Cejas v. Paramo
| Decision Date | 17 January 2019 |
| Docket Number | Case No.: 14-CV-1923-WQH-WVG |
| Parties | ANDREW CEJAS, Plaintiff, v. DANIEL PARAMO, et al., Defendants. |
| Court | U.S. District Court — Southern District of California |
REPORT AND RECOMMENDATION GRANTING DEFENDANTS MOTION TO DISMISS
Presently before the Court is Defendants S. Rutledge, D. Strayhorn, and D. Jaime's (collectively "Defendants") Motion to Dismiss certain causes of action in Plaintiff Andrew Cejas' First Amended Complaint for failing to state a claim. (Mot., ECF No. 71.) Additionally, Defendant's move to have defendants Olson and Ramirez dismissed for failure to prosecute. (Id.)
After considering the Motion and Plaintiff's Opposition, the Court RECOMMENDS the Motion be GRANTED and the specified causes of action in the First Amended Complaint be DISMISSED as described below.
Plaintiff Andrew Cejas, a state prisoner proceeding pro se, filed a First Amended Complaint ("FAC") pursuant to 42 U.S.C. § 1983 on May 17, 2018. (See ECF No. 59.) In his FAC, Plaintiff alleges that Defendants seized an "altered handkerchief" adorned with four swastikas, which Plaintiff identifies as an altar cloth, and a swastika pendant. (Id. at ¶ 24, 135.) At numerous points throughout the FAC, Plaintiff claims that the swastikas displayed on his altar cloth are not "Nazi swastikas," rather they are Buddhist swastikas. (See e.g., id. at ¶¶ 19, 21, 63.) Plaintiff explains that the swastikas are distinct because they face opposite directions. (Id. at ¶20.)
In his FAC, Plaintiff has set forth four causes of action. In the first cause of action, Plaintiff alleges that defendants Rutledge, Olson, Ramirez, and Strayhorn violated Plaintiff's First Amendment right to free speech by retaliating against Plaintiff for his filing of grievances. (FAC at ¶¶ 64-89.) In the second cause of action, Plaintiff alleges defendants Strayhorn, Rutledge, and Jaime violated Plaintiff's First Amendment right to free exercise and expression of religion by confiscating and refusing to return the altar cloth and pendant. (Id. at ¶¶ 96-97.) Also in the second cause of action is an allegation that defendants Olson and Ramirez violated Plaintiff's First Amendment right to access the federal courts. (Id. at ¶¶ 103-111.) In the third cause of action, Plaintiff alleges defendants Rutledge, Jaime, and Strayhorn violated Plaintiff's Fourteenth Amendment right to equal protection. (Id. at ¶¶ 112-122.) Plaintiff also alleges that defendants Rutledge, Jaime, Strayhorn, Olson, and Ramirez violated Plaintiff's Fifth and Fourteenth Amendment rights to due process by improperly confiscating Plaintiff's property. (Id. at ¶¶ 123-129.) In the fourth cause of action, Plaintiff alleges that defendants Rutledge, Jaime, and Strayhorn violated the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. §§ 2000cc, et seq., by seizing Plaintiff's religious property. (Id. at ¶¶ 130-136.) Plaintiff seeks declaratory judgment, injunctive relief, and monetary damages. (Id. at ¶ 138.)
As relevant here, Federal Rule of Civil Procedure 4(m) provides:
If a defendant is not served within 90 days after the complaint is filed, the court - on motion or on its own after notice to theplaintiff - must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.
Fed. R. Civ. P. 4(m).1 "Courts have discretion under Rule 4(m), absent a showing of good cause, to extend the time for service or to dismiss the action without prejudice." In re Sheehan, 253 F.3d 507, 513 (9th Cir. 2001). "[T]he court's discretion is broad." Id.
Federal Rule of Civil Procedure 12(b)(6) permits dismissal for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). Federal Rule of Civil Procedure 8(a)(2) provides "[a] pleading that states a claim for relief must contain ... a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "A district court's dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) is proper if there is a 'lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.'" Conservation Force v. Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011) (quoting Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990) ).
"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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citation omitted). However, "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment]to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (quoting Fed. R. Civ. P. 8(a)). A court is not "required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). "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 Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quotations omitted).
Where, as here, a plaintiff appears in propria persona in a civil rights suit, the Court also must be careful to construe the pleadings liberally and afford the plaintiff any benefit of the doubt. See Karim-Panahi v. L.A. Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988), abrogated in part as stated in Boarman v. County of Sacramento, No. 2:11-cv-0285, 2013 WL 1326196, at *7 (E.D. Cal. Mar. 29, 2013); Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985). This rule of liberal construction is "particularly important in civil rights cases." Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). In construing a pro se civil rights complaint liberally, however, a court may not "supply essential elements of the claim that were not initially pleaded." Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). "Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss." Id.; see also Sherman v. Yakahi, 549 F.2d 1287, 1290 (9th Cir. 1977) () Thus, at a minimum, even the pro se plaintiff "must 'allege with at least some degree of particularity overt acts which defendants engaged in' that support [his] claim." Jones v. Cmty. Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984) (quoting Powell v. Workmen's Comp. Bd., 327 F.2d 131, 137 (2d Cir. 1964)).
To state a claim pursuant to 42 U.S.C. § 1983, a plaintiff must allege facts sufficient to show a person acting "under color of state law" committed the alleged conduct, and the conduct deprived the plaintiff of some right, privilege, or immunity protected by theConstitution or laws of the United States. 42 U.S.C. § 1983.
Defendants move to dismiss Olson and Ramirez for failure to serve. (Mot. at 3:19-24.) In his Opposition, Plaintiff argues Olson and Ramirez should not be dismissed because they "were named four years ago" and they have been properly served. (Opp'n, ECF No. 77 at 5.) Plaintiff's claim is belied by the record.
Plaintiff filed his original complaint on August 15, 2014. (See ECF No. 1.) On August 24, 2016, Plaintiff was on notice that defendants Ramirez and Olson were not served because both summons were returned unexecuted. (See ECF Nos. 9, 10.) Additionally, on October 26, 2016, in the Court's order denying Plaintiff's motion for default judgment, Plaintiff was again alerted to the fact that Olson and Ramirez had not been served. (See ECF No. 20 at 1:24-25.2) The case was litigated for nearly two years without Olson and Ramirez being served and before Plaintiff filed his FAC on May 17, 2018. (See ECF No. 59.) On June 1, 2018, summons served on Ramirez and Olson were returned unexecuted. (See ECF No. 64.) On June 29, 2018, the summons served on Ramirez and Olson were again returned unexecuted. (See ECF Nos. 67, 68.) To date, Plaintiff has not served Ramirez and Olson. Regardless of whether the Court applies the 120 day deadline by which to serve a defendant applicable in 2014 or the 90 day deadline applicable from 2015 to present, Plaintiff has far exceeded both despite being on sufficient notice that neither Ramirez nor Olson had been served. Accordingly, the Court RECOMMENDS that defendants Ramirez and Olson be DISMISSED WITHOUT PREJUDICE for failure to serve pursuant to Rule 4(m).
Defendants argue they are entitled to qualified immunity in regards to the freeexercise and free expression claims asserted in the second cause of action, the equal protection claim asserted in the third cause of action, and the RLUIPA claim asserted in the fourth cause of action "because they did not have fair warning that confiscating swastikas in prison is an unconstitutional action." (Mot. at 7:6-7.) In support of this argument, Defendants direct the Court's attention to three cases where it was found that "there is no violation of an...
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