Petition for Writ of Certiorari — David James Lack, Petitioner v. Dr. Posner, et al.

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Case: 23-55522, 05/23/2024, ID: 12886808, DktEntry: 37, Page 1 of 1

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FILED

MAY 23 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

DAVID JAMES LACK,

Plaintiff-Appellant,

No.

23-55522

D.C. No.

2:22-cv-02955-RGK-GJS

Central District of California,

Los Angeles

POSNER, Dr; et al.,

ORDER

Defendants-Appellees.

Before: CANBY, TASHIMA, and KOH, Circuit Judges.

The motion to file a substitute reply brief (Docket Entry No. 36) is granted.

The Clerk will file the reply brief submitted at Docket Entry No. 32.

Upon a review of the record and the parties’ filings in this court, we

conclude that the questions raised in this appeal are so insubstantial as not to

require further argument. See United States v. Hooton, 693 F.2d 857, 858 (9th Cir.

1982) (stating summary affirmance standard). Accordingly, the motion for

summary affirmance filed by appellees Koenig, Moeller, Posson (erroneously sued

as Dr. Posner), and Skipper-Dotta (Docket Entry No. 22) is granted.

We summarily affirm the district court’s judgment as to all parties.

AFFIRMED.

OSA145

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JS6

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

DAVID LACK,

Plaintiff

Case No. 2:22-cv-02955-RGK (GJS)

JUDGMENT

DR. POSNER, et al.,

Defendants.

Pursuant to the Order Accepting Findings and Recommendation of the United

States Magistrate Judge,

IT IS HEREBY ADJUDGED THAT the above-captioned action is dismissed

with and without prejudice as set forth in the foregoing Order.

DATE: June 1, 2023

UNITED STATES DISTRICT JUDGE

Cas i 2:22-cv-02955-RGK-GJS

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

DAVID LACK,

Plaintiff

DR. POSNER, et al.,

Defendants.

Case No. 2:22-cv-02955-RGK (GJS)

ORDER ACCEPTING FINDINGS

AND RECOMMENDATIONS OF

UNITED STATES MAGISTRATE

JUDGE

Pursuant to 28 U.S.C. § 636, the Court has reviewed the First Amended

Complaint [Dkt. 5], all relevant documents filed and lodged in this action, the

motion to dismiss filed by Defendants Judge Thomas P. Anderle, Judge Clifford R.

Anderson, III, Judge Michael Carrozzo, and Judge Jean M. Dandona [Dkt. 32,

“Judicial Defendants Motion”] and the related briefing and filings by the parties

[Dkts. 33, 58, and 61], the motion to dismiss filed by Defendant Robert Sanger

[Dkts. 41-42, “Sanger Motion”], the motion to dismiss filed by Defendants C.

Koenig, D. Moeller, S. Posson, and R. Skipper-Dota [Dkt. 51, the “CDCR Motion”]

and related briefing and filings by the parties [Dkts. 63, 66], the Report and

Recommendation of United States Magistrate Judge [Dkt. 68, “Report”], Plaintiffs

Objection to the Report [Dkt. 69], and Defendant Sanger’s Reply [Dkt. 71].

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Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b), the Court has

conducted a de novo review of those portions of the Report to which objections have

been stated.

The Court has carefully considered all of the arguments raised in the

Objection to the Report. Having completed its review, the Court accepts the

findings, conclusions, and recommendations set forth in the Report.

Accordingly, IT IS ORDERED that: the Judicial Defendants Motion, the

Sanger Motion, and the CDCR Defendants Motion are GRANTED; the First

Amended Complaint is dismissed without leave to amend and with prejudice as to

Claims I, II, III, V, and VI and Defendants Judge Thomas P. Anderle, Judge Clifford

R. Anderson, III, Judge Michael Carrozzo, Judge Jean M. Dandona, Robert Sanger,

Neil Levinson, C. Koenig, D. Moeller, S. Posson, and R. Skipper-Dota, and without

prejudice as to Claim IV and Defendants Brian Cota, Jeff Sanger, Santa Barbara

Sheriff Moennro [sic], CTF Prison Transportation, CTF Prison Doctor John Doe,

and two John Doe Defendants alleged to be Santa Barbara Sheriffs Department

Deputies; and Judgment shall be entered dismissing this action with and without

prejudice.

LET JUDGMENT BE ENTERED ACCORDINGLY.

DATE: June 1, 2023

UNITED STATES DISTRICT JUDGE

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

DAVID LACK,

Plaintiff

DR. POSNER, et al.,

Defendants.

Case No. 2:22-cv-02955-RGK (GJS)

REPORT AND

RECOMMENDATION OF

UNITED STATES

MAGISTRATE JUDGE

This Report and Recommendation is submitted to United States District Judge

R. Gary Klausner, pursuant to 28 U.S.C. § 636 and General Order No. 05-07 of the

United States District Court for the Central District of California.

BACKGROUND

On May 2, 2022, Plaintiff filed a pro se civil rights complaint against 12

named Defendants, along with a Doe Defendant. [Dkt. 1.] On June 18, 2022,

Plaintiff filed his First Amended Complaint, which is the operative complaint in this

action. [Dkt. 5, “Complaint.”] The Complaint names the same 12 Defendants as

before and the Doe Defendant, but also added a named sheriff Defendant and

several Doe Defendants. The Complaint asserts six claims under 42 U.S.C. § 1983.

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Some, but not all, of the Defendants thereafter were served with process. The

Fed. R. Civ. P. 4(m) deadline - as extended at Plaintiffs request - expired in

September 2022, and the following Defendants have not been served with process:

Brian Cota; Jeff Sanger; Santa Barbara Sheriff Moennro; CTF Prison

Transportation; CTF Prison Doctor John Doe; and two John Doe Defendants alleged

to be Santa Barbara Sheriffs Department Deputies (collectively, the “Unserved

Defendants”).

On September 14, 2022, Defendants Judge Thomas P. Anderle, Judge

Clifford R. Anderson, III, Judge Michael Carrozzo, and Judge Jean M. Dandona

(collectively, the “Judicial Defendants”)1 filed a motion to dismiss the Complaint

pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.

[Dkt. 32, “Judicial Defendants Motion.”] They also filed a concurrent Request for

Judicial Notice. [Dkt. 33, “Judicial Defendants Request.”]2 On December 26, 2022,

Plaintiff filed his Opposition to the Judicial Defendants Motion. [Dkt. 58.] On

January 3, 2023, the Judicial Defendants filed their Reply. [Dkt. 61.]

On October 4, 2022, Defendant Robert Sanger filed a motion to dismiss the

Complaint pursuant to Rule 12(b)(6). [Dkt. 41, “Sanger Motion.”] He also filed a

Request for Judicial Notice. [Dkt. 42, “Sanger Request.”]3 Plaintiff has not filed an

opposition to the Sanger Motion.

On November 18, 2022, Defendants Craig Koenig, S. Posson (mistakenly

sued as “Dr. Posner”), Ronda Skipper-Dotta, and Daniel Moeller (collectively, the

These four Defendants erroneously were named as “Justices” in the Complaint; however,

they are Judges of the Superior Court of California for the County of Santa Barbara.

The Judicial Defendants Request is GRANTED, as the subject items are court records of

which judicial notice properly may be taken under Fed. R. Evid. 201(b). See, e.g., 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, 689-90 (9th Cir. 2001).

The Sanger Request is GRANTED, as the subject items also are court records of which

judicial notice properly may be taken under Fed. R. Evid. 201(b).

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“CDCR Defendants”) filed a motion to dismiss the Complaint pursuant to Rule 8

and Rule 12(b)(6). [Dkt. 51, “CDCR Defendants Motion.”] On February 26, 2023,

Plaintiff filed his Opposition to the CDCR Defendants Motion. [Dkt. 63.] On

March 27, 2023, the CDCR Defendants filed their Reply. [Dkt. 66.]

