 Page 1 of 10 Page ID #:747
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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GERARD F. CELLETTE, Case No. 2:20-cv-04013-SB (MAR)
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Plaintiff, ORDER DISMISSING FIRST
9 AMENDED COMPLAINT WITH
v. LEAVE TO AMEND
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DALE POMERANTZ, ET AL.,
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Defendant.
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I.
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INTRODUCTION
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On June 7, 2022, Gerard Cellette (“Plaintiff”), proceeding pro se, constructively
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filed1 a First Amended Complaint (“FAC”) against Dale Pomerantz, Neil Chambers,
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Rhonda Skipper-Dota, M. Shimada, the Board of Parole Hearings (“BPH”) and Gavin
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Newsom (“Defendants”). ECF Docket No. (“Dkt.”) 63 at 4–5. For the reasons
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discussed below, the Court dismisses the FAC with leave to amend.2
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If Plaintiff desires to pursue this action, he is ORDERED to respond by
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no later than September 9, 2022, by choosing one of the three (3) options
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1 Under the “mailbox rule,” when a pro se inmate gives prison authorities a pleading to mail to
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court, the court deems the pleading constructively “filed” on the date it is signed. Roberts v.
25 Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010) (citation omitted); Douglas v. Noelle, 567 F.3d 1103,
1107 (9th Cir. 2009) (stating the “mailbox rule applies to § 1983 suits filed by pro se prisoners”).
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2 Defendants Chambers and Pomerantz have filed a “Request for Screening Plaintiff’s Amended
27 Complaint.” Dkt. 64. To the extent Defendants are requesting that the Court comply with its
statutory obligations under 28 U.S.C. § 1915, Defendants’ request is unnecessary. In any case,
28 because the Court is dismissing Plaintiff’s FAC with leave to amend, Defendants’ request is now
DENIED as moot.
Case 2:20-cv-04013-SB-MAR Document 65 Filed 08/10/22 Page 2 of 10 Page ID #:748
1 discussed in Part V, below. Further, Plaintiff is admonished that, if he fails to
2 timely respond, the Court will recommend that this action be dismissed without
3 further leave to amend and with prejudice for failure to state a claim and follow the
4 Court’s orders.
5 II.
6 SUMMARY OF THE COMPLAINT
7 Plaintiff successfully challenged his 2017 parole hearing and appeal in state
8 court. Dkt. 63 at 6. Specifically, the state court held that Plaintiff’s due process rights
9 were violated because the BPH had used a nonexistent parole standard to deny
10 Plaintiff’s parole. Id. On remand, Plaintiff again was denied parole under a newly
11 enacted standard. Id. at 6, 8.
12 In his FAC, Plaintiff alleges that Defendants conspired to retaliate and
13 discriminate against him during his second parole proceedings in violation of the First
14 and Fourteenth Amendments. Id. at 6–9, 16–23. Specifically, Plaintiff alleges the new
15 parole standard was enacted specifically to retaliate and discriminate against him after
16 he successfully challenged his first parole hearing, and that attorney M. Shimada
17 arbitrarily denied review of his parole in violation of Cal. Code Regs. Tit. 15 §
18 2449.7(c), which states that a “hearing officer, associate chief depute commissioner, or
19 Chief Hearing Officer” was required to deny review of his parole. Id. at 8. Plaintiff
20 also argues the parole standard used during his second parole proceedings is
21 unconstitutionally vague. Id. at 9.3
22 III.
23 STANDARD OF REVIEW
24 Where a plaintiff proceeds in forma pauperis, a court must screen the
25 complaint under 28 U.S.C. § 1915 and is required to dismiss the case at any time if it
26 concludes the action is frivolous or malicious, fails to state a claim on which relief may
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3 The Court has summarized Plaintiff’s parole proceedings in detail several times. See, e.g., dkt. 44
at 2–3.
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Case 2:20-cv-04013-SB-MAR Document 65 Filed 08/10/22 Page 3 of 10 Page ID #:749
1 be granted, or seeks monetary relief against a defendant who is immune from such
2 relief. 28 U.S.C. § 1915(e)(2)(B); see Barren v. Harrington, 152 F.3d 1193, 1194 (9th
3 Cir. 1998).
4 A claim should be dismissed under Rule 12(b)(6) if the plaintiff fails to proffer
5 “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550
6 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content
7 that allows the court to draw the reasonable inference that the defendant is liable for
8 the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
9 Dismissal for failure to state a claim can be warranted based on either a lack of
10 a cognizable legal theory or the absence of factual support for a cognizable legal
11 theory. See, e.g., Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th
12 Cir. 2008). A complaint may also be dismissed for failure to state a claim if it
13 discloses some fact or complete defense that will necessarily defeat the claim.
