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Garden Programs for Kids
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QBG's Gardening Programs for Kids bring together youngsters ages 2 to 14 from around New York City to enjoy seasonal, hands-on learning and gardening experiences year-round. Our young gardeners explore concepts of ecological balance, sustainability, and conservation as they learn how to prepare soil, select seeds and plants, and care for and later harvest their own vegetables, flowers, and herbs that they turn into nutritious and delicious snacks in the classroom. We explore these concepts at age-appropriate levels within each of the three programs offered.
Garden Buds (Ages 2 to 3): We welcome toddlers to join our Garden Buds Program! Tailored to our youngest gardeners, these classes let children explore the wonder of nature through hands-on work and play in the garden, taste garden produce, and create botanical crafts. Must be accompanied by one adult only. Please no siblings. Garden Buds is offered as a four-class series in the spring and fall.
Children's Garden (Ages 4 to 10): The Children's Garden sponsored by HSBC offers a fun and exciting experience where kids spend time planting, playing, observing and learning in a nurturing environment. From seed to table, our young gardeners have the opportunity to grow, harvest, and cook vegetables as well as explore the environments around them.
Children's Garden enjoys lead support from HSBC.
Junior Naturalists (Ages 11 to 14): Join us for this new and exciting summer opportunity specifically designed for those who want to take a deeper look into natural workings of the Garden. Participants will tend to their own garden plots, complete scientific experiments and investigations, and take a more in-depth look at the surrounding ecosystems. Summer program only.
Additional support has been provided by the New York City Department of Cultural Affairs; the Zoos, Botanical Gardens, and Aquariums Grant Program of the New York State Office of Parks, Recreation, and Historic Preservation.
Hours & Directions | Press Room | Copyright 2006 Queens Botanical Garden | 43-50 Main Street, Flushing, NY 11355 | 718.886.3800 | firstname.lastname@example.com
Support to QBG given by the New York City Department of Cultural Affairs


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I bought these headphones about 4 years ago. It's amazing to me that they still are one of the better bluetooth headphones that can be purchased today after 4 years. Happy I bought them but if I weren't a do-it-yourselfer kind of guy they would have been useless 2 years ago. The battery died on them and they wouldn't hold a charge anymore. I figured out how to replace the battery and ordered it myself from China (a battery that holds even more charge haha) and now they last even longer than they did originally so I'm happy. Otherwise you can plan on sending them back to Sony to replace the battery after a couple years of use. Not sure how much that would cost but I'd guess it wouldn't be worth it. Other than this issue I really love the heaphones. No problems connecting to my computer (Windows 7) or my phone (Droid X). On a comfort rating I'd give them a 7 out of 10. After a while they do irritate my ears a bit but not as bad as other headphones I've worn. Overall I do like the headphones, although if I thought there was a better set out there I'd probably replace these...

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Question goes here
1,300 Followers
Why smart ones don't want to be enterpreneur?
There are many smart peoples who are employed. They have amazing ideas and the company they work for made lot of revenue on their talent. However, I just don't understand why these smart people who are so talented and revenue generating continue to work for a company than becoming a entrepreneur. I understand that being entrepreneur is about passion, idea, and execution but these guys who are (want a)preneur never take the plunge.
I am just curious to understand why the safety and stable income satisfies the smart ones?
Did struggle to take a call to be a entrepreneur because of lack of instability?
25 Replies
John Seiffer Advisor
Business Advisor to growing companies
Being an entrepreneur is very risky - most startups fail. Most people who have good jobs will be better off financially than most entrepreneurs five years out. Obviously they won't be better off than the few outliers that you read about, but those are the vast minority.
Also many people don't have the skill set for entrepreneurship, and they'd prefer to work in a situation where they can do what they're best at most of the time.
And entrepreneurs are thinking about work 24/7. Some crazy people (myself among them) like this. But others like being able to leave work at work and have other things to do with their time.
The good news is if everyone thought like us entrepreneurs, we'd have no one to hire.
Michael Epstein Entrepreneur
Founder at Zap Technology
John, good point. But I am also wondering if it is taking the first step. I have heard many stories that being fired was the best thing happened or they were hesitant to take the first step and those who did realize that it was best thing ever happened, regardless of failure or success rate. Startup fail but those who failed who many actually return to job vs. moving on to other idea?
Sean Hurley Entrepreneur • Advisor
Strategic Marketing Leader with strong financial results for growing organizations
It's all about risk tolerance; financial and otherwise. The definition of entrepreneur is ones willingness to risk the loss of capital to start a business.
John Seiffer Advisor
Business Advisor to growing companies
Those stories about being fired as the best thing, all have selection bias. You never hear about being fired, starting a company out of desperation, and ending up in a worse place - it does happen, just doesn't make a good story.
It would take a PhD researcher to really answer your question.
