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June 5, 2012
CHARLES JONES,PLAINTIFF,v.DISTRICT ATTORNEY, ET AL.,DEFENDANTS.
ORDER GRANTING IN PART PLAINTIFF'S MOTION FOR RECONSIDERATION (Doc. 9.) ORDER FOR CLERK TO REOPEN CASE ORDER DISMISSING COMPLAINT FOR FAILURE TO STATE A CLAIM, WITH LEAVE TO AMEND THIRTY DAY DEADLINE
Charles Jones ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on December 19, 2011. (Doc. 1.) On January 20, 2012, Plaintiff consented to the jurisdiction of a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1), and no other parties have appeared. (Doc. 5.)
The Court screened the Complaint pursuant to 28 U.S.C. § 1915A and entered an order on April 24, 2012, dismissing the Complaint for failure to state a claim, with leave to file a petition for writ of habeas corpus. (Doc. 7.) On May 17, 2012, Plaintiff filed a motion for reconsideration of the order dismissing this action. (Doc. 9.)
Rule 60(b)(6) allows the Court to relieve a party from an order for any reason that justifies relief. Rule 60(b)(6) "is to be used sparingly as an equitable remedy to prevent manifest injustice and is to be utilized only where extraordinary circumstances . . ." exist. Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008) (internal quotations marks and citation omitted). The moving party "must demonstrate both injury and circumstances beyond his control . . . ." Id. (internal quotation marks and citation omitted). In seeking reconsideration of an order, Local Rule 230(k) requires Plaintiff to show "what new or different facts or circumstances are claimed to exist which did not exist or were not shown upon such prior motion, or what other grounds exist for the motion."
"A motion for reconsideration should not be granted, absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law," Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (internal quotations marks and citations omitted, and "[a] party seeking reconsideration must show more than a disagreement with the Court's decision, and recapitulation . . . " of that which was already considered by the Court in rendering its decision," U.S. v. Westlands Water Dist., 134 F.Supp.2d 1111, 1131 (E.D. Cal. 2001).
Plaintiff argues that his case should not have been dismissed, because he requested an injunction due to violation of the Americans with Disabilities Act ("ADA"), which was not addressed by the Court, and because the claim concerning his state court case is a due process claim which was appropriately brought in a section 1983 action.
Claims arising from State Court Proceedings
Plaintiff argues that the claims arising from his state court proceedings were appropriately brought in a § 1983 action as a claim for violation of his rights to due process. Plaintiff alleged in the Complaint that during his state court proceedings, the trial court refused to appoint counsel; the District Attorney refused to turn over evidence; and his defense attorneys allowed evidence to be presented that they knew was false, allowed perjured testimony, and aided the prosecutor in allowing perjured testimony.
When a prisoner challenges the legality or duration of his custody, or raises a constitutional challenge which could entitle him to an earlier release, his sole federal remedy is a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475 (1973); Young v. Kenny, 907 F.2d 874 (9th Cir. 1990), cert. denied 11 S.Ct. 1090 (1991). "[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." Wilkinson v. Dotson, 544 U.S. 74, 81-2, 125 S.Ct. 1242, 1248 (2005).
Plaintiff's allegations in the Complaint clearly challenge the validity of his underlying criminal conviction and, therefore, Plaintiff's sole federal remedy is a writ of habeas corpus. Thus, Plaintiff fails to state a claim under § 1983 for the violation of his rights during his state court proceedings. The Court finds that the deficiencies outlined above are not capable of being cured by amendment. 28 U.S.C. § 1915(e)(2)(B)(ii); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). Therefore, with respect to this claim, Plaintiff has not demonstrated that the Court committed clear error, or presented the Court with new information of a strongly convincing nature, to induce the Court to reverse its prior decision.
ADA Claim
Plaintiff argues that he requested an injunction due to violation of the ADA in his Complaint, which the Court did not address in the screening order. The Court has examined the Complaint and finds that Plaintiff is correct. Plaintiff alleges in the Complaint that on December 14, 2011, he was told he could not be transferred from Salinas Valley State Prison ("SVSP") to another facility because he is mobility impaired. Plaintiff uses a cane for walking and requires level terrain with no obstruction in his path of travel. Plaintiff alleges that many other prisons have better terrain than SVSP, and that other inmates without disabilities are being transferred to other prisons. Plaintiff argues that he should have the same rights as other inmates. Plaintiff claims that he is being discriminated against for being mobility impaired, in violation of the ADA.
Title II of the ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132.
"In order to state a claim under Title II of the ADA, a plaintiff must allege:
(1) he 'is an individual with a disability;' (2) he is otherwise qualified to participate in or receive the benefit of some public entity's services, programs, or activities; (3) he was either excluded from participation in or denied the benefits of the public entity's services, programs, or activities, or was otherwise discriminated against by the public entity; and (4) 'such exclusion, denial of benefits, or discrimination was by reason of [his] disability. ' "
O'Guinn v. Lovelock Correctional Center, 502 F.3d 1056, 1060 (9th Cir. 2007) (quoting McGary v. City of Portland, 386 F.3d 1259, 1265 (9th Cir.2004 and Thompson v. Davis, 295 F.3d 890, 895 (9th Cir.2002) (per curiam)). "Similarly, to state a claim under the Rehabilitation Act, a plaintiff must allege (1) he is an individual with a disability; (2) he is otherwise qualified to receive the benefit; (3) he was denied the benefits of the program solely by reason of his disability; and (4) the program receives federal financial assistance." O'Guinn at 1060 (citing Duvall v. County of Kitsap, 260 F.3d 1124, 1135 (9th Cir.2001)).
It appears that Plaintiff may be able to state an ADA claim. However, Plaintiff has not named any defendant in the Complaint against whom his ADA claim can proceed. For an ADA claim, Plaintiff may name the appropriate public entity or state officials in their official capacities, but he may not name individual prison employees in their personal capacities. Shaughnessy v. Hawaii, No. 09-00569 JMS/BMK, 2010 WL 2573355, at *8 (D.Hawai'i Jun. 24, 2010); Anaya v. Campbell, No. CIV S-07-0029 GEB GGH P, 2009 WL 3763798, at *5-6 (E.D.Cal. Nov. 9, 2009); Roundtree v. Adams, No. 1:01-CV-06502 OWW LJO, 2005 WL 3284405, at *8 (E.D.Cal. Dec. 1, 2005). The ADA defines public entity" in relevant part as "any State or local government" or "any department, agency, special purpose district, or other instrumentality of a State or States or local government." 42 U.S.C. § 12131(1)(A)-(B). "The term 'public entity' does not include individuals." Shaughnessy, 2010 WL 2573355 at *8 (D.Hawai'i Jun. 24, 2010) (quoting Hardwick v. Curtis Trailers, Inc., 896 F.Supp. 1037, 1038-39 (D.Or.1995) (finding that individual liability is precluded under ADA Title II) (citing Miller v. Maxwell's Int'l, Inc., 991 F.2d 583 (9th Cir.1993)); see also Vinson v. Thomas, 288 F.3d 1145, 1156 (9th Cir. 2002).