14 Franklin v. Murphy, 745 F.2d 1221, 1228–29 (9th Cir. 1984), abrogated on other
15 grounds by Neitzke v. Williams, 490 U.S. 319 (1989). Although the plaintiff must
16 provide “more than labels and conclusions,” Twombly, 550 U.S. at 555, “[s]pecific
17 facts are not necessary; the [complaint] need only give the defendant[s] fair notice of
18 what the . . . claim is and the grounds upon which it rests.” Erickson v. Pardus, 551
19 U.S. 89, 93 (2007) (per curiam) (citations and quotation marks omitted).
20 In considering whether a complaint states a claim, a court must accept as true
21 all of the material factual allegations in it. Hamilton v. Brown, 630 F.3d 889, 892–93
22 (9th Cir. 2011). However, a court need not accept as true “allegations that are merely
23 conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re
24 Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). The court must also
25 construe the pleading in the light most favorable to the pleading party and resolve all
26 doubts in the pleader’s favor. See, e.g., Berg v. Popham, 412 F.3d 1122, 1125 (9th Cir.
27 2005). Pro se pleadings are “to be liberally construed” and are held to a less stringent
28 standard than those drafted by a lawyer. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir.
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Case 2:20-cv-04013-SB-MAR Document 65 Filed 08/10/22 Page 4 of 10 Page ID #:750
1 2010) (“Iqbal incorporated the Twombly pleading standard and Twombly did not
2 alter courts’ treatment of pro se filings; accordingly, we continue to construe pro se
3 filings liberally when evaluating them under Iqbal.”).
4 If a court finds the complaint should be dismissed for failure to state a claim, a
5 court has discretion to dismiss with or without leave to amend. Lopez v. Smith, 203
6 F.3d 1122, 1126–30 (9th Cir. 2000) (en banc). Leave to amend should be granted if it
7 appears possible the defects in the complaint could be corrected, especially if the
8 plaintiff is pro se. Id. at 1130–31; see also Cato v. United States, 70 F.3d 1103, 1106
9 (9th Cir. 1995). However, if, after careful consideration, it is clear a complaint cannot
10 be cured by amendment, a court may dismiss without leave to amend. Cato, 70 F.3d
11 at 1105, 1107–11.
12 IV.
13 DISCUSSION
14 A. DEFENDANTS NEWSOM AND THE BPH ARE IMMUNE FROM
15 SUIT
16 1. Applicable law
17 “The Eleventh Amendment bars suits against state agencies.” See, e.g., Brown
18 v. Cal. Dep’t of Corrs., 554 F.3d 747, 752 (9th Cir. 2009) (California Department of
19 Corrections and California Board of Prison Terms entitled to 11th Amendment
20 immunity).
21 However, “[w]hen sued for prospective injunctive relief, a state official in his
22 official capacity is considered a ‘person’ for § 1983 purposes,” and the Eleventh
23 Amendment will not bar such relief. Flint v. Dennison, 488 F.3d 816, 824-25 (9th
24 Cir. 2007) (citation omitted). Accordingly, a suit for prospective injunctive relief
25 against a state employee in his official capacity may be cognizable when properly pled.
26 Doe v. Lawrence Livermore Nat. Lab., 131 F.3d 836, 839 (9th Cir. 1997); see also
27 Hason v. Med. Bd. of California, 279 F.3d 1167, 1171 (9th Cir. 2002) (“[T]he
28 Eleventh Amendment does not bar suits for prospective injunctive relief brought
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Case 2:20-cv-04013-SB-MAR Document 65 Filed 08/10/22 Page 5 of 10 Page ID #:751
1 against state officers ‘in their official capacities, to enjoin an alleged ongoing violation
2 of federal law.’”) (quoting Agua Caliente Band of Cahuilla Indians v. Hardin, 223 F.3d
3 1041, 1045 (9th Cir. 2000)).
4 The specific state official sued for prospective injunctive relief “must have
5 some direct connection with the enforcement of the [allegedly unconstitutional] act.”
6 Los Angeles Cnty. Bar Ass’n v. March Fong Eu, 979 F.2d 697, 704 (9th Cir. 1992)
7 (alteration in original; internal quotation marks omitted). “This connection must be
8 fairly direct; a generalized duty to enforce state law or general supervisory power over
9 the persons responsible for enforcing the challenged provision will not subject an
10 official to suit.” Planned Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908, 919
11 (9th Cir. 2004). Furthermore, for the “prospective injunctive relief” exception to the
12 Eleventh Amendment to apply, the plaintiff must establish a continuing violation of
13 federal law. Green v. Mansour, 474 U.S. 64, 73 (1985) (relief barred in suit for
14 injunctive relief against state official where there is “no claimed continuing violation
15 of federal law”).