All three Motions are under submission to the Court. For the reasons set forth

below, the Court recommends that the three Motions be granted, that the Complaint

be dismissed without leave to amend, and that this case be dismissed both with and

without prejudice (as explained below).4

STANDARD OF REVIEW

A. Rule 12(b)(1)

“Normally, [s]ubject-matter jurisdiction refers to the courts’ statutory or

constitutional power to adjudicate the case.. .. Under that general rule, when a

federal court... lacks subject-matter jurisdiction, the court must dismiss the

complaint, sua sponte if necessary.” Pistor v. Garcia, 791 F.3d 1104, 1110-11 (9th

Cir. 2015) (quotation marks and internal citations omitted). “Once challenged, the

party asserting subject matter jurisdiction has the burden of proving its existence.”

Rattlesnake Coal v. U.S. E.P.A., 509 F.3d 1095, 1102 n.l (9th Cir. 2007)

A Rule 12(b)(1) motion to dismiss either attacks the allegations of jurisdiction

contained in the complaint or challenges the pleaded factual basis for subject matter

jurisdiction. Thornhill Publishing Co. v. General Tel. & Elect. Corp., 594 F.2d 730,

Defendant Neil Levinson filed an Answer to the Complaint on September 9, 2022. [Dkt.

28.] As discussed infra, several of the grounds for dismissal discussed herein apply equally to

him, and thus, this case should be dismissed in full. See Abagninin v. AMVAC Chemical Corp.,

545 F.3d 733, 742 (9th Cir. 2008) (“As a legal matter, we have upheld dismissal with prejudice in

favor of a party which had not appeared, on the basis of facts presented by other defendants which

had appeared.”); Silverton v. Dep’t of Treasury, 644 F.2d 1341, 1345 (9th Cir. 1981) (holding that

a court “may properly on its own motion dismiss an action as to defendants who have not moved

to dismiss where such defendants are in a position similar to that of moving defendants or where

claims against such defendants are integrally related”).

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733 (9th Cir. 1979); see also White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000)

(“Rule 12(b)(1) jurisdictional attacks can be either facial or factual.”). “In a facial

attack, the challenger asserts that the allegations contained in a complaint are

insufficient on their face to invoke federal jurisdiction. By contrast, in a factual

attack, the challenger disputes the truth of the allegations that, by themselves, would

otherwise invoke federal jurisdiction.” Safe Air for Everyone v. Meyer, 373 F.3d

1035, 1039 (9th Cir. 2004). When a Rule 12(b)(1) motion constitutes a facial attack,

the Court must presume the factual allegations of the complaint to be true and

construe them in the light most favorable to the plaintiff. Wolfe v. Strankman, 392

F.3d 358, 362 (9th Cir. 2004). “With a factual Rule 12(b)(1) attack ..., a court may

look beyond the complaint to matters of public record without having to convert the

motion into one for summary judgment.” White, 227 F.3d at 1242. An action may

be dismissed for lack of subject matter jurisdiction, without leave to amend, when it

is clear that the jurisdictional deficiency cannot be cured by amendment. May Dep ’t

Store v. Graphic Process Co., 637 F.2d 1211, 1216 (9th Cir. 1980).

Based on the nature of the Judicial Defendants’ arguments, the Court

concludes that their Motion makes a facial Rule 12(b)(1) jurisdictional attack, rather

than a factual Rule 12(b)(1) jurisdictional attack.

Rule 12(b)(6)

A defendant is entitled to dismissal under Rule 12(b)(6) when a complaint

fails to state a cognizable legal theory or alleges insufficient facts under a

cognizable legal theory. Somers v. Apple, Inc., 729 F.3d 953, 959 (9th Cir. 2013).

“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, ‘to state a claim to relief that is plausible on its face.’” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) {quoting Bell Atlantic Corp. v. Twombly, 550 U.S.

544, 570 (2007)). A claim is facially plausible when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is

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liable for the misconduct alleged. Id. Conclusory allegations are insufficient. Id. at

678-79. Although a complaint need not set forth detailed factual allegations, “a

formulaic recitation of the elements of a cause of action will not do,” and the factual

allegations of the complaint “must be enough to raise a right to relief above the

speculative level.” Twombly, 550 U.S. at 555. In addition to appropriate factual

allegations, a complaint must include fair “notice of the claim such that the opposing

party may defend himself or herself effectively.” Starr v. Baca, 652 F.3d 1202,

1212 (9th Cir. 2011).

On review of a Rule 12(b)(6) motion, the Court accepts all facts alleged in a

complaint as true and draws all reasonable inferences in favor of the plaintiff. Gant

v. Cnty. ofL.A., 772 F.3d 608, 614 (9th Cir. 2014). For an allegation to be “entitled

to the assumption of truth,” however, it must be well-pleaded, that is, it must set

forth a non-conclusory factual allegation rather than a legal conclusion. Iqbal, 556

U.S. at 679. “In sum, for a complaint to survive a motion to dismiss, the non-

conclusory factual content, and reasonable inferences from that content, must be

plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret

Service, 572 F.3d 962, 969 (9th Cir. 2009) (internal quotation omitted).

C. Rule 8

Pursuant to Rule 8(a) of the Federal Rules of Civil Procedure, a complaint

must contain “a short and plain statement of the claim showing that the pleader is

entitled to relief’ and “a demand for the relief sought.” Further, Rule 8(d)(1)

requires that each allegation be “simple, concise, and direct.” Rule 8(a) “requires a

‘showing,’ rather than a blanket assertion, of entitlement to relief.” See Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 556 (2007). The plaintiff must allege a minimum

factual and legal basis for each claim that is sufficient to give each defendant fair

notice of what the plaintiffs claims are and the grounds upon which they rest. See,

e.g., Brazil v. United States Dep’t of the Navy, 66 F.3d 193, 199 (9th Cir. 1995)

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(“Although a pro se litigant like Brazil may be entitled to great leeway when the

court construes his pleadings, those pleadings nonetheless must meet some

minimum threshold in providing a defendant with notice of what it is that it

allegedly did wrong.”). “Experience teaches that, unless cases are pled clearly and

precisely, issues are not joined, discovery is not controlled, the trial court’s docket

becomes unmanageable, the litigants suffer, and society loses confidence in the

court's ability to administer justice.” Bautista v. Los Angeles Cnty., 216 F.3d 837,

841 (9th Cir. 2000) (citations and internal quotation marks omitted).

If a plaintiff fails to clearly and concisely set forth allegations sufficient to

provide defendants with notice of which defendant is being sued on which theory

and what relief is being sought against them, the complaint fails to comply with

Rule 8. See, e.g., McHenry v. Renne, 84 F.3d 1172, 1177-79 (9th Cir. 1996). When

a complaint is so confusing that its “‘true substance, if any, is well disguised,’” it

may be dismissed for violating Rule 8(a)(2). Hearns v. San Bernardino Police

Dep’t, 530 F.3d 1124, 1131 (9th Cir. 2008) (citation omitted)). The failure to

comply with Rule 8(a) constitutes an independent basis for dismissal of a complaint

that applies even if the claims in a complaint are not found to be wholly without

merit. See McHenry, 84 F.3d at 1179; Nevijel v. Northcoast Life Ins. Co., 651 F.2d

671,673 (9th Cir. 1981).

Amendment

It is well established that the Court has a duty to construe pro se filings

liberally. That said, the Court may not relieve pro se litigants entirely from their

obligation to comply with the Federal Rules of Civil Procedure, and the Supreme

Court has made it clear that the Court has “no obligation to act as counsel or

paralegal to pro se litigants.” Pliler v. Ford, 542 U.S. 225,231 (2004); see also Noll

v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987) (“courts should not have to

serve as advocates for pro se litigants” or as “legal advisors”). It has never been the

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Court’s function “to supervise laymen in the practice of law.” Springer v. Best, 264

F.2d 24, 26 (9th Cir. 1959). The Ninth Circuit explicitly has warned against

“becoming a player in the adversary process rather than remaining its referee.”