I do think that in the USA, Obamacare lowered the risk of starting a company by making sure you could have health insurance even with a pre-existing medical problem. Universal coverage would do even more to make that leap a bit less risky.
BETTY DAVIS Entrepreneur
Global Services at United Airlines
That comes down to a persons comfort level with regards to risk: risk averse or a risk taker...
Some people just thrive better in a more stable environment and are not comfortable being on their own and having to answer to themselves. Others hate being a cog in the machine. There is no right or wrong only what makes a person happy...
And yes there are those that are scared of the first step so much that they will only strike out on their own out of necessity, such as your example, when fired...
Fear is a huge deciding factor. Most people make decisions based on fear as opposed to the best possible outcome of a given situation...
Adrian Tan Entrepreneur
Building Business, People & Products!
Hi Michael, That is an excellent question. In my humble opinion, the main issue is perceived stability and golden handcuffs. That being said, Smarter ones are working on other stuff on the side as well, they just dont let the company know about it. Cheers, Adrian
Anton Yakovlev Entrepreneur
Founder of four successful businesses on two continents who can help you do the same
'Cause they are smart. And they make much more money than vast majority of entrepreneurs.
Bruce Carlisle Advisor
Leadership, Strategy, BizDev, Marketing, Fundraising
As a smart guy who has been entrepreneurial and has started three companies, I will tell you there is a great deal to be said for the security of a high paying job. Startups typically require long periods of time without any source of income, the assumption of debt, the loss of health insurance, digging into retirement dollars, the chance, indeed the statistical likelihood of failure. If you have a department and admins and resources, it can be tough switching to a world where the only resource is you. Doing a startup, whether you are smart or dumb, requires an ability and desire to live on the edge for two to three years. If you don't like that, can't afford it or think the price to your family would be too high, you don't do it. All things I can completely respect. IMO. Bruce Carlisle. Bruce
Michael Barnathan Entrepreneur • Advisor
Co-Founder of The Mountaintop Program, Google Alum
Starting a company is very difficult and uncertain relative to working. Entrepreneurship requires a unique set of skills and personality traits that not everyone has or desires - it's not for everyone.
Michael Jay Moon Advisor
Co-Founder at StartupReady.Net
There are several dimensions to your question.
Let's see if we can pull out atell them from the "giant hairball" of holding a job, ambition, and career pivots.
1. Self-identity: Where you see yourself in 3 years? How an individual answers that reveals a lot about who they are and they see themselves. In my individual and group work with executives exploring their career options, I have found extraordinary levels of myopia and limited-horizon thinking.
2. Imagination: If you were to quickly sketch an ideal working environment and career accomplishments, what would be the particulars of that desired future state? Again, I am surprised about how fuzzy and unconsidered most replies are to that question. When I dig a little deeper, inquiring as to how they feel about the future, most report being perplexed, afraid, or deeply unsettled about their future well-being. So of course when they imagine a future on that baseline emotion, they must edit heavily the products of their imagination: panic, bread, and loss of all the find dear.
3. Unfinished business: At what point in your career if you decide to play it safe, taking only easy shots on goal? This one is a lot more complex. It will reflect how good they were and the accolades that followed ead career victory. It will reflect the battles, setbacks, resentment, and regrets that they still carry with them on a day-to-day basis. Mind you, most of us carry a lot of history; we also get pretty good about ignoring the herd of elephant in our psychic rooms. Most of us have not yet conducted a thorough recapitulation of these high and low moments, identifying our God-given gifts, genius talents, core values, and optimal social contexts--mostly hidden by our resentments and regrets .
4. Different ground rules: What are the ground rules and core protocols for winning in a chaotic, fast-paced, and consequential start up and buy the what are the ground rules and core protocols for winning in a chaotic, fast-paced, consequential environment?Most corporate professionals learned that winning entails playing by the rules, the first one is that it's game and it has rules. Start ups do not have rules. Their cofounders make them up as they go along and change them on what seems to be an arbitrary basis - whatever works. For carpet professionals, this is a no-win situation.
5. Best options in the Startup Economy: Given your talents, ambitions, and social capital, what a my best options for pivoting my career into an equity-gaining situation of a startup? Well, it gets pretty interesting at this point. Most corporate professionals are not a good fit until the start up gets the size of about 50 people or more. And that could be much higher, given the culture of a particular startup. Only most good equity positions are gone by the time the startup hires its 20th person. Again in our individual and group work, we have found that corporate professionals must not only retool themselves (skills, attitudes and referenceable results), they must repackage them to meet very concrete but ubarticulated needs of start of cofounders seeking passion, cultural fit, invincible resourcefulness, and the humility of an apprentice.
I suspect there are at least four and maybe as many as seven more factors such as I ennumerated above.
There are some 15 million corporate professionals who will be forced by technology-driven circumstance to execute a career pivot, confronting the fact that their industry has been disrupted, career track truncated, few replacement-job openings for their particular talents, and global competition for the remaining jobs.