For these reasons, Plaintiff fails to state a claim for violation of his rights under the ADA. Plaintiff shall be granted an opportunity to amend this claim.
Equal Protection
It also appears that Plaintiff may be able to state an equal protection claim. Therefore, the Court here provides Plaintiff with the legal standard for his review.
The Equal Protection Clause requires that persons who are similarly situated be treated alike. City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 439, 105 S.Ct. 3249 (1985); Shakur v. Schriro, 514 F.3d 878, 891 (9th Cir. 2008). An equal protection claim may be established by showing that Defendants intentionally discriminated against Plaintiff based on his membership in a protected class, Comm. Concerning Cmty. Improvement v. City of Modesto, 583 F.3d 690, 702-03 (9th Cir. 2009); Serrano v. Francis, 345 F.3d 1071,1082 (9th Cir. 2003), Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001), or that similarly situated individuals were intentionally treated differently without a rational relationship to a legitimate state purpose, Engquist v. Oregon Department of Agr., 553 U.S. 591, 601-02, 128 S.Ct. 2146 (2008); Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073 (2000); Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008); North Pacifica LLC v. City of Pacifica, 526 F.3d 478, 486 (9th Cir. 2008).
Plaintiff alleges facts characteristic of an equal protection claim. However, Plaintiff has not named or alleged facts against any defendant in the Complaint against whom an equal protection claim may proceed. Plaintiff shall be granted an opportunity to amend this claim.
The Court finds that Plaintiff has shown cause for the Court to grant his motion for reconsideration in part, and this case shall be reopened. Plaintiff's claim for violation of his rights during state court proceedings shall remain dismissed without leave to amend. However, Plaintiff shall be granted leave to amend the Complaint to cure the deficiencies described above in his claims for discrimination. Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend 'shall be freely given when justice so requires.'" The Court will allow Plaintiff thirty days in which to file an amended complaint, curing the deficiencies identified in this order. Lopez, 203 F.3d at1126-30.
The amended complaint should be brief, but must state what each named defendant did that led to the deprivation of Plaintiff's constitutional or other federal rights. Fed. R. Civ. P. 8(a); Iqbal, 129 S.Ct. at 1948-49; Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Plaintiff should note that although he has been given the opportunity to amend, it is not for the purposes of adding unrelated claims or claims arising after December 19, 2011. In addition, Plaintiff should take care to include only those claims for which he has exhausted his administrative remedies prior to December 19, 2011.
Finally, Plaintiff is advised that Local Rule 220 requires that an amended complaint be complete in itself without reference to any prior pleading. As a general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once an amended complaint is filed, the original complaint no longer serves any function in the case. Therefore, in an amended complaint, as in an original complaint, each claim and the involvement of each defendant must be sufficiently alleged. The amended complaint should be clearly and boldly titled "First Amended Complaint," refer to the appropriate case number, and be an original signed under penalty of perjury.
Based on the foregoing, it is HEREBY ORDERED that:
1. Plaintiff's motion for reconsideration, filed on May 17, 2012, is GRANTED in part;
2. The Clerk is directed to reopen this case;
3. Plaintiff's claim for violation of his rights during state court proceedings remains dismissed with leave to file a new petition for writ of habeas corpus, pursuant to the Court's order of April 24, 2012;
4. Plaintiff's claims for discrimination under the ADA and for equal protection violations are dismissed for failure to state a claim, with leave to amend;
5. Plaintiff is granted leave to amend the Complaint within thirty (30) days from the date of service of this order, as instructed above;
6. The Clerk's Office shall send Plaintiff a civil rights complaint form;
7. Plaintiff shall caption the amended complaint "First Amended Complaint" and refer to the case number 1:11-cv-02090-GSA-PC; and
8. If Plaintiff fails to comply with this order, this action will be dismissed for failure to state a claim upon which relief may be granted.
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May 17, 2012
U.S. Under Secretary of Education to Deliver Commencement Address to University of San Francisco's School of Education Graduates
U.S. Under Secretary of Education Martha Kanter will address the University of San Francisco's School of Education spring commencement at 6:00 p.m. PT on Friday, May 18, in San Francisco, Calif. She will challenge students to take what they've learned at USF and use it to create positive change...
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U.S. Department of Education Deputy Assistant Secretary to Deliver Keynote Address at Leadership Connections Conference
U.S. Department of Education Deputy Assistant Secretary for Policy and Early Learning Jacqueline Jones will deliver the keynote address at the Leadership Connections Conference, organized by McCormick, on Thursday, May 17 at the Westin Hotel in Wheeling, Ill.
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U.S. Department of Education Official to Discuss Administration's Education Agenda, Host Meeting Honoring and Elevating the Nation's Teachers at Conference and School Visit in Portland
Massie Ritsch, deputy assistant secretary for External Affairs and Outreach at the U.S. Department of Education, will visit Portland, Maine on Thursday, May 17, to discuss the Obama Administration's education agenda with school business officials and to visit a school and collect feedback on an...
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U.S. Deputy Assistant Secretary Jason Snyder will visit Emerson Elementary School on Thursday, May 17, at 9:30 a.m. CT, in Kansas City, Kan. The school is using School Improvement Grant funds to turn around the school and to improve student achievement. Since 2009, the state of Kansas has...
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Education Department Senior Official to Participate in Panel at Education Writers Association Seminar
Jim Shelton, the Education Department's assistant deputy secretary for Innovation and Improvement, will discuss the federal Promise Neighborhoods program on a panel at the 65th Education Writers Association (EWA) national seminar at 3:55 p.m. ET on Thursday, May 17, in Philadelphia.
May 15, 2012
Brenda Girton-Mitchell, director of the U.S. Department of Education's Center for Faith-based and Neighborhood Partnerships, will participate in a "Together for Tomorrow...
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Assistant Deputy Secretary to Host Town Hall on College Affordability at Akron's Buchtel High School
The U.S. Department of Education's Assistant Deputy Secretary for Innovation and Improvement Jim Shelton will host a town hall at Buchtel High School in Akron as part of a series of conversations the Education Department is having with students and families on college affordability. The forum...
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The U.S. Department of Education will host the artworks of students from 15 major art museums' education programs at a ribbon-cutting ceremony for Museums: pARTners in Learning on Tuesday, May 15 at the Education Department.
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U.S. Secretary of Education to Give Remarks at City Year's National Leadership Summit in Washington, D.C.
U.S. Secretary of Education Arne Duncan will participate in City Year's National Leadership Summit at the Grand Hyatt in Washington, D.C.
