Panah v. Cal. Dep't of Corr. & Rehab.

• Decision Date: 29 September 2020
• Docket Number: Case No. 14-00166 BLF (PR)
• Parties: HOOMAN PANAH, Plaintiff, v. STATE OF CALIFORNIA DEPT. OF CORRECTIONS AND REHABILITATION, et al., Defendants.
• Court: U.S. District Court — Northern District of California

HOOMAN PANAH, Plaintiff,
v.
STATE OF CALIFORNIA DEPT. OF CORRECTIONS AND REHABILITATION, et al., Defendants.

Case No. 14-00166 BLF (PR)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

September 29, 2020

ORDER GRANTING MOTION TO DISMISS CLAIMS AS UNTIMELY; DENYING MOTION FOR SANCTIONS; SETTING BRIEFING SCHEDULE ON REMAINING CLAIMS

(Docket. Nos. 162, 163)

Plaintiff, an inmate on death row at California's San Quentin State Prison ("SQSP"), filed a civil rights complaint under 42 U.S.C. § 1983, alleging unconstitutional acts by SQSP correctional officers. Dkt. No. 1. The operative complaint in this action is Plaintiff's second amended complaint ("SAC") along with a supplemental complaint. Dkt. Nos. 54, 67. The Court found the SAC and supplemental stated cognizable claims, and ordered the matter served on Defendants. Dkt. No. 69. Defendants Anderson, Chappell, Ebert, Givens, Hamilton, Luna, McClelland, Odom, Robberecht, and Welton filed a motion for sanctions and motion to dismiss. Dkt. Nos. 162, 163. Plaintiff filed several opposition papers in response. Dkt. Nos. 177, 181, 184. Defendants filed a reply, Dkt. No. 179, and a sur-reply, Dkt. No. 203, with the Court's leave. Dkt. No. 202.

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For the reasons discussed below, Defendants motion to dismiss based on untimeliness grounds is GRANTED. Defendants' motion for sanctions is DENIED.

I. DISCUSSION

I. Procedural History

Plaintiff filed this action on January 12, 2014, with the assistance of retained legal counsel. Dkt. No. 1. Plaintiff claimed that Defendants CDCR, Chappell, Jackson, Luna, Hamilton, Odom, and Anderson "instigated, provoked, encouraged, facilitated and/or aided and abetted" an inmate named Joseph Barrett who stabbed Plaintiff on February 4, 2012, during yard time on SQSP's death row. Id. at 2-4.

On March 19, 2015, the Court partially granted Defendants' dispositive motions. Dkt. No. 22. The Court dismissed Plaintiff's unexhausted claims against Defendants Chappell, Jackson, Luna, and Hamilton, and Plaintiff's immunity-barred claims against the CDCR. Id. at 17, 19. The Court also found one Bane Act claim cognizable against Defendant Odom and dismissed with leave to amend insufficiently pled claims against Defendants Anderson and Odom. Id. at 21-22. The Court also noted that Plaintiff's counsel became ineligible to practice law on November 17, 2014, id. at 2, fn. 2, and later accepted Plaintiff's notice to continue this matter in pro se. Dkt. No. 25.

On June 17, 2015, Plaintiff filed a first amended complaint("FAC") with regards to the February 4, 2012 incident, to include state and federal law claims against Defendants Anderson and Odom. Dkt. No. 26. In a screening order, the Court found cognizable Plaintiff's Eighth Amendment and negligence per se claims against Defendants Anderson and Odom, and a Bane Act claim against Defendant Odom. Dkt. No. 38 at 4-5. The Court granted Plaintiff leave to amend the remainder of his insufficiently pled claims against Defendants Anderson and Odom. Id. at 1-9.

On November 13, 2015, Plaintiff filed a second amended complaint ("SAC") that

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consisted of 613 pages. Dkt. No. 54. The Court limited its initial review to the first 219 pages of pleading without reference to any exhibits filed in support. Dkt. No. 64. The SAC attempted to name twenty-five individual defendants and seven categories of Doe defendants, and included a year's worth of alleged harassment by prison staff preceding the original February 4, 2012 stabbing, through "taunts and slurs," "stalking," "bullying, oppression, thefts of an destruction of legal documents," "destruction of electronic appliances," and mishandling of Plaintiff's administrative grievances. Dkt. No. 54 at 54-81. On November 18, 2016, Plaintiff filed, with the Court's permission, a supplemental to the SAC. Dkt. No. 67.

The Court screened the SAC and the supplemental. Dkt. Nos. 64, 69. Pursuant to these orders, the following claims were found cognizable against the Defendants as neatly presented by Defendants in their motion to dismiss, Dkt. No. 163 at 9:

1	First Amendment (retaliation)	Odom, Robberecht
2	First Amendment (legal mail)	Givens, McLelland, Robberecht, Welton
3	Sixth Amendment (legal mail)	Givens, McLelland, Robberecht, Welton
4	Eighth Amendment (deliberate; indifference to safety)	Anderson, Ebert, Odom, Robberecht
5	California Constitution claims; equivalent to the federal claims; recognized above	Same as above
6	Bane Act (Cal. Civil Code § 43)	Odom
7	Bane Act (First Amendment)	Givens, McLelland, Robberecht, Welton
8	Negligence Per Se	Anderson, Ebert, Odom, Robberecht
9	Civil Conspiracy	Anderson, Hamilton, Odom, Robberecht
10	Fourteenth Amendment (due; process	Chappell, Givens, Jackson, Luna,; McLelland, Moore, Robberecht,; Rodriguez1

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Dkt. Nos. 64, 69, 91.