Executing a career pivot starts with the determination that you have no better option.
This embraces a core insight about human motivation: human beings will not take constructive action until the current state becomes too dangerous for inaction.
So you need not worry about your friend. It will only get worse from this point forward. He is a lobster in a slowly warming pot of water. It is not a matter of if, only a matter of when and how parboiled is willing to become!
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February 21, 2012
K. JAMEL WALKER, PLAINTIFF,v.CALIFORNIA DEPARTMENT OF CORRECTIONS, ET AL., DEFENDANTS.
Plaintiff, a state prisoner incarcerated at Mule Creek State Prison, under the authority of the California Department of Corrections and Rehabilitation ("CDCR"), proceeds without counsel in this civil rights action. Plaintiff filed this action in the Sacramento County Superior Court, on September 20, 2007. Defendants removed the case to this court on February 27, 2009. (Dkt. No. 2.) Although several procedural problems beset the removal, the court denied plaintiff's motion to remand because it was untimely filed. (See Dkt. Nos. 12, 16.) The court thereafter dismissed several defendants, based on the finding that plaintiff's complaint fails to state any potentially cognizable claims against them. (See Dkt. Nos. 17, 19.) The action now proceeds against defendants Rush, Anaya, Price, Chavarria, Ryan, Bourland, and Nunez. Pending is defendants' motion to dismiss. (Dkt. No. 22.) Plaintiff filed an opposition (Dkt. No. 30); defendants filed a reply (Dkt. No. 33). For the following reasons, this court recommends that defendants' motion be granted in part and denied in part, and that plaintiff be granted leave to file an amended complaint.
I. Background
Plaintiff's complaint (Dkt. No. 2 at 5-33)*fn1
("complaint") is densely worded, both factually and legally, and
somewhat difficult to construe. Plaintiff's claims are premised on his
allegations that defendants, acting individually and in concert,
denied plaintiff his right to have confidential telephone calls with
his attorney. Plaintiff further contends that defendants acted in
retaliation for plaintiff's pursuit of a separate civil rights action
(Walker v. Gomez et al., Case No. 03:96-cv-0609 PCL);*fn2
and then in retaliation for plaintiff filing an
administrative grievance challenging defendants' actions. As this
court noted on initial screening, the complaint alleges a broad "first
cause of action" that "combines plaintiff's claims that his rights to
privacy, due process, and to petition the government for redress of
grievances, were violated under the First, Fourth, and Fourteenth
Amendments to the United States Constitution, and Article I of the
California Constitution," and alleges five additional "causes of
action" that "assert an amalgam of alleged violations of state
statutory and constitutional law." (Dkt. No. 17 at 5-6.)*fn3
seeks statutory, compensatory and punitive damages, as well as
declaratory and injunctive relief.
The court addresses the merits of defendants' motion to dismiss in the following sequence: the court first identifies the allegations and claims that plaintiff administratively exhausted; then, the court determines whether state law claims are precluded under the requirements of the California Tort Claims Act; the court then reviews plaintiff's claims for injunctive and declaratory relief; thereafter, the court considers whether the remaining matters state potentially cognizable claims for relief.
II. Exhaustion of Administrative Remedies
A. Legal Standards
The Prison Litigation Reform Act ("PLRA") provides that, "[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], 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." 42 U.S.C. § 1997e(a). Pursuant to this rule, prisoners must exhaust their administrative remedies regardless of the relief they seek, i.e., whether injunctive relief or money damages, even though the latter is unavailable pursuant to the administrative grievance process. Booth v. Churner, 532 U.S. 731, 741 (2001). Exhaustion also requires that the prisoner complete the administrative review process in accordance with all applicable procedural rules. Woodford v. Ngo, 548 U.S. 81 (2006).
The PLRA requires that administrative remedies be exhausted prior to filing suit. McKinney v. Carey, 311 F.3d 1198 (9th Cir. 2002). However, the exhaustion requirement is not jurisdictional, but an affirmative defense that may be raised by a defendant in a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b). See Jones v. Bock, 549 U.S. 199, 216 (2007) ("inmates are not required to specially plead or demonstrate exhaustion in their complaints"); Wyatt v. Terhune, 315 F.3d 1108, 1117-19 (9th Cir. 2003) (failure to exhaust is an affirmative defense). Defendants bear the burden of raising and proving the absence of exhaustion, and their failure to do so waives the defense. Id. at 1119.
"In deciding a motion to dismiss for a failure to exhaust non-judicial remedies, the court may look beyond the pleadings and decide disputed issues of fact." Wyatt, 315 F.3d at 1119. "I[f] the district court looks beyond the pleadings to a factual record in deciding the motion to dismiss for failure to exhaust -- a procedure closely analogous to summary judgment --then the court must assure that [the prisoner] has fair notice of his opportunity to develop a record." Id. at 1120 n.14. When the district court concludes that the prisoner has not exhausted administrative remedies on a claim, "the proper remedy is dismissal of the claim without prejudice." Id. at 1120; see also Lira v. Herrera, 427 F.3d 1164, 1170 (9th Cir. 2005) ("mixed" complaints may proceed on exhausted claims). Thus, "if a complaint contains both good and bad claims, the court proceeds with the good and leaves the bad." Jones, 549 U.S. at 221.