16 2. Analysis
17 Plaintiff names Gavin Newsom and the BPH as Defendants. Dkt. 63 at 5.
18 Plaintiff does not allege or explain how Governor Gavin Newsom has any direct
19 connection to the alleged parole discrimination. Accordingly, claims against Gavin
20 Newsom must be dismissed. See Planned Parenthood of Idaho, Inc., 376 F.3d at 919.
21 With respect to the BPH, the BPH is a part of the CDCR, a state agency, and is
22 therefore immune under the Eleventh Amendment. Brown, 554 F.3d at 752.
23 In any amended complaint, Plaintiff should name only individual Defendants
24 who have a “direct connection” with the enforcement of Plaintiff’s allegedly
25 unconstitutional parole proceeding.
26 ///
27 ///
28 ///
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Case 2:20-cv-04013-SB-MAR Document 65 Filed 08/10/22 Page 6 of 10 Page ID #:752
1 B. PLAINTIFF HAS FAILED TO STATE A CLAIM AGAINST
2 DEFENDANTS POMERANTZ AND SKIPPER-DOTA
3 1. Applicable law
4 “Conspiracy is not itself a constitutional tort under § 1983.” Lacey v. Maricopa
5 Cnty., 693 F.3d 896, 935 (9th Cir. 2012). Rather, a conspiracy claim can “enlarge the
6 pool of responsible defendants by demonstrating their causal connections to the
7 violation[.] Id. In other words, alleging a conspiracy in § 1983 actions can: (1) “draw
8 in private parties who would otherwise not be susceptible to a § 1983 action because
9 of the state action doctrine” or (2) “aid in proving claims against otherwise tenuously
10 connected parties in a complex case.” Id. (internal citations omitted).
11 In order to state a claim for conspiracy under § 1983, a plaintiff must allege “an
12 agreement or ‘meeting of the minds’ to violate constitutional rights.” Franklin v. Fox,
13 312 F.3d 423, 441 (9th Cir. 2002) (citing United Steelworkers of America v. Phelps
14 Dodge Corp., 865 F.2d 1539, 1540–41 (9th Cir. 1989)). Importantly, a plaintiff must
15 also sufficiently allege an underlying constitutional violation. Hart v. Parks, 450 F.3d
16 1059, 1071 (9th Cir. 2006) (quoting Woodrum v. Woodward Cnty., Okl., 866 F.2d
17 1121, 1126 (9th Cir. 1989)).
18 “To be liable, each participant in the conspiracy need not know the exact
19 details of the plan, but each participant must at least share the common objective of
20 the conspiracy.” Franklin, 312 F.3d at 441 (quoting United Steelworkers, 865 F.2d
21 at 1541). This agreement or meeting of the minds may be inferred on the basis of
22 circumstantial evidence, such as the actions of the defendants. Mendocino Env’t Ctr.
23 v. Mendocino Cnty., 192 F.3d 1283, 1301 (9th Cir. 1999) (citation omitted). However,
24 conclusory allegations of conspiracy are not sufficient to support a claim under
25 § 1983. See Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980); see also Burns v.
26 Cnty. of King, 883 F.2d 819, 821 (9th Cir. 1989) (plaintiff must allege specific facts to
27 support claim of conspiracy to violate constitutional rights); Olsen v. Idaho State Bd.
28 of Med., 363 F.3d 916, 929 (9th Cir. 2004) (“[t]o state a claim for conspiracy to violate
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Case 2:20-cv-04013-SB-MAR Document 65 Filed 08/10/22 Page 7 of 10 Page ID #:753
1 constitutional rights, the plaintiff must state specific facts to support the existence of
2 the claimed conspiracy.”) (internal citations omitted).
3 2. Analysis
4 Here, Plaintiff alleges that “from the first parole hearing, the second parole
5 hearing to Shimada’s arbitrary denial of parole, all Defendants had a common
6 objective to deny Plaintiff’s rights under the laws and regulations.” Dkt. 63 at 19.
7 The thrust of Plaintiff’s retaliation and equal protection claims is that Defendants
8 retaliated and discriminated against him throughout his second parole proceedings
9 after he successfully challenged his first parole proceedings. Id. at 17–18. However,
10 Plaintiff only alleges that Defendants Pomerantz and Skipper-Dota were involved in
11 his first parole proceedings; Plaintiff does not allege either Defendant was involved in
12 the allegedly unconstitutional second parole hearing. See id. at 6, 8.
13 Nor does Plaintiff allege sufficient specific facts to infer an agreement amongst
14 Defendants Pomerantz, Skipper-Dota, and any other Defendant. To the extent any
15 agreement could be inferred from Plaintiff’s timeline of events, such an agreement
16 would not include Pomerantz and Skipper-Dota because their participation concluded
17 before the state court invalidated his first parole proceedings, and thus far before the
18 enacting of the new parole standard or any alleged retaliation and discrimination in
19 response to Plaintiff’s successful challenge to the first proceedings.