Jacobsen v. Filler, 790 F.2d 1362, 1365 (9th Cir. 1986) (“it is not for the trial court

to inject itself into the adversary process on behalf of one class of litigant”).

Moreover, a “pro se litigant is not excused from knowing the most basic pleading

requirements” or “from following court rules.” American Ass ’n ofNaturopathic

Physicians v. Hayhurst, 227 F.3d 1104, 1107 (9th Cir. 2000). Further, “a liberal

interpretation of a civil rights complaint may not supply essential elements of the

claim that were not initially pled.” Bruns v. Nat’l Credit Union Admin., 122 F.3d

1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. ofRegents, 673 F.2d 266, 268 (9th

Cir. 1982) and declining to “read numerous unalleged facts into [the] complaint in

order to find a” civil rights claim).

If a complaint is to be dismissed, “[u]nder Ninth Circuit case law, district

courts are only required to grant leave to amend if a complaint can possibly be

saved. Courts are not required to grant leave to amend if a complaint lacks merit

entirely.” Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000); see Rosati v.

Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should not dismiss

a pro se complaint without leave to amend unless ‘it is absolutely clear that the

deficiencies of the complaint could not be cured by amendment.’” (internal citations

and quotation omitted)). Leave to amend is not appropriate, even given the liberal

pleading standard for pro se litigants, when “the pleading ‘could not possibly be

cured by the allegation of other facts.’” Ramirez v. Galaza, 334 F.3d 850, 861 (9th

Cir. 2003) (internal quotation omitted).

III

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DISCUSSION

The Unserved Defendants And Claim IV Should Be Dismissed.

As noted above, there are seven Defendants who have never been served with

process. Claim IV of the Complaint is brought solely against three of the Unserved

Defendants, and the remaining Unserved Defendants are parties to Claims I, II, III,

and VI.

Rule 4(m) of the Federal Rules of Civil Procedure provides that, if service of

the summons and complaint is not made upon a defendant within 90 days of filing

the complaint, federal district courts have the authority to sua sponte dismiss an

action without prejudice, after notice to the plaintiff. See generally Crowley v.

Bannister, 734 F.3d 967, 975 (9th Cir. 2013). If, however, a plaintiff shows good

cause for the failure to serve the complaint within that time frame, the Court must

extend the time for accomplishing service. Fed. R. Civ. P. 4(m). The burden of

establishing good cause is on the plaintiff. Efaw v. Williams, Al?> F.3d 1038, 1040

(9th Cir. 2007). The “good cause” exception to Rule 4(m) applies “only in limited

circumstances” and is not satisfied by “inadvertent error or ignorance of the

governing rules.” Hamilton v. Endell, 981 F.2d 1062, 1065 (9th Cir. 1992). “Pro se

litigants must follow the same rules of procedure that govern other litigants.” King

v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987); see also Ghazali v. Moran, 46 F.3d 52,

53-54 (9th Cir. 1995) (per curiam) (failure ofpro se litigant to follow procedural

rules justified dismissal of civil rights action).

The Complaint was filed on June 18, 2022. Starting the 90-day clock from

the filing of the Complaint, the Rule 4(m) deadline expired in mid-September 2022.

Plaintiff twice requested extensions of the Rule 4(m) deadline to serve Defendant

Jeffrey Sanger with process, which the Court granted to him [Dkts. 21, 23, 26-27],

yet this Defendant has not been served with process. On September 23, 2022, the

Court expressly advised Plaintiff that his attempted service of Defendant Brian Cota

with process was ineffective [Dkt. 40], yet Plaintiff failed to thereafter request

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additional time in which to attempt to serve Cota properly. There is no evidence

that Plaintiff has served any of the remaining Unserved Defendants with process,

nor has he requested an extension of time to do so even though he plainly is aware

of the Rule 4(m) deadline.

Accordingly, the Unserved Defendants should be dismissed under Rule 4(m),

as should Claim IV in full given that it is not alleged against any Defendant who has

been served with process. This dismissal should be on a without prejudice basis.

This Report and Recommendation provides Plaintiff with the required notice,

because he has the right to file objections in response and the opportunity to

establish good cause for his failure to effect service of process, if he can.

II. The Judicial Defendants Motion

By way of background, in the Santa Barbara County Superior Court, Plaintiff

was charged with various crimes in two criminal cases: People v. Lack, Case No.

1335893 (“Case 1”); and People v. Lack, Case No. 1446497 (“Case 2”). Case 1 was

commenced on August 31, 2010, and Petitioner’s jury trial began on July 7, 2014.

Defendant Judge Dandona was the trial judge, Unserved Defendant Cota was the

prosecutor, and Defendant Robert Sanger was Plaintiffs counsel. [Judicial

Defendants Request, Ex. 1 at 1, 26-35.] On August 7, 2014, the jury convicted

Plaintiff of one count of grand theft by embezzlement from an individual and two

counts of grand theft by false pretenses from two banks. Plaintiff was sentenced to a

term of nine years and eight months in state prison. [Id., Ex. 1 at 35; Ex. 2 at 1.]

Plaintiff appealed, and on June 15, 2016, the California Court of Appeal affirmed

the judgment. The remittitur issued on September 2, 2016. [Id, Ex. 1 at 43; Ex. 2,

passim.]

Case 2 was commenced on June 20, 2014. Unserved Defendant Cota again

was the prosecutor. [Judicial Defendants Request, Ex. 3 at 1.] On December 13,

2018, before Defendant Judge Carrozzo, Plaintiff entered a plea of nolo contendere

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to multiple counts of tax evasion, grand theft, and using a false contractor’s license,

and he then was convicted and sentenced. [Id., Ex. 3 at 4-9, 38.] No appeal ensued

and the judgment is final. [Id., Ex. 3 at 39-40.]

The four Judicial Defendants are sued only pursuant to Claims III and V of

the Complaint. In Claim III, Plaintiff alleges that Unserved Defendant Cota and

Defendants Judge Anderle, Judge Anderson, and Judge Carrozzo violated his Fifth

Amendment right against double jeopardy, his Sixth Amendment right to a speedy

trial, and his Fourteenth Amendment rights to due process and equal protection by

failing to bring Case 2 to trial by December 30, 2015, and not thereafter dismissing

Case 2 as a result of that speedy trial violation. [Complaint at 12-14.] In Claim V,

Plaintiff sues Defendants Judge Anderle, Judge Dandona, Robert Sanger, and Neil

Levinson.5 Plaintiff alleges that, in connection with Case 1, Judge Dandona violated

due process by failing to rule on a Kellett motion6 brought by counsel Sanger.

Plaintiff alleges that Judge Anderle violated unspecified rights by denying the

Kellett motion when it was made again during Case 2. Plaintiff further alleges that

Defendants Sanger and Levinson provided ineffective assistance, apparently in

connection with the Kellett motion, although this is unclear given the barebones

allegations of Claim V. [Complaint at 17-19.]

The Judicial Defendants raise four grounds for dismissing this action. First,

they assert that the Court lacks jurisdiction to hear the claims asserted against them,

because the claims are barred by the Rooker-Feldman doctrine, as discussed infra.

Second, they assert that the judicial immunity doctrine bars the claims against them.

Third, the Judicial Defendants assert that the applicable statute of limitations bars

Case 2.

Plaintiff alleges that Sanger was his counsel in Case 1 and Levinson was his counsel in

In brief, following the adjudication of one criminal case, a Kellett motion seeks to preclude

a successive prosecution for criminal conduct that allegedly should have been part of the prior

case. See Kellett v. Superior Court, 63 Cal. 2d 822 (1966).