"The level of detail in an administrative grievance necessary to properly exhaust a claim is determined by the prison's applicable grievance procedures." Jones, supra, 549 U.S. at 218. In California, prisoners are required to lodge their administrative complaint on a CDC Form 602, which requires only that the prisoner "describe the problem and action requested." Cal. Code Regs. tit. 15, § 3084.2(a). In Griffin v. Arpaio, 557 F.3d 1117 (9th Cir. 2009), the Ninth Circuit Court of Appeals adopted the standard enunciated by the Seventh Circuit, which provides that "when a prison's grievance procedures are silent or incomplete as to factual specificity, 'a grievance suffices if it alerts the prison to the nature of the wrong for which redress is sought.'" Griffin, 557 F.3d at 1120 (reviewing Arizona procedures), quoting Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002). Thus, in California, "[a] grievance need not include legal terminology or legal theories unless they are in some way needed to provide notice of the harm being grieved.
A grievance also need not contain every fact necessary to prove each element of an eventual legal claim. The primary purpose of a grievance is to alert the prison to a problem and facilitate its resolution, not to lay groundwork for litigation." Griffin, 557 F.3d at 1120; accord, Morton v. Hall, 599 F.3d 942, 946 (9th Cir. 2010).
"[E]xhaustion is not per se inadequate simply because an individual later sued was not named in the grievances." Jones, 549 U.S. at 219. It is nonetheless appropriate to require that a prisoner demonstrate, through the administrative grievance process and consistent with the PLRA, that he has standing to pursue his claims against a particular defendant. "[A]t an irreducible minimum, Art[icle] III [of the United States Constitution] requires the party who invokes the court's authority to 'show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant.'" Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 472 (1982) (quoting Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99 (1979).
B. Discussion
During the relevant period of time, plaintiff exhausted seven administrative grievances. These grievances have been identified, and duplicated for the court, by Calipatria State Prison Appeals Coordinator J. Jimenez. See Jimenez Decl. (Dkt. No. 22-2.) The court's review of all seven grievances,*fn4 each denied at the Director's Level Review, demonstrates that only two grievances contain allegations relevant to this action, Log No. CAL-05-02249, and Log No. CAL-05-02594.
In Log No. CAL-05-02249, initially submitted on November 9, 2005, plaintiff alleged that defendants*fn5 Ryan, Nunez, Chavarria, Rush, and Anaya, "entered into a conspiracy and/or were grossly negligent . . . in prevent[ing] [plaintiff ] from the enjoyment of his constitutional and statutory right to privacy by non-electronically eavesdropping on [plaintiff's] telephone conversations with his attorney, so as to gain an advantage in the ongoing civil rights litigation between [plaintiff] and the defendants . . . in the matter, Walker v. Gomez, et al." (Dkt. No. 30 at 37, 43.) Plaintiff alleged that "staff in the Litigations Office," specifically, Litigation Coordinator Nunez, "acting as [an] agent on behalf of the [other] defendants referred to herein," "contacted K. Rush and D. Anaya and informed them I would be receiving telephone calls from my attorney, and it was permissible to eavesdrop on my attorney calls because they were not confidential." (Id. at 43.) As a result, plaintiff alleged, he was deceived into believing that he "had no choice but to be and to remain in a position and proximity which would permit them to eavesdrop on [plaintiff's] telephone calls with his attorney." (Id.) Plaintiff alleged that the named staff members "breached their legal and ethical duty" to inform plaintiff that he could speak confidentially with his attorney by telephone. (Id.) Plaintiff asserted that, thereafter, when he "attempted to take steps to safeguard his rights," he was retaliated against in the following ways: (1) that Anaya told plaintiff that he had only two options, to continue having his calls monitored, or to be visited by his attorney; and (2) that plaintiff's telephone calls were reduced from 30 minutes to 15 minutes. (Id. at 44.) Plaintiff concluded (id.):
Although the actions alleged have been ongoing as far back as 2004, the most recent manifestations . . . consist[] of K. Rush and/or D. Anaya, non-electronically eavesdropping on my telephone calls with my attorney during the following five (5) dates: 9/13/05, 9/21/05, 10/26/05, 10/27/05, 10/28/05.
Pursuant to these allegations, plaintiff asserted that the named staff members had violated plaintiff's "right to privacy under Art. 1 § 1 of the California Constitution, and Chapter 1.5 (Invasion of Privacy)[,] § 636 of the California Penal Code, as well as my right to [be] free from retaliation for exercising my State and Federal right of access to the courts." (Dkt. No. 30 at 37.)