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Under Secretary of Education Martha Kanter to Deliver Commencement Address at Columbia University's 2012 Teachers College Convocation
U. S. Under Secretary of Education Martha Kanter will deliver the spring commencement address at Columbia University's 2012 Teachers College Convocation on Tuesday, May 15 in New York City. In her remarks, Kanter will discuss the vital role that high-quality teachers must play in preparing...


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Floyd Mayweather insists again that Andre Berto will be his last fight Saturday at MGM Grand
When approached with the question during the introductory news conference, Floyd Mayweather detailed his plans for the day after Saturday's fight.
"I just want to sit back and watch some football," he said.
According to Mayweather (48-0, 26 KOs) life after boxing begins as soon as his final dance inside the ring at the MGM Grand ends.
He will look to defend his WBC welterweight and WBA super world welterweight titles against former two-time welterweight champion Andre Berto (30-3, 23 KOs) on pay-per-view ($74.95 or $64.95).
This is the final fight in Mayweather's six-fight deal with Showtime that he signed in 2013, making the move from HBO.
"All 48 of my fights have been hard. None have been easy," Mayweather said. "All played a major key. I feel that every fighter is an artist and they all take pictures their own way. I'm just one of the very best artists.
"I've taken my time, kept my eye on the prize and done what I've had to do. So I'm able to make a choice when to retire. Most fighters really couldn't."
Two of those fights (Manny Pacquiao and Canelo Alvarez) ranked as the top two largest gates in Nevada. The much-anticipated fight with Pacquiao, generated the largest gate ($72 million) and also generated more than $400 million in pay-per-view revenue and had $4.6 million in pay-per-view sales.
Mayweather is scheduled to receive a guaranteed base of $32 million for the fight against Berto.
"Boxing has always been work to me, a job. If I could say anything to a youngster taking up boxing it would be to be smart and not take a lot of punches," Mayweather said. "It's called the sweet science for a reason. Hit and not be hit, make a lot of money without taking a lot of punishment. That's what it's about."
Despite all of the money that he's deposited into his bank account over the years, Mayweather hasn't been able to avoid controversy, whether stemming from his domestic violence incidents or this week, when a report surfaced that he violated the anti-doping rules.
According to a report by SB Nation and writer Thomas Hauser, Mayweather received an IV of saline and vitamins, something that was banned under the World Anti-Doping Agency before the May 2 fight aginast Pacquiao.
The substances in the IV are not banned, but the fact that it was given by IV is against the USADA rules.
On Thursday, USADA, which administered the testing during the fight, disputed the initial report by Hauser.
In a statement, Mayweather also denied any wrongdoing. An excerpt of his statement, read: "I did not commit any violations of the Nevada or USADA drug testing guidelines. I follow and have always followed the rules of Nevada and USADA, the gold standard of drug testing."
Nearly three weeks after the fight, Mayweather received an exemption from USADA.
All this happened while Pacquiao was denied a pain-killing injection by fight officials before the fight.
Fast forward to tonight and Mayweather, who has been heavily criticized for his choice of Berto, is prepared to ride off into the boxing sunset and close the book on his version of greatness.
"I've done a lot for this sport," he said. "Everyone used to be focused on heavyweights. My ultimate goal was to have everyone focus at whatever weight class I was.
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Contact the writer: email@example.com
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What Is It?
Encephalitis means inflammation of the brain. This inflammation usually is triggered by a viral infection, although sometimes it can be caused by a bacterial infection of the brain, such as Lyme disease. In some cases, symptoms are caused by direct infection of the brain. In other cases, the brain inflammation is caused by the immune system's response to the brain infection. Even if the immune system attack succeeds in eliminating the infection, it may injure the brain in the process. This is called post-infectious encephalitis.
Often, viruses that cause encephalitis also cause inflammation of the delicate tissues that cover the brain and spinal cord, which are called the meninges. This condition is meningitis. When encephalitis and meningitis occur together, it is called meningoencephalitis.
Of the many different viruses that can cause meningoencephalitis, enteroviruses (particularly coxsackievirus and echovirus) are the most common cause in the United States, particularly if the illness occurs in the summer or fall. Encephalitis also can be caused by the herpes simplex virus, which also causes cold sores and genital herpes. This type of encephalitis is less common but tends to be more severe. The mumps and measles viruses also can cause encephalitis, with mumps occurring most often in the winter or spring.


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Soros Holdings Limited was incorporated in the British Virgin Islands. Soros Capital in Bermuda. And Soros Finance Inc. was set up in Panama. It's there that the law firm Mossack Fonseca helped the rich and powerful avoid taxes and hide their wealth.
What's ironic about Soros' inclusion in the Panama Papers leak is his funding of the ICIJ — the international journalist network that's spearheaded reporting on the Panama Papers.


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UK: European Commission scales back colouring limit
The European Commission has scaled back plans to restrict the use of the colouring Sunset Yellow in drinks.
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Okay I got featherly to lay the egg and have corndogs, however i am unable to get satan to go away so i can get the vegetable oil anyone have any ideas?
117 Comments - Linear Discussion: Classic Style
If that is the case, that is much too picky. Obviously I'm still going through them too quickly.
Edit: Phew, finally. There is a slightly audible vinyl crackle at the end of each section, so maybe you really need to wait to hear that stop, but it's not very noticable.
Yeah, I'm not sure what to say. What I did was I watched my PS3, and once the HDD light finally stopped flashing like drunk college girls in front of a camera, I hit X to hear the next clip or Square to go to my inventory and put on a new record. Takes a while but it worked eventually.
Good to see that this is the case. Perhaps we can spread it around to Gamefaqs and to PS3 trophies? It might be helpful...
EDIT: I've posted this as a glitch on gamefaqs so hopefully it will get round...
i just got the destroyer robot and am still stuck in the clone chamber.
I tried going through the mole tunnels but sam still says that he doesn't have time to wander the tunnels.
I also didn't get the whole girl stinky taking skunkape for a ride messages (just the whole granite projection, fog, scam that flint was telling me about).
someone else suggested to just use the tunnels, being that i can't does that mean that im stuck on a bug?