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Plaintiffs claims against them. Fourth, they assert that the claims against them are

barred by the Heck doctrine, as discussed infra, and more generally, fail to state a

claim upon which relief can be granted. The Court declines to resolve the statute of

limitations and failure to state a claim grounds raised by the Judicial Defendants,

because it need not do so given that there are several other fatal defects that plainly

doom Claims III and V, as discussed below.

A. Rooker-Feldman

The Rooker-Feldman doctrine provides that federal district courts may

exercise only original jurisdiction; they may not exercise appellate jurisdiction over

lower court decisions. See District of Columbia Court ofAppeals v. Feldman, 460

U.S. 462, 482, 482-86 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 416

(1923). The doctrine applies to “cases of the kind from which the doctrine acquired

its name: cases brought by state-court losers complaining of injuries caused by state-

court judgments rendered before the district court proceedings commenced and

inviting district court review and rejection of those judgments.” Exxon Mobil Corp.

v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005). “The purpose of the doctrine

is to protect state judgments from collateral federal attack.” Doe & Assocs. Law

Offices v. Napolitano, 252 F.3d 1026, 1030 (9th Cir. 2001).

“If a federal plaintiff asserts as a legal wrong an allegedly erroneous decision

by a state court, and seeks relief from a state court judgment based on that decision,

Rooker-Feldman bars subject matter jurisdiction in federal district court.” Noel v.

Hall, 341 F.3d 1148, 164 (9th Cir. 2003); see also Kougasian v. TMSL, Inc., 359

F.3d 1136, 1139-40 (9th Cir. 2004) (the doctrine bars a de facto appeal from a state

court judgment). “This doctrine applies even when the challenge to the state court

decision involves federal constitutional issues.” Worldwide Church of God v.

McNair, 805 F.2d 888, 891 (9th Cir. 1986) (citations omitted). A federal district

court may not examine claims that are inextricably intertwined with state court

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decisions, “even where the party does not directly challenge the merits of the state

court’s decision but rather brings an indirect challenge based on constitutional

principles.” Bianchi v. Rylaarsdam, 334 F.3d 895, 900 n.4 (9th Cir. 2003); see also

Ignacio v. Judges ofU.S. Court ofAppeals, 453 F.3dl 160, 1165—66 (9th Cir. 2006)

(affirming district court’s dismissal of the case “because the complaint is nothing

more than another attack on the California superior court’s determination in

[plaintiffs] domestic case”).

Claims III and V directly attack state court rulings. In Claim III, Plaintiff

alleges that he exercised his speedy trial rights by asking that Case 2 be brought to

trial by a certain date, the trial court failed to do so, the trial court thereafter failed to

dismiss the case as Plaintiff believes was required, and this violated his federal

constitutional rights to a speedy trial, due process, and equal protection, and to avoid

being placed in double jeopardy. In Claim V, Plaintiff alleges that the state courts

erred in failing to grant his Kellett motion made in both Case 1 and Case 2. As

relief, Plaintiff asks that he be given a new trial in Case 1 due to the failure to rule

on and grant the Kellett motion and that his nolo contendere plea in Case 2 be

overturned. [Complaint at 22.] These are classic example of claims barred by the

Rooker-Feldman doctrine. As a result, the Court lacks jurisdiction to consider them

as to the Judicial Defendants and dismissal under Rule 12(b)(1) is required.7 As this

The Rooker-Feldman doctrine may not bar Claim V as alleged against Defendants Robert

Sanger and Neil Levinson, because as to them, Plaintiff alleges ineffective assistance rather than

legal error by the state courts. See Kougasian, 359 F.3d at 1139-40. That said, as discussed

below, there is a non-rectifiable defect in Claim V as to these Defendants that requires its

dismissal against them without leave to amend. In addition, as to Claim III, prosecutorial

immunity bars the claim as to Unserved Defendant Cota. See, e.g., Imbler v. Pachtman, 424 U.S.

409, 430-31 (1976) (prosecutors are entitled to absolute immunity from suit under Section 1983

for conduct that is “intimately associated with the judicial phase of the criminal process”); see also

Butz v. Economou, 438 U.S. 478, 512 (1977). Claim Ill’s allegations against Cota are predicated

solely on his prosecutorial decisions and actions, and these decisions and actions plainly constitute

an integral part of the judicial process to which absolute immunity adheres. Thus, both Claim III

and Claim V should be dismissed in full.

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defect is non-rectifiable, the dismissal should be without leave to amend and with

prejudice as to the Judicial Defendants.

B. Judicial Immunity

It is well established that “[ajbsolute judicial immunity ‘insulates judges from

charges of erroneous acts or irregular action.’” Burton v. Infinity Capital Mgmt.,

753 F.3d 954, 959 (9th Cir. 2014) (citation omitted). Absolute immunity not only

insulates judges from charges of erroneous or irregular acts but also when the

judge’s acts are alleged to be attributable to malicious or corrupt motives or when

“the exercise of judicial authority is ‘flawed by the commission of grave procedural

errors.’” In re Castillo, 297 F.3d 940, 946 (9th Cir. 2002) (quoting Stump v.

Sparkman, 435 U.S. 349, 359 (1978)); see also Mireles v. Waco, 502 U.S. 9, 11

(1991) (per curiam). Judicial immunity applies “‘however erroneous the act may

have been, and however injurious in its consequences it may have proved to the

plaintiff.’” Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986) (en banc)

(citation omitted). This absolute immunity protects judges from civil actions for

money damages, although “judicial immunity does not bar declaratory or injunctive

relief in actions under § 1983.” Mullis v. United States Bankruptcy Court for the

Dist. OfNevada, 828 F.2d 1385, 1391 (9th Cir. 1987); see also Pulliam v. Allen, 466

U.S. 522, 541042 (1984). Actions against judicial officers for declaratory or

prospective injunctive relief are barred, however, when the subject criminal

proceedings are over. Ashelman, 793 F.2d at 1075.

Plaintiffs claims against the Judicial Defendants arise solely out of their

judicial acts presiding over Case 1 and Case 2. Plaintiffs characterization of these

judicial acts as wrongful and/or constitutionally violative is ineffective to take them

outside of the absolute immunity that cloaks them.8 Plaintiffs reliance on Hafer v.

In his Opposition to the Motion, Plaintiff alleges additional wrongful and/or

unconstitutional acts committed by the Judicial Defendants. These allegations are not contained in

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Melo, 502 U.S. 21 (1991), is misplaced, as that decision involved the issue of

Eleventh Amendment immunity as to a state official sued under Section 1983 in his

or her official capacity, not the distinct common law doctrine of judicial immunity.

Plaintiffs reliance on 18 U.S.C. § 242 is equally misplaced. That a judge can be

criminally prosecuted under that federal criminal statute is irrelevant to the question

of his or her immunity in a civil Section 1983 action for damages. See Dennis v.

Sparks, 449 U.S. 24, 29 n.5 (1980) (“A state judge can be found criminally liable

under § 242 although that judge may be immune from damages under § 1983.”).

Plaintiff also is mistaken in believing that judicial immunity does not apply to

Section 1983 claims due to Section 1983’s exclusionary language reading “except

that in any action brought against a judicial officer for an act or omission taken in

such officer’s judicial capacity, injunctive relief shall not be granted unless a

declaratory decree was violated or declaratory relief was unavailable.” The

Supreme Court rejected this argument in Pierson v. Ray, 386 U.S. 547, 554-55

(1967), reasoning that there is nothing in the legislative history of Section 1983 to

support finding that Congress — in enacting Section 1983 — intended to do away with

a long-established common law immunity such as absolute immunity for judicial

acts.