This grievance was denied at the First Level Review, on December 14, 2005, on the ground that the "subject" telephone call, later identified only as plaintiff's 10/27/05 call, was properly handled because it had not been pre-approved as a "confidential call," as required by former Section 3282(g)(1) and (2), Title 15, California Code of Regulations.*fn6 (Dkt. No. 30 at 40.) The First Level Decision noted that, "[w]hen the [plaintiff] was done speaking with the judge, his attorney got on the line and began talking with the appellant. The telephone call was not pre-approved . . ." (Id. at 40.) The grievance was denied at the Second Level Review and Director's Level Review for the same reasons (id. at 36, 39) concerning the one telephone call, notwithstanding plaintiff's efforts to have all "five" of his identified calls addressed, and despite his assertion that his calls were conducted not on "inmate phones," but on "the counselor's phones," where confidential calls are normally made (id. at 41). The claim was exhausted pursuant to the Director's Level Decision issued April 28, 2006.
On December 22, 2005, plaintiff submitted Log No. CAL- 05-02594, a "staff complaint," wherein he asserted that defendant Price, who interviewed plaintiff on December 7, 2005, pursuant to plaintiff's above-noted grievance (Log No. CAL-05-02249), threatened and intimidated plaintiff because he had filed the grievance. Plaintiff described the incident as follows (Dkt. No. 30 at 51, 57):
On 12/7/05, Capt. J. Price interviewed me concerning a complaint I filed against staff. . . . While trying to explain a remedy to prevent such acts from happening in the future, Capt. Price cut me off, and proceeded to try and justify the actions of the involved staff. When I tried to point out the futility of his attempts, he became frustrated, and told me[,] "I don't have time for this. I told you guys about wasting my time with these 602's. I have a yard to try to get up and running! You may have one (sic) the last battle, but you won't win the next one. The next time, you'll be the one in the hole!" When I tried to ask him what did he mean, he just stated, "You know what I mean. [D]on't play games on my yard!' I told him, I don't play games. He said, it didn't matter what I said. He said, "Both green and blue told me you were a "troublemaker." I tried to tell him that I haven't caused trouble in the 2 1/2 years I've been on D-Facility. He then stated, "Just keep this in the back of your mind, the next time I hear you're playing games on my yard, you'll be in the hole!" When I tried to defend myself from these baseless allegations, Price began yelling loudly, "You want to go the hole now?! You want to go to the fucking hole right now?!" I stated, no Sir. He stated, "Then take heed to my words, and get out of my office. I'm busy." [¶] I left his office, intimidated, wondering why he screamed at me that way, and threatened to put me in the hole. I have the specific right not to be treated this way during an interview of my appeal.
Pursuant to these allegations, plaintiff requested "an unbiased, independent and thorough investigation. I want to be assured in writing that no further reprisals will be taken against me for exercising my State and Federal Constitutional and Statutory rights to use the appeal system. . . ." (Dkt. No. 30 at 51.)
This grievance was "partially granted" at the First Level Review, because an investigation was conducted in response to plaintiff's allegations. (Id. at 52, 55-56.) Shortly thereafter, on April 13, 2006, plaintiff was transferred to Mule Creek State Prison. Nevertheless, plaintiff sought and obtained a Second Level Review, which was "partially granted" due to the investigation having been conducted. (Id. at 52-54.) The Director's Level Review decision was issued September 27, 2006, denying plaintiff's grievance. (Id. at 50.)
Pursuant to this review, the court finds that the following allegations, set forth in plaintiff's complaint (and summarized here), were administratively exhausted:
a. That, on September 13, 2005, October 26, 2005, October 27, 2005, and October 28, 2005,*fn7 defendants Ryan, Nunez, Chavarria, Rush and Anaya allegedly denied plaintiff confidential telephone calls with his attorney; this conduct was allegedly motivated by retaliation against plaintiff for pursuing another federal civil rights action.*fn8 (Complaint ("Cmplt.") at ¶¶ 13-18, 40-41.)
b. That, on December 7, 2005, defendant Price, allegedly acting in retaliation for plaintiff filing the above-noted administrative grievance, intimated and threatened plaintiff. (Cmplt. ¶ 29.)
However, the court finds that the following allegations, while set forth in plaintiff's complaint, were not administratively exhausted, and therefore must be dismissed from this action:
a. That, on November 28, 2005, defendants Price and Chavarria allegedly retaliated against plaintiff for filing his November 9, 2005 grievance (Log No. CAL-05-02249), by conspiring to place an inmate, who had previously been administratively segregated for conspiring to assault plaintiff, back into plaintiff's facility; that defendants Price and Chavarria "knew or should have known that placing that inmate back on the facility would result in Plaintiff being assaulted and placed in segregation."*fn9 (Cmplt. ¶¶ 22-26.)
b. That, on March 21, 2006, and March 30, 2006, defendants Rush and Chavarria allegedly retaliated against plaintiff for filing his November 9, 2005 grievance (Log No. CAL-05-02249), by ordering another correctional officer (Partida) to handcuff plaintiff during his telephone calls with his attorney.*fn10 (Cmplt. ¶¶ 31-33.)