This comment may contain spoilers!
i still can't go through the tunnels even after getting the destroyer.tabstis;370532 said:[spoiler]First things first, you need to get to Flint.[/spoiler]
[spoiler]Have you revealed the obstacle in the way?[/spoiler]
[spoiler]Use the fog machine to show the lasers.[/spoiler]
[spoiler]Next, you'll need to get Skunkape to come down[/spoiler]
[spoiler]It seems as though he's really interested in the toys[/spoiler]
[spoiler]Perhaps the projector might help?[/spoiler]
[spoiler]Have you checked your inventory for anything that might work?[/spoiler]
[spoiler]Swap the photo of the toybox for the photo of the cake[/spoiler]
[spoiler]Now that Skunkape's down, you'll need to strike a deal with him.[/spoiler]
[spoiler]I think he might be scared about that bomb...[/spoiler]
[spoiler]Once you have the destroyer, you can use one of the tunnels.[/spoiler]
[spoiler]Use the right tunnel to head to Boscotech Labs.[/spoiler]
sam still says that this is no time to be wandering around mole tunnels
never mind.ztide;373538 said:i still can't go through the tunnels even after getting the destroyer.
sam still says that this is no time to be wandering around mole tunnels
apparently due to horrible camera angles, there are actually 3 tunnels, the left 2 (can only see one of them) don't allow me to walkthrough, but the right one does
I'm gonna need a video of someone getting to the cloning facility. I can't get there without one.
http://www.youtube.com/user/Quadsux#p/u/5/LaWxTEa8u7oCannonMan;374369 said:I'm gonna need a video of someone getting to the cloning facility. I can't get there without one.
At about 10 minutes, he heads to the cloning chamber.
its not meant to make sense, also in 205 he lays an egg and you use it in 204 due to time travel. We also don't have talking dogs, rabbits, moles, sentient bacteria, chickens, living statues, moia heads, also we can't drive to the moon, so a male chicken laying an egg isn't unlikely in that world.Torte;377673 said:He is meant to be male and to be no hen, right? So why is he supposed to lay an egg?


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Excellent Visibility
Comfortable Cockpit
The Downeaster 41 Pilot House is an American made, long range traditional bluewater cruiser. She is a solid boat built to Lloyds 100 A1 standards. Her large stainless steel framed windows provide excellent all-around visibility from the salon and pilot house. Her bow sprit, wine glass stern and lap-strake topsides will garner approval from the most discerning traditionalist. Her full keel adds to her sea-kindly motion and her ability to cope with heavy weather. The cockpit is very comfortable with plenty of seating and good back rests.
Indian Summer has taken excellent care of her longtime owner, through the many miles of safe passage that swept past her keel, to countless destinations and innumerable hours of adventure. Indian Summer is ready for her next owners to realize their dreams.
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Additional Specs, Equipment and Information:
Boat Name
Indian Summer
Keel: Full
LOA: 41 ft 9 in
Beam: 11 ft 10 in
LWL: 29 ft 0 in
Maximum Draft: 4 ft 11 in
Displacement: 20500 lbs
Ballast: 8000 lbs
Total Power: 62 HP
Engine 1:
Engine Brand: Isuzu
Engine Model: C240P17
Engine/Fuel Type: Diesel
Engine Hours: 500
Engine Power: 62 HP
Fresh Water Tanks: (225 Gallons)
Fuel Tanks: (300 Gallons)
Engine, Mechanical & Electrical
- Izuzu C240P17 62hp main diesel engine (+/- 500 hours since rebuild)
- Velvet Drive transmission
- 24" prop
- Racor fuel filter/water separators—one for each tank
- Northern Lights 5kw M643-5N (TFII18B) generator (2620 hrs)
- Cruiseair 16,000 BTU reverse cycle AC/Heat
- Xantrex battery charger
- Xantrex 40TrueCharge remote display panel
- Optima batteries
- Autohelm ST6000+ auto pilot with remote
- ICOM IC-M120 VHF with hailer
- ICOM M72 hand-held VHF
- ICOM VHF mounted near inside helm
- Garmin GPSmap 4208
- Garmin GPSmap 230
- Magellan NAV 5200D GPS
- Datamarine depth
- Datamarine speed log
- Datamarine wind
- Midland 13-888 CB
- Flat-screen TV
- Blue Ray DVD player
- Stereo
- XM Radio (subscription needed)
- Ritchie compass at pedestal and Ritchie hand-held compass
- EPIRB (may need new battery and recertification)
- Ideal electric windlass
- Integral bow sprit with dual anchor rollers
- Delta Fast Set anchor
- Chain stopper for rode
- Stainless steel handrails
- Custom stainless steel frames around exterior fixed ports (not aluminum)
- SS opening ports
- Full set of cockpit cushions including back rests
- Large removable companionway doors with windows in lieu of hatch boards
- Pedestal mounted folding cockpit table
- Portable boarding ladder
- Lazarettes
- Fishing rod holders (2)
- Solar vent
- Avon 8-Person liferaft (needs recertification)
- Stereo speakers under bimini
- 2 Large opening hatches
- Teak steering wheel with SS spokes
- Recent large bimini
- Snap-it drink holders and binocular holders at pedestal
- Folding teak cockpit table at pedestal
- Winch handle holders in cockpit near helm
Sails & Sail Handling Equipment
- Genoa on roller furler and boom
- In-mast roller furling main
- Reacher
- Mainsail traveler forward of companionway
- Deck-stepped mast
- Up-graded Lewmar self-tailing primary winches
- Large port lights all-around for excellent visibility
- Long, strait settees to port and starboard
- Drop leaf wood table
- Overhead SS hand holds
- Bulkhead mounted barometer & temperature
- Teak fishing rod rack with offshore fishing rod and reel
- Tiled counter-top
- Top-loading fridge with small freezer
- Double SS sink
- Sharp Grill 2 convection oven
- Cabinets, drawers, shelves and racks for storage
- Hella turbo 12v fan
- The master cabin is forward
- Large V-berth with mahogany paneling to port and to starboard
- Access door forward to anchor rode
- Closets to port and starboard
- Small counter and drawers
- Mirror
- The guest cabin is opposite the galley with closet and berth
- Manual commode
- Sink with counter and cabinets above
- Shower
- Large mirror
- The main engine has approximately 500 hours on it since being pulled and rebuilt.
- The transmission was rebuilt as well.
- The exterior fixed window frames were replaced with stainless steel frames, so there is not the corrosion problem normally seen with aluminum frames.
- The cables to the interior steering have been removed but could easily be reinstalled. Steering from inside is still possible with the remote auto pilot.
- The settee cushions and the berth cushions are in excellent condition. The Sunbrella covered cockpit cushions, with piping on the edges are also in very good condition.
- Indian Summer's cockpit provides extraordinary lounging comfort whether underway, at the dock or swinging on the hook.
The Company offers the details of this vessel in good faith but cannot guarantee or warrant the accuracy of this information nor warrant the condition of the vessel. A buyer should instruct his agents, or his surveyors, to investigate such details as the buyer desires validated. This vessel is offered subject to prior sale, price change, or withdrawal without notice.
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United States District Court, Northern District of California
April 24, 2003
GARY E. BRAZINA, M.D., PLAINTIFF,v.THE PAUL REVERE LIFE INSURANCE COMPANY, UNUMPROVIDENT CORPORATION, THE CALIFORNIA DEPARTMENT OF INSURANCE, AND DOES 1 THROUGH 50, INCLUSIVE, DEFENDANTS.