20 Accordingly, all claims against Newsom, the BPH, Pomerantz, and Skipper-
21 Dota are subject to dismissal.
22 V.
23 LEAVE TO FILE A SECOND AMENDED COMPLAINT
24 For the foregoing reasons, the FAC is subject to dismissal. As the Court is
25 unable to determine whether amendment would be futile, leave to amend is granted.
26 See Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam).
27 Accordingly, IT IS ORDERED THAT by September 9, 2022, Plaintiff
28 must choose one of the following three (3) options:
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Case 2:20-cv-04013-SB-MAR Document 65 Filed 08/10/22 Page 8 of 10 Page ID #:754
1
2 1. Plaintiff may file a Second Amended Complaint to attempt to cure the
3 deficiencies discussed above. If Plaintiff chooses to file a Second Amended
4 Complaint, he must clearly designate on the face of the document that it is the
5 “Second Amended Complaint,” it must bear the docket number assigned to this case,
6 and it must be retyped or rewritten in its entirety, preferably on the court-approved
7 form. Plaintiff shall not include new defendants or allegations that are not reasonably
8 related to the claims asserted in the FAC. In addition, the Second Amended
9 Complaint must be complete without reference to the Complaint, or any other
10 pleading, attachment, or document.
11 The Clerk of Court is directed to mail Plaintiff a blank Central District
12 civil rights complaint form to use for filing the Second Amended Complaint,
13 which the Court encourages Plaintiff to use. The Clerk of Court is also
14 directed to mail Plaintiff a copy of his FAC (Dkt. 63) for his reference.
15 Plaintiff is not required to omit any claim or defendant in order to pursue this
16 action. However, if Plaintiff decides to pursue a claim in a Second Amended
17 Complaint that this Court has found to be insufficient, then this Court, pursuant to
18 the provisions of 28 U.S.C. § 636, ultimately may submit to the assigned district judge
19 a recommendation that such claim be dismissed with prejudice for failure to state a
20 claim, subject to Plaintiff’s right at that time to file Objections with the district judge
21 as provided in the Local Rules Governing Duties of Magistrate Judges.
22 2. Alternatively, Plaintiff may file a notice with the Court that he intends to
23 stand on the allegations in his Complaint. If Plaintiff chooses to stand on the
24 Complaint despite the deficiencies in the claims identified above, then the Court will
25 submit a recommendation to the assigned district judge that the FAC be dismissed
26 with prejudice, subject to Plaintiff’s right at that time to file Objections with the
27 district judge as provided in the Local Rules Governing Duties of Magistrate Judges.
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1 3. Finally, Plaintiff may voluntarily dismiss the action without prejudice,
2 | pursuant to Federal Rule of Civil Procedure 41(a). The Clerk of Court is directed
3 | to mail Plaintiff a blank Notice of Dismissal Form, which the Court
4 | encourages Plaintiff to use if they choose to voluntarily dismiss the action.
6 Plaintiff is explicitly cautioned that failure to timely file a Second
7 | Amended Complaint will result in this action being dismissed with prejudice
8 | for failure to state a claim, or for failure to prosecute and/or obey Court orders
9 | pursuant to Federal Rule of Civil Procedure 41(b).
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11 | Dated: August 10, 2022 7 Ae
12 HONORABLE MARGO A. ROCCONI
B United States Magistrate Judge
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Case 2:20-cv-04013-SB-MAR Document 65 Filed 08/10/22 Page 10 of 10 Page ID #:756
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CASE NUMBER
Plaintiff(s),
v.
NOTICE OF DISMISSAL PURSUANT
TO FEDERAL RULES OF CIVIL
PROCEDURE 41(a) or (c)
Defendant(s).
PLEASE TAKE NOTICE: (Check one)
G This action is dismissed by the Plaintiff(s) in its entirety.
G The Counterclaim brought by Claimant(s) is
dismissed by Claimant(s) in its entirety.
G The Cross-Claim brought by Claimants(s) is
dismissed by the Claimant(s) in its entirety.
G The Third-party Claim brought by Claimant(s) is
dismissed by the Claimant(s) in its entirety.
G ONLY Defendant(s)
is/are dismissed from (check one)G Complaint, G Counterclaim, G Cross-claim, G Third-Party Claim
brought by .
The dismissal is made pursuant to F.R.Civ.P. 41(a) or (c).
Date Signature of Attorney/Party
NOTE: F.R.Civ.P. 41(a): This notice may be filed at any time before service by the adverse party of an answer or of a motion for
summary judgment, whichever first occurs.
F.R.Civ.P. 41(c): Counterclaims, cross-claims & third-party claims may be dismissed before service of a responsive
pleading or prior to the beginning of trial.
CV-09 (03/10) NOTICE OF DISMISSAL PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE 41(a) or (c)