III. California Tort Claims Act
Defendants contend that plaintiff's state law claims should be dismissed due to plaintiff's alleged failure to comply with the California Tort Claims Act.
Under the California Tort Claims Act ("CTCA"), set forth in California Government Code sections 810 et seq., a plaintiff may not bring a suit for monetary damages against a public employee or entity unless the plaintiff first presented the claim to the California Victim Compensation and Government Claims Board ("VCGCB" or "Board"), and the Board acted on the claim, or the time for doing so expired. "The Tort Claims Act requires that any civil complaint for money or damages first be presented to and rejected by the pertinent public entity." Munoz v. California, 33 Cal. App. 4th 1767, 1776 (1995). The purpose of this requirement is "to provide the public entity sufficient information to enable it to adequately investigate claims and to settle them, if appropriate, without the expense of litigation." City of San Jose v. Superior Court, 12 Cal.3d 447, 455 (1974) (citations omitted). Compliance with this "claim presentation requirement" constitutes an element of a cause of action for damages against a public entity or official. State v. Superior Court (Bodde), 32 Cal. 4th 1234, 1244 (2004). Thus, in the state courts, "failure to allege facts demonstrating or excusing compliance with the claim presentation requirement subjects a claim against a public entity to a demurrer for failure to state a cause of action." Id. at 1239 (fn. omitted).
Consistently, federal courts require compliance with the CTCA for pendant state law claims that seek damages against state public employees or entities. Willis v. Reddin, 418 F.2d 702, 704 (9th Cir. 1969); Mangold v. California Public Utilities Commission, 67 F.3d 1470, 1477 (9th Cir. 1995). State tort claims included in a federal action, filed pursuant to 42 U.S.C. § 1983, may proceed only if the claims were first presented to the state in compliance with the claim presentation requirement. United States v. California, 655 F.2d 914, 918 (9th Cir. 1980); Karim-Panahi v. Los Angeles Police Department, 839 F.2d 621, 627 (9th Cir. 1988); Butler v. Los Angeles County, 617 F. Supp. 2d 994, 1001 (C.D. Cal. 2008).
To be timely, a claim must be presented to the VCGCB "not later than six months after the accrual of the cause of action." Cal. Govt. Code § 911.2. Should a claimant miss this deadline, the claimant may file a written application for leave to file a late claim, within a year after the accrual of the cause of action. Id., § 911.4. If the Board denies the application, the notice of denial must include a warning to the claimant that no court action may be brought on the claim unless the claimant first files a petition with the appropriate court requesting relief from the claim presentation requirement, and obtains a court order granting such relief. Id., § 911.8. Failure to obtain such relief bars any suit on the claim.
An individual who files a claim pursuant to the CTCA is charged with knowledge of the applicable statute of limitations. See Hunter v. Los Angeles County, 262 Cal. App. 2d 820, 822 (1968) ("once a claimant has filed his claim, he demonstrates familiarity with the statutory procedures governing his grievance, and can reasonably be charged with knowledge of the time limitations that are part of that procedure").
Plaintiff filed only one relevant claim with the VCGCB,*fn11
which was signed by
plaintiff on June 14, 2006, and received by the Board on July 3, 2006.
See Declaration of J. Reinmiller, Custodian of Records, VCGCB's
Government Claims Program. (Dkt. No. 22-4.) The claim (Claim No.
G-561548) was made, in pertinent part, against defendants Rush, Anaya,
Nunez, Chavarria, Ryan, Bourland and Price, based on "incidents" that
allegedly occurred on "9/13/05, 9/21/05, 10/26/05, 10/27/05, and
10/28/05." (Dkt. No. 22-4 at 9.) Plaintiff alleged therein that the
named officials "deliberately violated Penal Code § 636 when they
eavesdropped on confidential telephone calls between claimant and his
attorney. They also violated their own regulations by forcing claimant
to sit in a room while they eavesdropped on claimant's confidential
telephone calls." (Id. at 10-11.) Plaintiff further alleged that the
named officials "failed or refused to promulgate or publish a
procedure that outlined my ability to send and receive confidential
telephone calls from claimant's attorney, as required by their own
regulations. Instead, they verbally informed me that they must be
present in the room while claimant spoke to his attorney. Because the
named persons on whom this claim[] is filed knew or should have known
they were violating claimant's statutory rights under Penal Code §
636, once I became aware of their violation, I filed an appeal
challenging their violations; however, the appeal was ignored, and
they further attempted to cover-up their wrongdoing." (Id. at
Plaintiff attached to his tort claim a copy of his pertinent administrative grievance (Log No. CAL-05-2249), which had been exhausted on April 28, 2006.