MEMORANDUM AND ORDER Motion to Remand
Plaintiff Gary E. Brazina ("Brazina") filed a complaint in California state court against Paul Revere Life Insurance Company ("Revere") and Unumprovident Corporation ("Provident") (collectively "defendants"), alleging that defendants wrongfully withheld payment of total disability benefits due Brazina as an orthopedic surgeon. Brazina also brought claims against the California Department of Insurance ("DOI") for its approval of the policy language at issue, and later amended the caption of the complaint to include DOI. On January 22, 2003, Revere and Provident filed a notice of removal with this court, contending DOI was fraudulently joined. Now before the court is Brazina's Motion to Remand. Having considered the parties' arguments and submissions, and for the reasons set forth below, the court rules as follows.
Revere issued an individual income disability insurance policy to Brazina in 1988. In 1997, Brazina experienced a "herniated nucleus pulposis," or slipped disk, that resulted in alleged permanent numbness and muscle loss in his right arm. Brazina made a claim for total disability benefits under the policy in January 1998. A dispute arose between Provident, which acquired Revere as a wholly owned subsidiary in March 1997, and Brazina as to whether Brazina should receive total disability benefits at the level of an orthopedic surgeon. Brazina received orthopedic surgeon benefits between April 1998 and December 1998, but thereafter, Brazina contends he received only residual benefits. The policy at issue defines "Total Disability" as "because of Injury or Sickness: (a) You are unable to perform the important duties of Your Occupation; and (b) You are under the regular and personal care of a Physician." Notice of Removal, Exh. A. "Your Occupation" is "the occupation in which You are regularly engaged at the time You become Disabled." Id.
On December 11, 2002, Brazina filed a complaint in San Francisco Superior Court, alleging that Provident misrepresented the policy provisions by insisting that Brazina show surgery constituted all of his important duties, not just one of them. Brazina brought claims of breach of contract, misrepresentation, breach of covenant of good faith and fair dealing, and intentional infliction of emotional distress against Revere and Provident. Brazina also brought claims for a writ of mandamus ("claim five") and declaratory relief ("claim six") against DOI, contending that the DOI Commissioner ("Commissioner") should not have approved the relevant policy language because it was ambiguous and misleading. On December 18, 2002, Brazina filed an amended complaint adding DOI to the caption. Defendants removed the action to this court on January 22, 2003 on the basis of diversity of citizenship, alleging that Brazina fraudulently joined DOI to destroy diversity jurisdiction. The parties do not dispute that Brazina is a resident of California, Revere is a Massachusetts corporation and Provident is a Tennessee corporation. Brazina then filed this Motion to Remand on February 5, 2003.
As a general rule, an action is removable to a federal court only if it might have been brought there originally. 28 U.S.C. § 1441(a). The removal statute is strictly construed, and the court must reject federal jurisdiction if there is any doubt as to whether removal was proper. Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 1996). The defendants bear the burden of proving the propriety of removal. Id. If at any time before final judgment the court determines that it is without subject matter jurisdiction, the action shall be remanded to state court. 28 U.S.C. § 1447(c).
Defendants argue that DOI is fraudulently joined because no cause of action is or can be stated against it; thus, its citizenship should be disregarded for diversity jurisdiction purposes. In addition, even if there is a cause of action available, they argue that the claim is time barred and Brazina has not exhausted his administrative remedies. Further, defendants argue that DOI's citizenship should be disregarded for removal jurisdiction purposes because the claims are so misjoined that they amount to fraudulent joinder. The court concludes that (1) a claim for writ of mandamus raises a possible cause of action; (2) the defenses are not sufficient under California law to constitute no possible cause of action; (3) misjoinder of the claims does not rise to the level of fraudulent joinder; and (4) it is unnecessary to reach any other possible causes of action.
I. Threshold Issues
The court begins by addressing the procedural defects alleged by plaintiff and defendants.
Defendants contend that Brazina's failure to name DOI in the caption of his initial complaint and the Commissioner in the caption of any complaint warrant removal. Firstly, defendants offer no reasoning for their contention that omission of a non-diverse party from the caption of the initial complaint is an independent basis for diversity jurisdiction. Thus, this court will not reach the issue.*fn2 Secondly, it is clear from the complaint that the Commissioner is the real party in interest in this action. Even if DOI is an improper defendant, this defect is immaterial. The Ninth Circuit has held that when an improper defendant is indicated, the court may consider a complaint to have named the proper defendant "if the allegations in the body of the complaint make it plain that the party is intended as a defendant." Rice v. Hamilton Air Force Base Commissar 720 F.2d 1082, 1085 (9th Cir. 1983) (citing Hoffman v. Halden, 268 F.2d 280, 303-04 (9th Cir. 1959), overruled on other grounds by Cohen v. Norris, 300 F.2d 24, 29-30 (9th Cir. 1962)).*fn3 The contents of the complaint in this action demonstrate that the Commissioner is the party being sued. Moreover, the Commissioner apparently had notice and thus there was no prejudice, or at least he has not alleged any.
Brazina argues that remand is required because DOI did not sign the Notice of Removal. The "rule of unanimity" requires that all defendants in a state action must join in the removal petition. 28 U.S.C. § 1446(a). However, a judicially created doctrine provides an exception for parties who are fraudulently joined. Emrich v. Touche Ross & Co., 846 F.2d 1190, 1193 n. 1 (9th Cir. 1988). Defendants petitioned for removal on the basis that DOI is fraudulently joined; therefore, if this court finds that there is fraudulent joinder, DOI need not have joined the Notice of Removal.
II. Cause of Action
Removal of a civil action alleging claims against a non-diverse defendant is proper when the plaintiff has no basis for suing that defendant. Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 98 (1921). "If the plaintiff fails to state a cause of action against a resident defendant, and the failure is obvious according to the settled rules of the state, the joinder of the resident defendant is fraudulent." McCabe v. General Foods Corp., 811 F.2d 1336, 1339 (9th Cir. 1987).
This court finds that Brazina's petition for a writ of mandamus to challenge the DOI Commissioner's approval of the insurance policy language under section 10291.5 of the California Insurance Code is a viable cause of action. Section 10291.5 gives the Commissioner the duty and power to approve disability insurance policies. Subparagraph (b)(1) provides that "[t]he commissioner shall not approve any disability policy for insurance or delivery in this state . . . [i]f the commissioner finds that it contains any provision . . . which is unintelligible, uncertain, ambiguous, or abstruse, or likely to mislead a person to whom the policy is offered, delivered or issued." Cal. Ins. Code § 10291.5(b)(1). The Commissioner's decision is subject to judicial review in accordance with the California Code of Civil Procedure. Cal. Ins. Code § 10291.5(h).