Defendants Anderson, Chappell, Ebert, Givens, Hamilton, Luna, McLelland, Odom, Robberecht, and Welton appeared by waiver of reply. Dkt. Nos. 114, 137.

II. Plaintiff's Claims

As Defendants have summarized, Plaintiff's claims fall into three categories. Dkt. 163 at 10. Claims 4, 5, and 8 against Defendant Anderson relate to her actions during the February 4, 2012 stabbing. See supra at 3. Claim 9 against Anderson and Claims 4, 5, 6, 8, and 9 against Defendants Ebert, Hamilton, Odom, and Robberecht relate to Plaintiff's claims of harassment for a year prior to the February 4, 2012 incident. Id. Claims 1, 2, 3, 5, 7, and 10 against Defendants Chappell, Givens, Luna, McLelland, Odom, Robberecht, and Welton relate to searches of Plaintiff's cell on August 21, 2011 and October 23, 2011. Id. The claims are summarized below.

A. Stabbing Incident and Response - Defendant Anderson (Claims 4, 5, 8)

Plaintiff claims that Defendant Anderson, who was the gunner in the guard tower at the time, watched and failed to intervene during an attack on February 4, 2012, when he was stabbed by another inmate. Dkt. Nos. 54-5 at 1, 54-9 at 2, 54-11 at 2, 54-16 at 4, 54-30 at 10-13, 54-32 at 3.

B. Harassment Allegations - Defendants Anderson, Ebert, Hamilton, Odom, and Robberecht (Claims 4, 5, 6, 8, 9)

Plaintiff claims that for approximately one year prior to the February 4, 2012 incident, he was the victim of "terroristic abuses," including "racist, ethnic & religious taunts and slurs," and "stalking-harassment, bullying, oppression," by Defendants Odom and Robberecht. Dkt No. 54-15 at 2, 54-25 at 3. Plaintiff claims he told Defendant Ebert about the harassment by Defendant Robberecht in an interview on December 5, 2011, Dkt.

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No. 54-1 at 6, by letter dated December 6, 2011, Dkt. No. 54-1 at 2-4, and in person on December 7, 2011, Dkt. No. 54-24 at 11. See also Dkt. Nos. 54-15 at 2, 54-24 at 12-13, 54-28 at 13. Plaintiff does not describe Defendant Ebert's response.

The Court also screened an additional claim against Defendants Anderson, Odom, Hamilton, and Robberecht for civil conspiracy based on Plaintiff's allegations that they "formed an oral and/or implied agreement to commit a wrongful act, including but not limited to, instigating and agitating violence against Plaintiff because of his Iranian heritage, Persian, race, and Muslim faith" and "agreed to spread false stories that Plaintiff was a child molester and instigated violence against Plaintiff which caused injury to Plaintiff." Dkt No. 64 at 14, citing Dkt. No. 54-31 at 11-12.

Plaintiff submitted an inmate grievance, Log No. SQ-12-00010, on December 15, 2011, about his conflict with Defendant Robberecht which he had reported to Defendant Ebert. Ex. C to Defs.' Request for Judicial Notice ("RJN"), Dkt. No. 163-2 at 100-101. The appeal was denied on June 29, 2012. Id.

Plaintiff alleges that he submitted another inmate grievance on February 19, 2012, about the response to the February 4, 2012 stabbing, and included allegations of harassment against Defendant Odom. Dkt. No. 54-33 at 12-13. The appeal did not make any harassment or conspiracy allegations against Defendants Anderson, Ebert, Hamilton, or Robberecht. Id. Plaintiff alleges that he attempted to follow-up on the status of the grievance several times through April 18, 2013. Dkt. Nos. 54-33 at 3-10, 54-35 at 5-6. Ultimately, the grievance was not processed. Dkt. No. 22 at 5.

The Victims Compensation and Government Claims Board ("Board") received a government claim from Plaintiff and his mother on August 3, 2012. RJN, Ex. B; Dkt. No. 163-2 at 16-17. The claim included allegations on the response to Plaintiff's February 4, 2012 stabbing and allegations of harassment by Defendants Odom, Robberecht, "et al." Id. The Board rejected the claim in a letter dated October 18, 2012. Dkt. No. 163-2 at 15.

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C. Cell Search Allegations - Defendants Chappell, Givens, Luna, McLelland, Odom, Robberecht, Welton (Claims 1, 2, 3, 5, 7, 10)

Plaintiff states in Claims in 1, 2, 3, 5, 7, and 10 that searches of his cell on August 21 and October 23, 2011: (1) were conducted with a retaliatory intent to intimidate Plaintiff and deter him from making complaints against correctional officers; (2) consisted of a breach of the confidentiality of his legal mail; (3) interfered with his right to consult with capital counsel; and (4) destroyed his personal property without due process. Dkt. Nos. 54-1 at 3, 54-24 at 7-10, 54-71 at 11; see Dkt. Nos. 64, 69, 91. Plaintiff filed an inmate grievance, Log No. SQ-12-00151, which was exhausted on August 13, 2012. RJN, Ex. D; Dkt. No. 163-2 at 118-119. Liberally construed, the Court found these allegations were cognizable as violations of Plaintiff's rights under the First, Sixth, and Fourteenth Amendments. Dkt. No. 69.

III. Motion to Dismiss

A. Standard of Review

Failure to state a claim upon which relief can be granted is grounds for dismissal under Rule 12(b)(6). Dismissal for failure to state a claim is a ruling on a question of law. See Parks School of Business, Inc., v. Symington, 51 F.3d 1480, 1483 (9th Cir. 1995)...