Under the allegations of the Complaint, the Judicial Defendants are absolutely

immune with respect to Plaintiffs attempt to seek Section 1983 damages against

them. They also have absolute judicial immunity as to Plaintiffs requests for relief

■22

that is in the nature of declaratory and/or injunctive relief, because Cases 1 and 2

concluded years ago. Ashelman, 793 F.2d at 1075. This defect is fundamental and

cannot be rectified with amendment. Accordingly, judicial immunity serves as

the Complaint, but even if they had been, they also would not be cognizable under Section 1983

due to the absolute judicial immunity doctrine, as they all relate to exercises of judicial authority

in connections with Cases 1 and 2. Thus, these additional allegations cannot serve as a basis for

affording amendment, as doing so would be futile.

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another basis for dismissing Claims III and V of the Complaint without leave to

amend and with prejudice as to the Judicial Defendants.

C. Heck Bar

In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court held that to

recover damages under Section 1983 for “harm caused by actions whose

unlawfulness would render a conviction or sentence invalid,” the plaintiff must

prove that the conviction has been reversed, expunged, or invalidated. Id. at 486-87.

Under Heck, “[w]hen a plaintiff who has been convicted of a crime under state law

seeks damages in a § 1983 suit, ‘the district court must consider whether a judgment

in favor of the plaintiff would necessarily imply the invalidity of his conviction or

sentence.’ If the answer is yes, the suit is barred.” Hooper v. Cty. of San Diego, 629

F.3d 1127, 1130 (9th Cir. 2011) (citations omitted). Subsequently, the Supreme

Court has made clear that the Heck bar applies regardless of the type of relief

sought. See Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) (“a state prisoner’s §

1983 action is barred (absent prior invalidation)—no matter the relief sought

(damages or equitable relief), no matter the target of the prisoner’s suit (state

conduct leading to conviction or internal prison proceedings)—if success in that

action would necessarily demonstrate the invalidity of confinement or its duration”).

When a finding in a plaintiffs favor on a Section 1983 claim would effectively

render his conviction invalid - for instance, by finding that he was deprived of

federal constitutional rights at trial - Heck will bar the claim unless and until he

succeeds in setting it aside.

By Claims III and V, Plaintiff alleges that he was convicted in Cases 1 and 2

as the result of numerous federal constitutional defects, including the Judicial

Defendants’ violations of his rights to a speedy trial, due process and equal

protection, and to be free from double jeopardy, and the ineffective assistance of

counsel provided by Defendants Robert Sanger and Neil Levinson. For the Court to

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rule in Plaintiffs favor on these claims, it would have to find that Plaintiff, indeed,

was deprived of one or more of these federal constitutional rights - a finding that in

turn necessarily would imply, if not demonstrate, the invalidity of his convictions

sustained in Case 1 and/or Case 2. Plaintiffs convictions in Cases 1 and 2,

however, are extant. No appeal was taken in connection with Case 2, and Plaintiff s

appeal of Case 1 failed, as did his subsequent federal habeas proceeding.9 As both

such convictions remain, his attack on them made through Claims III and V are

barred by Heck. Accordingly, both claims should be dismissed without prejudice10

on that basis.11

For the foregoing reasons, the Judicial Defendants Motion should be granted

and Claims III and V of the Complaint should be dismissed without leave to amend.

This case should be dismissed as to the Judicial Defendants on a with prejudice

basis (Rooker-Feldman and judicial immunity grounds) and on a without prejudice

In Lack v. Koenig, 2:10-cv-02060-RGK (GJS), Plaintiff sought federal habeas relief as to

Case 1. That action was dismissed with prejudice as untimely [Dkts. 71,75-76], and Plaintiff s

appeal is pending [Dkts. 78-79]. Thus, at present, Case 1 remains a valid conviction.

While the above-discussed Rooker-Feldman and judicial immunity grounds warrant

dismissal with prejudice, Heck-based dismissals are to be on a without prejudice basis. See

Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir.1995) (per curiam) (dismissals under

Heck are without prejudice).

This Heck-based dismissal applies not only to the Judicial Defendants but to Defendants

Robert Sanger and Neil Levinson, Plaintiffs trial attorneys in Cases 1 and 2 alleged to have

provided ineffective assistance. The Heck bar has been found applicable to claims of ineffective

assistance of counsel. See Trimble, 49 F.3d at 585 (concluding that Sixth Amendment claim of

ineffective assistance of counsel brought under Section 1983 is precluded under Heck)', Escalera v.

Public Defenders Office, No. 08-2168 IEG, 2009 WL 88597, at *3 (S.D. Cal. 2009) (“to the extent

Plaintiff seeks damages under 42 U.S.C. § 1983 ... based on the alleged ineffective assistance of

his trial counsel, his claim amounts to an attack on the validity of his underlying criminal

proceedings, and as such, is not cognizable under 42 U.S.C. § 1983”). While neither Defendant

has invoked Heck as a basis for dismissal (unlike the moving Judicial Defendants), as the Court

observed earlier in Note 4, such dismissal nonetheless is appropriate given that the Heck bar

plainly is applicable as to all Defendants named in Claims III and V (including Unserved

Defendant Cota). See Abagninin, 545 F.3d at 742; Silverton, 644 F.2d at 1345 (9th Cir. 1981).

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basis {Heck ground).

III. The Sanger Motion

The Complaint alleges a single claim against Defendant Robert Sanger - Claim

V. As discussed in the preceding Section, the Court has concluded that Claim V is

Heck-barred and should be dismissed without prejudice on that basis, including as to

Sanger. The Sanger Motion raises four additional grounds for dismissal. First,

Sanger argues that the Complaint is untimely under California Code of Civil

Procedure § 340.6(a), which pertains to California state law actions against

attorneys. Second, Sanger argues that the Complaint fails to meet federal pleading

standards, as it does not provide fair notice of the substance of Plaintiff s claim

against Sanger. Third, Sanger asserts that actual innocence is a required element of

a state law legal malpractice claim based on a criminal case, and that Plaintiff has

failed to plead actual innocence and could not do so given that he has been

convicted twice and lost on appeal once. Fourth, Sanger argues that the Complaint

fails to state a claim upon which relief can be granted under Section 1983, because

the requisite “under color of state law” element does not exist.

Dismissal is not warranted based on Sanger’s first and third grounds, because

they rest on an erroneous premise, namely, that the Complaint asserts a state law

legal malpractice claim against him. The sole claim alleged against Sanger (albeit

defectively) is brought only under Section 1983 and asserts (without explanation)

that Sanger provided ineffective assistance, which implicates the Sixth Amendment.

Claim V is a federal claim, not a state law claim, and thus, the state law authorities

on which the first and third arguments rest are inapplicable.

Sanger’s second argument has merit. The sole allegation against Sanger is that

“Petitioner had ineffective assistance of counsel by Robert Sanger (who even

admitted it in court) a[nd] Neil Levinson.” [Complaint at 19.] The Court assumes

this pertains to something done (or not done) with respect to the unsuccessful Kellett

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motion that is the subject of Claim V, but this is mere surmise given the lack of any

allegations of fact against both Sanger and Levinson.12 The Complaint is entirely

bereft of any allegations as to what Sanger did or did not do that could rise to the

level of a Sixth Amendment violation, much less how and when Sanger purportedly

admitted in open court that he had provided ineffective assistance. Under the

foregoing Rule 8 and Rule 12(b)(6) standards, the Complaint fails woefully to

provide the Court, Sanger, and Levinson with fair notice of the basis for Plaintiff s

Section 1983 claim against these two Defendants. As the Complaint lacks sufficient

factual allegations to give rise to a claim that is plausible against these two

Defendants, dismissal is warranted on this ground.13 Iqbal, 556 U.S. at 678; see

also Twombly, 550 U.S. at 556; Brazil, 66 F.3d at 199.