The Ninth Circuit, relying on section 1094.5 of the California Code of Civil Procedure and Bixby v. Pierno, 4 Cal.3d 130, 137 (Cal. 1971), has stated that an insured may petition for a writ of mandamus requiring the Commissioner to revoke approval of a policy if the insured believes the Commissioner abused his discretion in approving the policy under section 10291.5.*fn4 Peterson v. American Life & Health Ins. Co., 48 F.3d 404, 410 (9th Cir.), cert. denied, 516 U.S. 942 (1995). A recent California case indicates that state courts would also accept a cause of action as expressed in Peterson for approval of a policy that violated section 10291.5. Van Ness v. Blue Cross of Cal., 87 Cal.App.4th 364, 371-72 (Cal. Ct. App. 2001). It is not entirely clear which type of writ the Van Ness court envisioned, but the language used by the court is not restrictive. Thus, among courts that have addressed the matter, there is a general willingness to allow a writ when an insured wishes to challenge a Commissioner's approval of a policy under section 10291.5.
"The proper method of obtaining judicial review of most public agency decisions is by instituting a proceeding for a writ of mandate." Bunnett v. Regents of Univ. of Cal., 35 Cal.App.4th 843, 848 (Cal. Ct. App. 1995) (citing Bodinson Mfg. Co. v. California Employment Comm'n, 17 Cal.2d 321, 328-30 (Cal. 1941)). There are two types of mandamus review: ordinary and administrative. See Cal. Civ. Proc. Code §§ 1085, 1094.5. Section 1094.5 of the California Civil Procedure Code, the section cited by Petersong provides for an administrative writ of mandate. Administrative mandamus is available only if the challenged decision results from a "proceeding in which, by law: 1) a hearing is required to be given, 2) evidence is required to be taken, and 3) discretion in the determination of facts is vested in the agency." Taylor v. State Pers. Bd., 101 Cal.App.3d 498, 502 (Cal. Ct. App. 1980) (emphasis omitted). If an agency is not required to hold a hearing, the agency's actions may be challenged through an ordinary writ of mandamus. Bunnett, 35 Cal.App.4th at 848 (citing Weary v. Civil Serv. Comm'n, 140 Cal.App.3d 189, 195 (Cal. Ct. App. 1983)).
It is not clear from the complaint whether Brazina is asking for an ordinary or an administrative writ. This court finds that it is likely to be an ordinary writ of mandamus because there is no statutory requirement that the Commissioner conduct an evidentiary hearing in order to approve an insurance policy.*fn5 See Cal. Ins. Code § 10290 (stating that Commissioner may approve policy in writing or by letting thirty days expire). Brazina must meet three requirements to have a cause of action for an ordinary writ under California Code of Civil Procedure section 1085.*fn6 "Generally, a writ will lie when there is no plain, speedy, and adequate alternative remedy; the respondent has a duty to perform; and the petitioner has a clear and beneficial right to performance."*fn7 Payne v. Superior Court, 17 Cal.3d 908, 925 (Cal. 1976). The court finds Brazina may satisfy all three requirements, and thus he has a possible cause of action for a writ of ordinary mandamus against the Commissioner.
Brazina likely meets the first requirement, since he has no alternative remedy which is plain, adequate, and speedy. Nowhere does the Insurance Code provide an administrative remedy for an insured to contest the Commissioner's approval of a policy form. Cf. Cal. Ins. Code § 10291.5(f) (insurer may request a hearing to appeal the Commissioner's withdrawal of approval). Defendants point to section 12921.3 of the Insurance Code, in which the Commissioner "shall receive complaints and inquiries, investigate complaints, prosecute insurers when appropriate . . . and respond to complaints and inquiries by members of the public concerning the handling of insurance claims. . . ." Cal. Ins. Code § 12921.3. This process is not a means of administrative appeal of the Commissioner's actions, but a method for the public to complain about the conduct of insurers. In fact, powers given to the Commissioner to respond to complaints do not include the "power to adjudicate claims." Cal. Ins. Code § 12921.4(a). Thus, it is possible for Brazina to show that no other remedy is available to him other than asking the court to adjudicate his claim against the defendants directly, which will not be speedy, or to compel the Commissioner to exercise his discretion and withdraw approval of the policy.
It is also possible for Brazina to meet the second and third requirements. There is most likely a duty to perform by the Commissioner. Section 12921 of California Insurance Code provides that the Commissioner "shall perform all duties imposed upon him or her by the provisions of this code and other laws . . . and shall enforce the execution of those provisions and laws." The Commissioner has a mandatory duty not to approve a policy that is found to be ambiguous or misleading. Cal. Ins. Code § 10291.5(b)(1). Brazina alleges that the policy is ambiguous, and he was led to believe that he had a benefit that was later denied by the insurer. If the policy is indeed ambiguous and misleading, then the Commissioner had a duty not to approve it. Moreover, Brazina likely has a clear and beneficial right to performance. Subparagraph (h) of section 10291.5 allows for judicial review of "any action taken by the commissioner under this section" and the "proceedings on review shall be in accordance with the [California] Code of Civil Procedure." Cal. Ins. Code § 10291.5(h). Both Peterson and Van Ness state that if an insured wishes to contest the language of an insurance policy, he may petition for a writ to require the Commissioner to withdraw approval of a policy.
Judicial review of an administrative decision under section 1085 of the California Code of Civil Procedure "`is limited to an examination of the proceedings before the [agency] to determine whether [its] action has been arbitrary, capricious, or entirely lacking in evidentiary support, or whether [it] has failed to follow the procedure and give the notices required by law.'" Strumsky v. San Diego County Employees Ret. Ass'n, 11 Cal.3d 28, 34 n. 2 (Cal. 1974) (alteration in original) (quoting Pitts v. Perluss 58 Cal.2d 824, 833 (Cal. 1962)). Whether the Commissioner acted arbitrarily is not for this court to decide. In considering fraudulent joinder, the court does not review the merits of Brazina's claim but only determines whether a cause of action exists under California law. McCabe, 811 F.2d at 1339. Here, this court is satisfied that there is some basis to compel the Commissioner to withdraw approval of the policy.
Defendants argue that even if there is a valid claim against DOI or the Commissioner, DOI is still fraudulently joined because there is a statutory time bar for judicial review and Brazina has not exhausted his administrative remedies. While courts generally focus on the plaintiff's pleadings to determine if there is removal jurisdiction, the Ninth Circuit has held that when fraudulent joinder is an issue, "we will go somewhat farther." Ritchey v. Upjohn Drug Co., 139 F.3d 1313, 1318 (9th Cir.), cert. denied, 525 U.S. 963 (1998). In Ritchey, the Circuit found that a statute of limitations bar constituted fraudulent joinder. Id. at 1320. The Ritchey court concluded that "under California law no cause of action was stated" because the statute of limitations is a "kind of procedural bar, and not one which relates to the merits of the case," and defendants may file a demurrer in state court based on the statute of limitations. Id. at 1319-20. This court finds that even under Ritchey, the defenses asserted by Revere and Provident are not grounds for fraudulent joinder.