On the face of the claim form, plaintiff answered "Yes" to the question, "Was the incident more than six months ago?" (Id.) In an attached "Separate Statement of Presentation of Late Claim," plaintiff sought leave to file his claim outside the six-month deadline. That "Statement" provided in pertinent part (Dkt. No. 22-4 at 12):
Claimant contends that his [late] claim should be accepted for the following reasons:*fn12
1. Claimant could not file this claim until he exhausted his administrative remedies within the CDCR, which was exhausted on 4/28/06.
2. Claimant did not become aware that his rights were being violated until shortly after the last incident of violation of his statutory privacy rights under Penal Code § 636 on 10/28/05.
Assuming, liberally, that plaintiff's cause of action accrued on October 28, 2005 (the most recent incident of alleged misconduct), plaintiff had six months thereafter, or until April 28, 2006, to timely submit his claim to the VCGCB. However, plaintiff submitted his claim on July 3, 2006, acknowledging that it was untimely, and requesting that he be granted leave to file a late claim.
By letter dated November 20, 2006, the Board notified plaintiff that it had referred plaintiff's application to file a late claim to the "affected State agencies for review and recommendation." (Dkt. No. 22-4 at 8.) On December 27, 2006, the Board informed plaintiff that staff had recommended the denial of plaintiff's application because it did not appear to meet any of the requirements for accepting a late claim, as set forth in California Government Code section 911.6, and, hence, that the Board intended to deny plaintiff's claim at its February 22, 2007 meeting. (Id. at 6.) As required, the Board informed plaintiff that, "[y]our next recourse, should you wish to pursue the matter further, will be to file a petition in court for relief from the requirements of Government Code Section 945.4." (Id.)
Thereafter, in a letter dated March 2, 2007, the Board informed plaintiff that his application to present a late claim was denied on February 2, 2007. (Id. at 5.) The letter again informed plaintiff that, "[i]f you wish to file a court action on this matter, you must first petition the appropriate court for an order relieving you from the provisions of Government Code 945.4. (Claim presentation requirement). See Government Code Section 946.6." (Id.) Plaintiff was informed that he had six months from the date of the denial, or until August 2, 2007, to file such petition. (Id.)
However, plaintiff did not file, in any court, a petition for relief from the claim presentation requirement.
Plaintiff now makes several arguments in support of his contention that his failure to comply with the requirements of the CTCA should not preclude him from pursuing his state law damages claims in the present action.
First, plaintiff avers that he reasonably believed that he was required to exhaust his administrative remedies before filing his state tort claim. Plaintiff directs the court's attention to an excerpt from the California State Prisoners Handbook (Fourth Edition), that states in pertinent part:
[I]n 2004, the Government Claims Board requiring prisoners to exhaust the 602 process before filing a Government Claims Form. . . . Consequently the Board rescinded this policy and no longer requires prisoners to complete the 602 process before filing a Board of Control Claim. (Dkt. No. 30 at 10; see also Ex. A.) The selected passage does not reasonably support plaintiff's construction (unless plaintiff stopped reading after the first sentence). Moreover, because plaintiff failed to file a judicial petition for relief, he forfeited any alleged excuse premised on the reasons for permitting such relief, including "mistake, inadvertence, surprise or excusable neglect," Cal. Govt. Code § 911.6 (b)(1). See e.g. Collins v. Los Angeles County, 241 Cal. App. 2d 451, 460 (1966) ("Having failed to rely on these sections to obtain relief by petition to file a late claim, appellants are not now in a position to cite these sections in support of their contentions herein.").
Plaintiff next argues that the limitations period for filing his state
tort claim was tolled pending the exhaustion of his administrative
remedies. While the statute of limitations for bringing a civil action
is tolled while a prisoner exhausts his administrative remedies, Brown
v. Valoff, 422 F.3d 926, 943 (9th Cir. 2005), plaintiff has cited no
authority, and the court has found none, that supports plaintiff's
argument that the deadline for filing a state tort claim is similarly
tolled during the period of administrative exhaustion.*fn13
Plaintiff generally relies on case law that authorizes
equitable tolling when a plaintiff, faced with alternate remedies,
makes a good faith decision to pursue one remedy, but is then
belatedly required to pursue an alternate remedy. See Elkins v. Derby,
12 Cal.3d 410, 411 (1974) (tolling statute of limitations in personal
injury action for period during which plaintiff pursued his workers'
compensation remedy); Guerrero v. Gates, 442 F.3d 697, 706 (9th Cir.
