Faunce v. Martinez, 21-cv-363-MMA (WVG)

CourtUnited States District Courts. 9th Circuit. United States District Court (Southern District of California)
PartiesDAVID W. FAUNCE, Plaintiff, v. J. MARTINEZ, et al., Defendants.
Docket Number21-cv-363-MMA (WVG)
Decision Date27 June 2022

DAVID W. FAUNCE, Plaintiff,

J. MARTINEZ, et al., Defendants.

No. 21-cv-363-MMA (WVG)

United States District Court, S.D. California

June 27, 2022


[Doc. No. 33]


[Doc. No. 44]


[Doc. No. 56]


David W. Faunce (“Plaintiff”), a California state prisoner proceeding pro se, brings this civil rights action against officials at the R.J. Donovan Correctional Facility (“RJD”) pursuant to 42 U.S.C. § 1983. Doc. No. 1 (“Compl.”). On September 21, 2021, Defendants filed an answer to the Complaint. Doc. No. 15.

Plaintiff seeks leave to file a First Amended Complaint. Doc. No. 33. While that matter was submitted and pending before the Court, Defendants filed a motion for summary judgment on the basis of exhaustion. Doc. No. 44. Both motions are fully


briefed, see Doc. Nos. 38, 43, 51, 58, and suitable for determination on the papers and without oral argument pursuant to Civil Local Rule 7.1.d.1, see Doc. No. 45. Plaintiff has also filed a motion to preclude evidence. Doc. No. 56. For the reasons set forth below, the Court GRANTS IN PART Plaintiff's motion for leave to amend, DENIES Defendants' motion for summary judgment, GRANTS summary judgment in Plaintiff's favor as to exhaustion, and DEFERS ruling on Plaintiff's motion to preclude evidence at this time.

I. Background[1]

A. Factual Background

Plaintiff's case arises from the alleged destruction of his word processor[2] by RJD officials during a cell search on June 8, 2019. See Compl. at 4.[3] Plaintiff asserts that it was destroyed, and that the destruction was covered-up, in retaliation for his litigation efforts against the California Department of Corrections and Rehabilitation (“CDCR”). See id. at 11.

In 2018, Plaintiff filed a habeas corpus action in state court. Id. at 5. In that case, Plaintiff challenged “the statutory and regulatory scheme authorizing CDCR to tax prisoners co-pays for medical visits and costs for prescribed medical and dental services


and appliances.” Id. The legislature subsequently modified these policies, and Plaintiff's petition was denied without opinion. See id. Plaintiff contends that “the petition filed by him in the California Supreme Court, although denied, was the catalyst that directly resulted” in these policy changes and that their implementation “cost[] the CDCR untold millions of dollars.” Id. at 6. Further, Plaintiff alleges that he actively assists other prisoners in filing grievances and complaints. See id. at 11.

When Plaintiff arrived at RJD in late 2006, he brought his word processor, which was inspected by prison personnel and sealed in order to prevent Plaintiff from concealing anything inside it. See id. at 4. According to Plaintiff, the seals were not broken, “nor was any type of contraband ever concealed within [P]laintiff's word processor.” Id.

According to the Complaint, on June 8, 2019, Warden Covello ordered that the unit where Plaintiff was housed at the time be searched. See id. at 6. Defendants Ortiz and Godinez supervised the search, while Defendant McWay searched Plaintiff's cell. See id. Prior to the search, Plaintiff was removed from his cell, searched, and not allowed to observe while his cell was inspected. See id. After several hours, Defendant McWay told Plaintiff that he would be receiving a Rules Violation Report “for possession of a cell phone in his word processor” and “presented [P]laintiff with a . . . property disposal chrono, explaining that his word processor was smashed and inoperable and had to be disposed of.” Id. at 7. Plaintiff alleges that the word processor was working prior to the search and did not contain a cell phone.[4] See id. at 7-8. Plaintiff signed the disposal chrono, electing to send it to an address outside of the prison, but Defendant McWay “refused to sign the chrono,” and instead, the typewriter was put in the trash. See id. at 7.


Plaintiff asserts that his typewriter was intentionally broken and disposed of, and that Defendant McWay then authored the false Rules Violation Report upon Defendants Godinez and Ortiz's orders to cover up its destruction. See id. at 18. When Plaintiff received the Rules Violation Report and photographs of the seized phone more than a week later, they “showed the wrong cell number in which the photographed items were allegedly found,” and did not show where in his cell the phone was allegedly located. Id. at 8. Plaintiff asserts that Defendant Ortiz manufactured the false photographs. See id. at 11. Plaintiff's disciplinary hearing was conducted (by who we now know is) Lieutenant H. Ferrel, who found Plaintiff guilty of possessing the phone and assessed 90 days of lost credit. See id. at 18.