Defendants contend that Brazina's claim under section 10291.5 is time barred since Brazina did not file a petition for judicial review before the effective date of the Commissioner's approval. They rely on subparagraph (h), which states: "Notwithstanding any other provision of law to the contrary, petition for any such [judicial] review may be filed at any time before the effective date of the action taken by the commissioner." Cal. Ins. Code § 10291.5(h). Once the action was effective, defendants argue, the language of the policy must be presumed to comply with section 10291.5.*fn8
The court is unconvinced. Ritchey does not counsel removal jurisdiction over this action. The Ritchey court faced a uniquely egregious situation, in which a plaintiff filed a second lawsuit adding non-diverse parties even though it was already clear from a prior Circuit decision that the causes of action were barred by the applicable statutes of limitations.*fn9 139 F.3d at 1320. The Circuit found that the plaintiff could not defeat diversity in such a manner, since "[i]t is pellucid that by the time the complaint in question was filed . . . the statute of limitations had long since run." Id.
No such pellucidity exists here. The statute of limitations in Ritchey is a mandatory bar, whereas section 10291.5 provides that a petition may be filed before the effective date. In fact, it seems likely that a California court would interpret the language to allow this action to proceed. A recent appellate decision determined that almost identical statutory language in another section of the Insurance Code simply provides an alternative means of review. Economic Empowerment Found. v. Ouackenbush, 65 Cal.App.4th 1397, 1402 (Cal. Ct. App. 1998). The plaintiff in Economic Empowerment challenged the Commissioner's approval of a rate increase. The Commissioner argued that judicial review was barred because the applicable provision in the Insurance Code stated such actions "may be filed at any time before the effective date" of the Commissioner's action.*fn10 Cal. Ins. Code § 1858.6. Noting that California courts are ordinarily unable to review an action that is not final, the court found that the "permissive" language of the provision created "an opportunity for review" of such actions. 65 Cal.App.4th at 1402. The provision did not, however, bar plaintiffs from petitioning for a writ of mandamus thereafter. Id. at 1401-02. As defendants have not persuaded this court that the statutory language clearly bars later challenges to a Commissioner's actions, the court will not find fraudulent joinder.
Exhaustion of administrative remedies is a prerequisite to California state court jurisdiction and may be asserted by defendants through a demurrer. Leff v. City of Monterey Park. 218 Cal.App.3d 674, 680-81 (Cal. Ct. App. 1990). Thus, under the rationale of Ritchey, this defense may be considered for purposes of fraudulent joinder. The rule requiring exhaustion of administrative remedies does not apply, however, when an administrative remedy is unavailable or inadequate. Tiernan v. Trustees of Cal. State Univ. & Colls., 33 Cal.3d 211, 217 (Cal. 1982). Defendants have not shown that there is any administrative appeal process available to challenge the Commissioner's approval of an insurance policy, including the public complaint process set out in section 12921.3. Thus, defendants fail to sustain their burden on this issue.
Brazina need only have one viable cause of action against the Commissioner to defeat removal. For the reasons discussed above, this court finds that claim five raises a possible cause of action under section 10291.5 of the California Insurance Code. Therefore, it is unnecessary to reach the issue of other potential causes of action in claim five or claim six.
III. Misjoinder
Defendants argue vociferously that Brazina's claims against the DOI are completely unrelated to his claims against defendants, and thus Brazina does not meet the requirements for permissive joinder under Rule 20. Defendants try to bootstrap this unconvincing argument into a fraudulent joinder claim. Essentially, they allege that DOI and defendants are not jointly, severally, or alternatively liable to Brazina, liability does not arise from the same transaction or occurrence, and there is no "common question of law or fact" between the claims, and thus this court should find fraudulent joinder.
Defendants seem to be relying on the theory that emerged from Tapscott v. MS Dealer Service Corp., in which the Eleventh Circuit ruled that claims could be considered fraudulently joined when they are misjoined. 77 F.3d 1353, 1360 (11th Cir. 1996), overruled on other grounds by Cohen v. Office Depot, Inc. 204 F.3d 1069, 1072 (11th Cir. 2000). However, Tapscott concerned two groups of plaintiffs that sued separate groups of defendants on almost entirely separate legal grounds. Id. The Tapscott court found joinder of these two groups of plaintiffs, which was accomplished through Rule 20, "so egregious as to constitute fraudulent joinder." Id. The Ninth Circuit has not found occasion to address Tapscott, and no other circuit has adopted its rationale.*fn11
In the action at bar, one plaintiff brought different causes of action against separate defendants without resort to Rule 20. Even if this court were to extend Tapscott to such an action, there is no evidence that the claims are so unrelated as to constitute "egregious" misjoinder. Since a policy approved by the Commissioner is presumed valid and in compliance with section 10291.5, Peterson, 48 F.3d at 410, the outcome of the insurance contract dispute between defendants and Brazina may very well depend on whether the Commissioner will withdraw approval of the policy in question. Brazina argues that "but for" the wrongful approval of the policy, he would not be injured by the defendants. On its face, there is enough of a connection between the claims to militate against any such application of Tapscott.
In summary, complete diversity requires that no defendant share citizenship with any plaintiff. 28 U.S.C. § 1332(a). Because defendants fail to establish that DOI was fraudulently joined, the presence of DOI destroys complete diversity and the action must be remanded.
For the foregoing reasons, the court hereby GRANTS plaintiff's Motion to Remand.
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December 10, 2007
ROBERT M. WESOLOWSKI, PLAINTIFF,v.DANIEL SULLIVAN, PAUL CHAPPIUS, JR., JEFERY A. HALE, MICHAEL MCGINNIS, DEFENDANTS.
Plaintiff, Robert Wesolowski, appearing pro se, commenced this action pursuant to 42 U.S.C. § 1983. Plaintiff, an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), alleges that his constitutional rights were violated in a number of respects in 2003 and 2004, while plaintiff was confined at Southport Correctional Facility. The gist of plaintiff's claims is that defendants, all of whom were at all relevant times DOCS employees at Southport, violated plaintiff's rights by confiscating fundraising materials from plaintiff that he had received from an organization calling itself Families Against Mandatory Minimums ("FAMM").
Defendants have moved for summary judgment. Plaintiff's only response to the motion has been to ask the Court, repeatedly, for extensions of time to respond to the merits of defendants' motion. Plaintiff was originally directed to respond to defendants' motion by May 18, 2006. (Dkt. #31.) Plaintiff was then granted an extension until July 18, 2006. (Dkt. #34.) On September 6, 2006, the Court gave plaintiff until October 23, 2006, to respond. (Dkt. #39.) On November 14, 2006, I gave plaintiff an extension until January 5, 2007 (Dkt. #40), and on January 19, 2007, I gave him until February 28, 2007 to respond. (Dkt. #41.)