Sanger’s fourth argument also has merit and presents a dispositive basis for

dismissal. Section 1983 requires a violation of federal constitutional or statutory

rights caused by a person acting under color of state law. Crumpton v. Gates, 947

F.2d 1418-1420 (9th Cir. 1991). To state a viable Section 1983 claim, a pleading

must allege facts that, if true, would establish that the defendant was acting under

color of state law with respect to the complained-of matters. See, e.g., Marsh v.

County of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012). Generally, private

individuals and entities cannot be held liable, because Section 1983 “excludes from

its reach merely private conduct, no matter how discriminatory or wrong.” Am.

Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49 (1999).

This particular defect in the Complaint as to Sanger, and thus ground for dismissal, is

equally applicable to Levinson, given that the only allegation against him is as quoted above. As a

result, dismissal as to Levinson is warranted for the same reasons as it is with respect to Sanger.

As noted earlier, Plaintiff has not opposed the Sanger Motion. The Court has reviewed the

additional factual allegations set forth in Plaintiffs Oppositions to the Judicial Defendants Motion

and to the CDCR Defendants Motion. There is nothing in those Opposition filings that provides

any basis for a viable claim against Defendants Sanger and Levinson, no matter how liberally

Plaintiffs assertions are construed.

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Attorneys appointed to represent a criminal defendant during trial do not act

under color of state law, because representing a client “is essentially a private

function ... for which state office and authority are not needed.” Polk County v.

Dodson, 454 U.S. 312, 319 (1981); see also United States v. De Gross, 960 F.2d

1433, 1442 n.12 (9th Cir. 1992). This is so whether defense counsel is privately-

retained or an appointed public defender. See Miranda v. Clark County, 319 F.3d

465, 468 (9th Cir. 2003) (en banc) (finding that public defender was not a state actor

subject to suit under Section 1983 because, so long as he performs a traditional role

of an attorney for a client, “his function,” no matter how ineffective, is “to represent

his client, not the interests of the state or county”); Simmons v. Sacramento County

Superior Court, 318 F.3d 1156, 1161 (9th Cir. 2003) (affirming Rule 12(b)(6)

dismissal for failure to state a claim as to a private attorney defendant, because a

private attorney does not act under color of state law, and conclusory allegations that

the lawyer was conspiring with state officers to deprive the plaintiff of due process

are insufficient to satisfy the under color of state law requirement).

Sanger is sued solely for his acts taken in his role as Plaintiff s counsel in

connection with Case 1. Levinson is sued solely for his acts taken in his role as

Plaintiffs counsel in Case 2. Plaintiff seeks to hold them liable under Section 1983

for conduct taken in those roles, i.e., for allegedly ineffective representation while

serving as his defense counsel. As a result, Sanger and Levinson were not acting

under color of state law for purposes of Section 1983 and no cognizable claim is or

can be stated against then. As this defect is fundamental and fatal, amendment

would be futile,14 the Sanger Motion should be granted, and Sanger and Levinson

should be dismissed with prejudice.

The Court’s finding of futility is bolstered by the fact that it previously has advised

Plaintiff of this same defect. In late November 2018, Plaintiff filed a Section 1983 complaint

making many of the same allegations as in this action and against many of the same Defendants.

On January 10, 2019, the Court issued an Order denying Plaintiff leave to proceed without

prepayment of the filing fee based on the complaint’s numerous defects, including this same lack

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IV. The CDCR Defendants Motion

The Complaint asserts three claims against the four CDCR Defendants.

Claim I is brought against CDCR Defendants S. Posson (“Dr. Posson”) and C.

Koenig (“Warden Koenig), among others, based on an event that is alleged to have

occurred on March 14, 2018. [Complaint at 7.] Plaintiff alleges that: he was taken

to the hospital on March 4, 2018, with stomach pains; upon testing, a mass was

detected; Dr. Tabbaa indicated it might be cancer; Dr. Tabbaa’s March 9,2018

discharge papers stated that Plaintiff would benefit from a referral to UCSF for

further testing within 3-5 days; such testing “never happened”; and, instead, Plaintiff

was sent back to court in Santa Barbara. Plaintiff further alleges that: on May 8,

2018, he again was rushed to the hospital with stomach pain; Dr. Tabbaa noted that

he had instructed the prison to send plaintiff to UCSF; and Plaintiff responded that

“they won’t follow your orders but they keep sending me to court.” Plaintiff asserts

that these two CDCR Defendants violated his Eighth Amendment rights by acting in

deliberate indifference to his medical needs, namely, by failing to follow the March

9, 2018 discharge recommendation by Dr. Tabbaa that Plaintiff be sent to UCSF for

further testing within 3-5 days, i.e., by March 14, 2018. [Complaint at 7, 9.]15

of “under color of state law” defect as to the attorney defendants sued. See Lack v. Carrozzo,

2:18-CV-09939-RGK (GJS), Docket No. 6. Given that Plaintiff has been given prior notice of this

defect and has been unable to rectify it here, it is plain that he cannot do so.

Plaintiff also states, without explanation, that his rights under the Fifth, Sixth, and

Fourteenth Amendments were violated by this alleged deliberate indifference, as well as that the

Defendants’ deliberate indifference deprived him of his “rights under Title 18, U.S.C. Section

242.” [Complaint at 9.] 18 U.S.C. § 242 is a federal criminal statute and Plaintiff may not bring a

Section 1983 claim premised on that statute. See, e.g., Allen v. Gold Country, 464 F.3d 1044,

1048 (9th Cir. 2006) (Section 242 does not give rise to civil liability); Aldabe v. Aldabe, 616 F.2d

1089, 1092 (9th Cir. 1980) (same). A Section 1983 medical deliberate indifference claim by a

prisoner properly arises under the Eighth Amendment’s proscription against cruel and unusual

punishment, rather than under the Fifth and Sixth Amendments or the Fourteenth Amendment’s

substantive due process guarantee. See Albright v. Oliver, 510 U.S. 266, 273 (1994) (“[w]here a

particular Amendment provides an explicit textual source of constitutional protection against a

particular sort of government behavior, that Amendment, not the more generalized notion of

substantive due process, must be the guide for analyzing such a claim”).

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Claim II is brought against CDCR Defendants R. Skipper-Dota (“Skipper-

Dota”) and D. Moeller (“Moeller”), as well as an Unserved Defendant, based on an

event alleged to have occurred on November 16, 2017. [Complaint at 10.] Plaintiff

alleges that both Defendants interfered with his “due process rights” under 18

U.S.C. § 242 when: Skipper-Dota twice vacated Plaintiffs already-approved parole

release under Proposition 57, which prevented Plaintiff from being released to have

medical treatment and defending himself in Case 2; and Moeller called Plaintiff a

violent criminal and denied Plaintiff Proposition 57 release. [Complaint at 10-11.]16

Claim VI is brought against CDCR Defendant Warden Koenig, among others,

based on an event alleged to have occurred on May 26, 2017. [Complaint at 20.]

Plaintiff alleges that, on that date, the United States Court of Appeals for the Ninth

Circuit issued a “‘Stay Order’”17 that he showed to a prison counselor, and the

“warden office says ‘They don’t listen to that court’” and transported Plaintiff. He

contends that by transporting him, Warden Koenig violated the Fifth, Eleventh, and

Fourteenth Amendments, 28 U.S.C. § 2251, and “Federal Rule 23(a).”18 [Complaint

at 21-22.]

As noted above, Plaintiff cannot bring a Section 1983 claim premised on an asserted 18

U.S.C. § 242 violation. Claim II also states that Plaintiffs rights under the Fourth and Sixth

Amendments were violated in some unspecified manner, but there is nothing in the claim that

implicates these two Amendments.