Plaintiff filed an administrative appeal, which was denied at the second level by Defendant Ortiz and signed by Warden Covello. See id. at 9. As will be discussed in further detail below, Plaintiff contends that Defendant Ortiz mishandled his appeal by ignoring the primary issue Plaintiff raised: the retaliatory destruction of his typewriter and cover-up. See id. Plaintiff's third level appeal was “granted in part.” See id. at 10. Ultimately, after receiving a new hearing, Plaintiff was found not guilty of the cell phone-related violation. See id.

B. Procedural History

On March 2, 2021, Plaintiff filed a complaint against “P. Covello, Warden; J. Martinez, Captain (A); E. Ortiz, Corr. Lt.; H. Terrel, Corr. Lt.; C. Godinez, Corr. Sgt.; and T. McWay, Corr. Officer.” Compl. at 1. In section 2 of the Complaint, Plaintiff elaborates that he brings his claims against Patrick Covello as acting Warden of RJD, J. Martinez as acting Correctional Captain, E. Ortiz as Correctional Lieutenant, H. Terrel as Correctional Lieutenant, C. Godinez as Correctional Sergeant, and T. McWay as Correctional Officer. Compl. at 2-4.

On June 30, 2021, the Court dismissed Plaintiff's claims against Warden Covello for failure to state a claim and directed the U.S. Marshal to effect service on the remaining Defendants. Doc. No. 4. Thereafter, an issue arose as to “Defendant H.


Terrel's” employment status at RJD, and defense counsel was ordered to investigate. Doc. No. 22. According to defense counsel, “[a]fter diligent and thorough inquiry to the California Department of Corrections and Rehabilitation Department (CDCR) of Human Resources Division it was determined that CDCR has no record of a correctional officer ‘H. Terrel' ever being employed by the Department.” Doc. No. 26.

On January 26, 2021, Plaintiff submitted a letter to the Court indicating that he incorrectly identified Defendant “H. Terrel,” and that the correct spelling is “H. Ferrel.” Doc. No. 30.

II. Motion for Leave to Amend

Rule 15(a) of the Federal Rules of Civil Procedure provides that leave to amend pleadings “shall be freely given when justice so requires.” Fed.R.Civ.P. 15. However, once a district court has issued a scheduling order under Rule 16 establishing a timetable for amending pleadings, the liberal standards of Rule 15 no longer govern. See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992). Under Rule 16, “[a] schedule may be modified only for good cause and with the judge's consent.” Fed.R.Civ.P. 16(b)(4). Within this context, good cause is measured by the diligence of the party seeking the amendment. Johnson, 975 F.2d at 609. “Although the existence or degree of prejudice to the party opposing the modification might supply additional reasons to deny a motion, the focus of the inquiry is upon the moving party's reasons for seeking modification.” Id. at 609.

In ruling on matters such as these, which involve the supervision of the pretrial phase of litigation, “[t]he district court is given broad discretion.” Miller v. Safeco Title Ins. Co., 758 F.2d 364, 369 (9th Cir. 1985). If the district court finds a lack of diligence, “the inquiry should end.” Johnson, 975 F.2d at 609. If, however, the movant meets the Rule 16 burden, the Court proceeds to considering the motion under the usual standard of Rule 15.

“Rule 15(a) is very liberal and leave to amend ‘shall be freely given when justice so requires.'” AmerisourceBergen Corp. v. Dialysist West, Inc., 445 F.3d 1132, 1136 (9thCir. 2006) (quoting Fed.R.Civ.P. 15(a)).


Courts consider “undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party, and futility of the proposed amendment” in deciding whether justice requires granting leave to amend under Rule 15. Moore v. Kayport Package Express, Inc., 885 F.2d 531, 538 (9th Cir. 1989) (citing Foman v. Davis, 370 U.S. 178, 182 (1962)); see also Cervantes v. Zimmerman, No. 17-cv-1230-BAS-NLS, 2019 U.S. Dist. LEXIS 39789, at *8 (S.D. Cal. Mar. 12, 2019) (“Whether to grant a motion to amend depends on five factors: (1) bad faith, (2) prejudice to the opposing party, (3) futility, (4) undue delay, and (5) whether the plaintiff has previously amended.”) (citing Western Shoshone Nat. Council v. Molini, 951 F.2d 200, 204 (9th Cir. 1991)).

Plaintiff seeks leave to amend “to correctly identify one erroneously misidentified defendant . . . and add one additional defendant who became indispensable as the case progressed, and a state law cause of action[,] which also has become necessary as the facts of the case became known.” Doc. No. 33 at 1. According to the operative Scheduling Order, any motion to amend the pleadings was due no later than November 19, 2021. See Doc. No. 16. Plaintiff filed his motion on February 9, 2022. See Doc. No. 33. Therefore, his request is governed by Rule 16.

A. Rule 16 Good Cause

“Good cause” exists if a party can demonstrate that the schedule “cannot...

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