Plaintiff continued to ask for more time to respond. On August 13, 2007, the Court gave him until September 28, 2007 to respond to defendants' motion. (Dkt. #45.) Finally, on October 11, 2007, I granted plaintiff's most recent request for an extension, giving him until October 31, 2007 to respond. (Dkt. #47.) In doing so, I cautioned plaintiff that "[n]o further extensions will be granted" and that "[i]f plaintiff's response papers are not filed on or before October 31, 2007, the Court will decide the motion based on the papers submitted." Id. Plaintiff has not filed any response to the motion, or any other papers since then.
I. Plaintiff's Failure to Respond to Defendants' Summary Judgment Motion
Rule 56(e) of the Federal Rules of Civil Procedure provides that
[w]hen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denial of the adverse party's pleading, but the adverse party's response by affidavits or as otherwise provided in this rule must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.
The Court of Appeals for the Second Circuit has held that when a party moves for summary judgment against a pro se litigant, either the movant of the district court must provide the pro se litigant with notice of the consequences of failing to respond to the motion. Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620 (2d Cir. 1999); see also Irby v. New York City Transit Auth., 262 F.3d 412, 413 (2d Cir. 2001).
In the instant case, defendants' notice of motion (Dkt. #23) and the Court's initial scheduling order (Dkt. #31) both gave plaintiff notice of the requirements of Rule 56 and the consequences of failing to respond to a motion of summary judgment. There is no question here that plaintiff has been adequately advised of the pendency of the motion, of the need for him to respond and the form in which he should do so, and of the consequences of not responding to the motion. Since plaintiff has not filed any responding papers, the Court will accept the truth of defendants' factual allegations, and determine whether defendants are entitled to summary judgment.
II. Failure to Exhaust Administrative Remedies
Defendants contend that the complaint should be dismissed for failure to exhaust his administrative remedies as required by the Prisoner Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a). The PLRA provides in part that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." Id.
"DOCS's grievance process consists of three stages. First, a grievance is filed with the Inmate Grievance Resolution Committee ('IGRC'). Next, an inmate may appeal an adverse decision to the prison superintendent. Finally, an inmate may appeal the superintendent's decision to the Central Office Review Committee ('CORC')." Brownell v. Krom, 446 F.3d 305, 309 (2d Cir. 2006).
In the case at bar, defendants admit that plaintiff filed a grievance with the IGRC regarding the confiscation of FAMM materials, but they contend that he never appealed the denial of that grievance to CORC. As stated, plaintiff has not denied, or even responded to, that allegation. I therefore accept the truth of that allegation, and conclude that the complaint must be dismissed for failure to comply with the PLRA's exhaustion requirement.
III. The Merits of Plaintiff's Claims
Even if plaintiff had exhausted his remedies, however, I would conclude that defendants are entitled to summary judgment. According to plaintiff, the confiscated materials described "how someone could conduct a political fundraising event" to benefit FAMM. Complaint ¶ 9. With respect to their confiscation of plaintiff's FAMM materials, defendants state that plaintiff did not follow DOCS regulations for seeking permission for FAMM as an inmate organization or to raise funds on behalf of FAMM. Defendants have also explained why, in general, DOCS policies prohibit unauthorized fundraising by inmates. See Dkt. ##24, 25, 28. Again, plaintiff has not controverted those allegations.
As the Court of Appeals for the Second Circuit has pointed out, the Supreme Court "has counseled judicial restraint in the federal courts' review of prison policy and administration, noting that 'courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform.'" Giano v. Senkowski, 54 F.3d 1050, 1053 (2d Cir. 1995) (quoting Turner v. Safley, 482 U.S. 78, 84 (1987)). Thus, in Giano, the court upheld a correctional facility's policy authorizing confiscation of nude or semi-nude photographs of inmates' spouses or girlfriends. Applying Turner's four-part test for determining the reasonableness of a prison regulation, the Giano court concluded that the prison's policy did not violate the inmate's rights under the First Amendment. Id. at 1052-56.*fn1
Having considered defendants' submissions in support of their motion for summary judgment, I find that the confiscation of the materials at issue here also did not violate plaintiff's First Amendment rights. While they are of a different character than the material at issue in Giano, the items seized from plaintiff present their own challenges to prison order and security. Considering the possibilities for abuse that would arise if inmates were freely allowed to engage in "fundraising" from fellow inmates, the restriction and regulation of such activities by prisoners is unquestionably a legitimate penological interest, and it is uncontroverted that plaintiff did not follow established procedures for obtaining authorization to engage in such activities. See Leitzsey v. Coombe, 998 F.Supp. 282, 287 (W.D.N.Y. 1998) (because DOCS rule prohibiting prisoners from engaging in organizational activities or possessing organizational materials that were not authorized by DOCS was reasonably related to legitimate penological interest of maintaining order within correctional facilities, inmate's free speech rights were not violated by punishment imposed upon him for possessing material pertaining to unauthorized group).
In any event, even if defendants' actions did violate plaintiff's rights, defendants would be entitled to summary judgment on the ground of qualified immunity, which shields public officials "from civil damages liability insofar as their conduct 'does not violate clearly established statutory or constitutional rights of which a reasonable person would have known,' Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982), or insofar as 'it [is] objectively reasonable for them to believe that their acts d[o] not violate those rights,' Velardi v. Walsh, 40 F.3d 569, 573 (2d Cir. 1994)." Simms v. Village of Albion, 115 F.3d 1098, 1106 (2d Cir. 1997); accord Brown v. City of Oneonta, 106 F.3d 1125,1130-31 (2d Cir. 1997).
Plaintiff has pointed to no authority, nor has the Court found any, which had clearly established at the time of the events giving rise to this lawsuit that plaintiff had a First Amendment right to possess the materials in question. See Duamutef v. Moran, 173 F.3d 844, 1999 WL 248128, at *1 (2d Cir. 1999) (noting that at the time of the events in question, "there was no Supreme Court or Second Circuit case (and there still is none) articulating a First Amendment right to possess materials that prison officials have seized in the interest of prison security"). Defendants are therefore entitled to summary judgment on this ground as well.
Defendants' motion for summary judgment (Dkt. #23) is granted, and the complaint is dismissed.
Rochester, New York
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Chris Brown Had A Stand-Off With The Cops, Got Himself Arrested. -And Other LINKS!!!
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Tags: celebrity, Chris Brown, cops, LINKS!, news, stand off
Wednesday, August 31st, 2016 at 9:09am
Filed under Bits & Pieces, Uncategorized | No Comments


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Buccaneer Level 5 Tips and Strategies
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When it's asked why people travel and what are the reasons that make people go outside of their country and region, the answer can be complicated. There are actually, two answers to this question. One is obvious and perhaps this is the reason we accept for ourselves and we quote to others as well.
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