The Court has reviewed the dockets of this District Court and the Ninth Circuit, which fail

to show the existence of any such court-issued stay order. Rather, they show that: in Plaintiff s

habeas action in this District Court - Lack v. Brown, 2:17-cv-00026-BRO (AJW) - Judgment was

entered on January 11, 2017, dismissing the case without prejudice; on May 22, 2017, Plaintiff

filed a “notice” citing Fed. R. App. 23 and seeking an order from the District Court precluding

him from being transferred to another prison, but no court order issued in response to that notice,

whether from the District Court or the Ninth Circuit; and on May 26, 2017, the Ninth Circuit

opened an appeal docket and issued a form notice assigning a case number (17-55759) and

advising that a briefing schedule would not be set until there was a ruling on the certificate of

appealability issue.

A purported violation of a Federal Rule of Appellate Procedure cannot serve as the basis

for a Section 1983 claim. Nor do 28 U.S.C. § 2251 or the Eleventh Amendment appear to have

any applicability to the subject-matter of Claim VI.

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The CDCR Defendants Motion raises four grounds for dismissal. First, the

CDCR Defendants contend that the Complaint violates Rule 8, because it lacks

sufficient factual allegations to provide them with fair notice. Second, they contend

that the Complaint fails to state a cognizable Section 1983 claim against them,

because it fails to allege that any of them personally participated in, or caused, any

violation of Plaintiff s constitutional rights. Third, they contend that Plaintiffs

claims against them are untimely under the applicable statute of limitations. Fourth,

they contend that Plaintiffs official capacity claims against them for monetary

damages (compensatory and punitive) are barred by the Eleventh Amendment.

The CDCR Defendants’ first and second arguments for dismissal have some

merit. The Complaint’s allegations are barebones and cryptic, failing to identify

clearly what each such Defendants allegedly did or did not do. For example, as to

Claim II and Skipper-Dota and Moeller, Plaintiff apparently contends that they did

something to thwart a grant of parole under Proposition 57 that he already had

received, but he fails to allege when he was so granted parole and what each

Defendant actually did to overturn such a grant. As to Claim I and Dr. Posson and

Warden Koenig, the Complaint does not plead a single fact that could support

finding that they had anything to do with Plaintiff not being sent to UCSF in

accordance with Dr. Tabbaa’s discharge instructions or that they were somehow

involved in Plaintiff being sent to court after his discharge from the hospital. As to

Claim VI and Warden Koenig, there is no fact alleged in the Complaint that could

support a finding that this Defendant had anything to do with the decision to

transport Plaintiff notwithstanding the purported “stay order” he alleges.

In short, not only does the Complaint violate Rule 8 by failing to provide the

CDCR Defendants (and the Court) with fair notice of the alleged bases for liability

under Section 1983, but it also fails to plead the required causation for a viable

Section 1983 claim. See, e.g., Rizzo v. Goode, 423 U.S. 362, 372-73 (1976);

Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Thus, dismissal on this basis is

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warranted. That said, Plaintiffs Opposition to the CDCR Defendants Motion

indicates that Plaintiff likely could plead his claims against at least three of these

Defendants with more factual detail,19 given the numerous additional factual

allegations set forth in the Opposition that are not pleaded in the Complaint. Thus,

while dismissal under Rules 8 and 12(b)(6) of the three claims pleaded against the

CDCR Defendants is warranted, such a dismissal would be on a leave to amend

basis. The two other grounds for dismissal raised by the CDCR Defendants,

however, warrant a dismissal that should be without leave to amend and with

prejudice.

The CDCR Defendants’ fourth ground for dismissal plainly has merit; indeed,

in his Opposition, Plaintiff ignores it entirely, presumably because he cannot contest

it. The Complaint sues Skipper-Dota and Moeller in both their individual and

official capacities as to the sole claim in which they are named (Claim II), and

Warden Koenig in both capacities in connection with Claim VI. As to Claim I, in

which both Dr. Posson and Warden Koenig are named as defendants, the Complaint

fails to indicate the capacities in which they are sued, but given that Plaintiff sues

the other CDCR Defendants in both capacities, the Court assumes he intends to do

so as to this claim as well. The Complaint seeks compensatory and punitive

damages against these four Defendants. All four CDCR Defendants are alleged to

be employed by a state agency. To the extent that Plaintiff sues these four

Defendants in their official capacities for damages, this is tantamount to a damages

claim against the State of California itself. See Kentucky v. Graham, 473 U.S. 159,

169-70 (1985); Larez v. City ofLos Angeles, 946 F.2d 630, 646 (9th Cir. 1991).

Such a claim is barred by the Eleventh Amendment.

The Opposition asserts a variety of factual allegations against CDCR Defendants Dr.

Posson, Skipper-Dota, and Moeller that are missing entirely from the Complaint, including

clarifying the dates on which they allegedly wrongfully acted, as discussed infra. The Complaint,

however, fails to set forth any facts as to Warden Koenig which could serve as a basis for finding

that, with amendment, a viable Section 1983 claim could be stated against him.

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The Eleventh Amendment prohibits federal jurisdiction over claims against a

state - whether brought by its own citizens or noncitizens - unless the state has

consented to suit or Congress has abrogated its immunity. See, e.g., Kimel v.

Florida Board ofRegents, 528 U.S. 62, 72-73 (2000); Pennhurst State School &

Hosp. v. Halderman, 465 U.S. 89, 98-101 (1984). “The Eleventh Amendment bars

suits which seek either damages or injunctive relief against a state, an ‘arm of the

state,’ its instrumentalities, or its agencies.” Franceschi v. Schwartz, 57 F.3d 828,

831 (9th Cir. 1995) (citation omitted). The Eleventh Amendment’s grant of

sovereign immunity to states encompasses not only actions when a state itself is a

defendant but also actions against state agencies and instrumentalities, as well as its

officials. Regents of the University of California v. Doe, 519 U.S. 425, 429 (1997).

The Eleventh Amendment bars all monetary damages claims asserted in the

Complaint against the CDCR Defendants in their official capacities. See Pennhurst,

465 U.S. at 100. Because the Eleventh Amendment operates to deny this Court

jurisdiction to adjudicate such damages claims, this defect is jurisdictional and

cannot be remedied through amendment, and thus, the dismissal of the damages

claims must be with prejudice.

Finally, the CDCR Defendants’ third ground for dismissal - untimeliness -

has merit. The Court notes that, in his Opposition, Plaintiff has ignored the

untimeliness defense raised in the CDCR Defendants Motion. The failure to

respond in an opposition brief to an argument put forward in an opening brief can

constitute waiver with respect to the matter in issue. Stichting Pensioenfonds ABP

v. Countrywide Fin. Corp., 802 F. Supp. 2d 1125, 1132 (C.D. Cal. 2011); see also

Quinones v. Cnty. of Orange, No. SACV 20-666-JVS (KESx), 2020 WL 5289923,

at *4 (C.D. Cal. July 15, 2020) (construing plaintiffs failure to address a statute of

limitations argument in a motion to dismiss “as her concession that this is a valid

reason to dismiss the claim”) (citing Allen v. Dollar Tree Stores, Inc., 475 Fed.

Appx. 159, 159 (9th Cir. 2012)); Heraldez v. Bayview Loan Servicing, LLC, No. CV

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16-1978-R, 2016 WL 10834101, at *2 (C.D. Cal. Dec. 15, 2016) (“Failure to oppose

constitutes a waiver or abandonment of the issue.”), aff d by 719 F. App’x 663 (9th

Cir. 2018). But even without any such presumed concession, it is readily apparent

that the claims alleged against the CDCR Defendants are time-barred.

“For actions under 42 U.S.C. § 1983, courts apply the forum state’s statute of

limitations for personal injury actions, along with the forum state’s law regarding

tolling, including equitable tolling, except to the extent any of these laws is

inconsistent with federal law.” Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004);

see also Elliott v. City of Union City, 25 F.3d 800, 802 (9th Cir. 1994). The statute

of limitations for personal injury actions under California law is two years. See Cal.

Code Civ. P. § 335.1. “Federal law determines when a federal civil rights claim

accrues.” Lukovsky v. City and County of San Francisco, 535 F.3d 1044, 1048 (9th

Cir. 2008). Under federal law, a civil rights claim accrues when the plaintiff knows

or has reason to know of the injury that forms the basis of the claim. Id.; see also

TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1991). A claim ordinarily accrues

on the date of the injury. Belanus v. Clark, 796 F.3d 1021, 1025 (9th Cir. 2015).

“[I]t is the standard rule that accrual occurs when the plaintiff has a complete and

present cause of action, that is, when the plaintiff can file suit and obtain relief.”

Wallace v. Kato, 549 U.S. 384, 388 (2007) (internal citations and punctuation

omitted); see also id. at 391 (observing that a cause of action accrues even though

the plaintiff may not yet know the full extent of his injury).

Plaintiff was incarcerated on the dates his claims accrued (as discussed

below), and thus, statutory tolling under California Code of Civil Procedure §

352.1(a) may apply. This state statute provides up to two years of tolling for a

plaintiff who was incarcerated at the time his claim accrued. Even if this California

two-year tolling provision is applied in full so as to afford Plaintiff an additional two

years in which to sue, on top of the two years provided under the Section 335.1

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limitations period, each of Plaintiff s three claims asserted against the CDCR

Defendants is untimely.

The wrong at issue in Claim I is the failure to send Plaintiff to UCSF for

further testing within 5 days of his March 9, 2018 discharge by Dr. Tabbaa from

another hospital. The Complaint expressly alleges that this wrongful event occurred

on March 14, 2018. [Complaint at 7.] The only wrongdoing alleged against

Warden Koenig is his asserted failure to send Plaintiff to USCF for further testing

within 5 days of his March 9,2018 discharge by Dr. Tabbaa. [Complaint at 7.] In

his Opposition to the CDCR Motion, Plaintiff alleges that Dr. Posson’s asserted

wrongdoing occurred on or before March 15, 2018, the date on which Plaintiff was

transferred to Wasco State Prison allegedly because Dr. Posson had decided to lift

Plaintiffs medical hold on or before that date. [Opposition at 2-3.] Thus, at the

latest, Plaintiffs own allegations show that Claim I accrued against these two

CDCR Defendants on or before March 14 and/or 15, 2018, at the latest. This action,

however, was not initiated until May 2, 2022, when Plaintiff no longer was

incarcerated, more than four years after Claim I accrued. Even with the benefit of

adding two years tolling pursuant to California Code of Civil Procedure § 352.1(a)

to the two-year limitations period for this Section 1983 claim, Claim I remains

untimely.

Claim II is based on a wrong that is alleged to have occurred on November

16, 2017. [Complaint at 10.] While the Complaint is bereft of facts about what

happened, other than to allude vaguely to an apparent rescission of parole granted

under Proposition 57, Plaintiffs Opposition provides more information. Plaintiff

alleges therein that: on September 18, 2017, he received notice that his release on

parole had been approved; on November 6, 2017, Skipper-Dota issued a decision

which reversed that grant of parole; on January 12, 2018, Skipper-Dota denied

Plaintiffs request for review and upheld her decision; and on February 26, 2018,

Moeller affirmed Skipper-Dota’s decision. [Opposition at 6-9.] Thus, Claim II

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accrued, at the latest, by no later than February 26, 2018. Given that the Complaint

was not filed until May 2, 2018 - more than four years after Claim II accrued -

Claim II also is untimely.

Claim VI is based on an event alleged to have occurred on May 26, 2017,

namely, the failure that day to adhere to a purported Ninth Circuit stay order by

transporting Plaintiff to some unidentified location. [Complaint at 20-21.] Thus,

Claim VI accrued by no later than May 26, 2017. Because the Complaint was filed

on May 2, 2022 - more than four years after Claim VI accrued - Claim VI is

untimely.

The Complaint, on its face, is untimely. Plaintiff has failed to respond to the

timeliness issue raised by the CDCR Defendants Motion, and thus, there is no basis

for concluding that this defect can be overcome through amendment. Accordingly,

the CDCR Defendants Motion should be granted based on the untimely nature of the

Complaint, and Claims I, II, and VI - as well as the CDCR Defendants - should be

dismissed without leave to amend and with prejudice.

.17

jjc

The Judicial Defendant Motion, the Sanger Motion, and the CDCR Defendant

Motion, therefore, should be granted. As noted above, almost four years before he

filed this action, Plaintiff brought a similar lawsuit raising many of these same

claims against many of these same Defendants. That 2018 lawsuit was dismissed

for failure to state a claim upon which relief can be granted, based on the Court’s

findings that the defects found - many of which are repeated in the instant

Complaint - were futile, and thus, leave to amend was not appropriate. The

Complaint is replete with a number of those some earlier-identified problems.

Given that Plaintiff has not corrected them, this leads to the conclusion that he

cannot do so (and, indeed, most of them are non-rectifiable and cannot be corrected

through amendment). Because amendment would be futile for the reasons discussed

above, the Complaint should be dismissed without leave to amend and the case

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should be dismissed with prejudice as to Claims I, II, III, V, and VI and Defendants

Judge Thomas P. Anderle, Judge Clifford R. Anderson, III, Judge Michael

Carrozzo, Judge Jean M. Dandona, Robert Sanger, Neil Levinson, C. Koenig, D.

Moeller, S. Posson, and R. Skipper-Dota, and without prejudice as to Claim IV and

Defendants Brian Cota, Jeff Sanger, Santa Barbara Sheriff Moennro [sic], CTF

Prison Transportation, CTF Prison Doctor John Doe, and two John Doe Defendants

alleged to be Santa Barbara Sheriffs Department Deputies.20

RECOMMENDATION

For all of the foregoing reasons, IT IS RECOMMENDED that the Court issue

an Order: (1) accepting this Report and Recommendation; (2) granting the Judicial

Defendants Motion, the Sanger Motion, and the CDCR Defendants Motion, and

dismissing the Complaint without leave to amend; and (3) dismissing this action

with and without prejudice as set forth above.

DATED: April 24, 2022

GAIL J. STANDISH

UNITED STATES MAGISTRATE JUDGE

NOTICE

Reports and Recommendations are not appealable to the United States Court

of Appeals for the Ninth Circuit, but may be subject to the right of any party to file

objections as provided in the Local Civil Rules for the United States District Court

As noted above, the Heck bar ground the Court has found to have merit as to Claims III

and V normally would result in a dismissal of those claims on a without prejudice basis.

However, the Court also has found that two other grounds (Rooker-Feldman and judicial

immunity) require that the two claims be dismissed on a with prejudice basis. Accordingly, the

Court recommends that Claims III and V be dismissed with prejudice regardless of its alternative

Heck finding.

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for the Central District of California and review by the United States District Judge

whose initials appear in the docket number. No notice of appeal pursuant to the

Federal Rules of Appellate Procedure should be filed until the District Court enters

judgment.

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UNITED STATES COURT OF APPEALS

FILED

FOR THE NINTH CIRCUIT

OCT 18 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

No.

DAVID JAMES LACK,

Plaintiff-Appellant,

23-55522

D.C. No.

2:22-cv-02955-RGK-GJ S

Central District of California,

Los Angeles

POSNER, Dr; et al.,

ORDER

Defendants-Appellees.

Before: CANBY, TASHIMA, and KOH, Circuit Judges.

We treat appellant’s filing received on June 3, 2024 as a motion for

reconsideration en banc. The motion for reconsideration en banc (Docket Entry

No. 39) is denied on behalf of the court. See 9th Cir. R. 27-10; 9th Cir. Gen. Ord.

6.11.

No further filings will be entertained in this closed case.

OSA145

Append ix A

Additional material

from this filing is

available in the

Clerk's Office.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.