2006), and cases cited therein; However, this exception is very
narrow. See e.g. Freeman v. State Farm Mut. Auto. Ins. Co., 14 Cal.3d
473, 489 (1975) (declining to apply the "several legal remedies"
principle articulated in Elkins, because it is limited to scenarios in
which "the two kinds of proceedings required the plaintiff to take
inconsistent positions," and, thus, "requiring him to pursue the two
concurrently in different tribunals would result in an awkward
duplication of procedures") (citing Elkins, 12 Cal. 3d at 412)
(internal quotation marks omitted). It cannot be said, in the instant
case, that plaintiff's exhaustion of administrative remedies required
that he take a position inconsistent with the claim he presented to
the VCGCB. Plaintiff's attachment of his administrative appeal to his
state tort claim underscores this point -- while compliance with the
claim presentation requirement would authorize a suit for damages, the
same alleged facts and legal claims
supported both plaintiff's tort claim and his administrative
Plaintiff's third argument is that the Board's allegedly belated notification to plaintiff that his application to file a late claim had been rejected constitutes a waiver of defendants' untimeliness defense. Plaintiff cites no relevant authority. As a practical matter, the Board accorded plaintiff ample notice that his application to file a late claim would be denied. (Dkt. No. 22-4 at 5, 6.) Moreover, the Board twice instructed plaintiff that the appropriate course for challenging the denial would be a court-filed petition for relief. (Id.) Because plaintiff did seek such relief, his state tort damages claims are barred in this court.
Finally, plaintiff argues that it is within this court's discretion to consider plaintiff's state tort claims, nothwithstanding plaintiff's failure to meet the pertinent state filing requirements. While there appears to be a split of authority among California's district courts whether a federal court (rather than a state superior court only) has jurisdiction to make a ruling on a timely-filed petition for leave to file a late claim, see e.g. Garber v. City of Clovis, 698 F. Supp. 2d 1204, 1210 (E.D. Cal. 2010), and cases cited therein, those federal courts that have assumed jurisdiction of such petitions have done so pursuant to a timely-filed petition in federal court. See e.g. Rahimi v. National R.R. Passenger Corp. (Amtrak), 2009 WL 1883756, *4 (N.D. Cal. 2009); Perez v. Escondido, 165 F. Supp.2d 1111, 1115 (S.D. Cal. 2001). In contrast, before plaintiff initiated this action in state court, he should first have filed a petition for relief in that court. This court is without authority to construe plaintiff's belated argument, set forth in his opposition to defendants' motion to dismiss, as a timely petition under Section 946.6. Therefore, this court is without jurisdiction to adjudicate plaintiff's request for relief from California's claim presentation requirement.*fn14
As a result of plaintiff's failure to comply with the requirements of the California Tort Claims Act, the court finds that plaintiff is precluded from pursuing his state law damages claims.
IV. Claims for Injunctive and Declaratory Relief
Plaintiff's requests for injunctive relief, premised on both state and federal law, were rendered moot upon plaintiff's transfer to Mule Creek State Prison.*fn15 Therefore, plaintiff's requests for injunctive relief should be dismissed.
Because plaintiff may seek neither injunctive relief nor damages pursuant to his state law claims, this court recommends dismissal of each of plaintiff's state law claims, set forth in his "causes of action" two through five. (See Cmplt. at ¶¶ 66-87.)
Plaintiff's sixth cause of action, for declaratory relief, should also be dismissed. (Id. at ¶¶ 88-93.) To the extent this cause of action is premised on state law, dismissal is clearly warranted. To the extent that plaintiff's sixth cause relies on federal law, this court declines to exercise its discretionary authority, under 28 U.S.C. § 2201, to offer federal declaratory relief. See Wilton v. Seven Falls Co., 515 U.S. 277, 287 (1995).
For these reasons, the court recommends dismissal of each of plaintiff's state law claims, as well as plaintiff's federal claims for injunctive and declaratory relief. Remaining are plaintiff's damages claims premised on federal law, as set forth in plaintiff's "First Cause of Action" (Cmplt. at ¶ 53-65), and reasonably construed herein.
V. Potentially Cognizable Claims
Defendants contend that each of plaintiff's federal claims should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim.
A motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6), challenges the sufficiency of the pleadings set forth in the complaint. Vega v. JPMorgan Chase Bank, N.A., 654 F. Supp. 2d 1104, 1109 (E.D. Cal. 2009). Under the "notice pleading" standard of the Federal Rules of Civil Procedure, a plaintiff's complaint must provide a "short and plain statement" of plaintiff's claims showing entitlement to relief. Fed. R. Civ. P. 8(a)(2); see also Paulsen v. CNF, Inc., 559 F.3d 1061, 1071 (9th Cir. 2009). In order to survive dismissal for failure to state a claim, a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 554 (2007). "A complaint may survive a motion to dismiss if, taking all well-pleaded factual allegations as true, it contains 'enough facts to state a claim to relief that is plausible on its face.'" Coto Settlement v. Eisenberg, 593 F.3d 1031, 1034 (9th Cir. 2010) (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)). "'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.'" Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806, 812 (9th Cir. 2010) (quoting Iqbal, 129 S. Ct. at 1949). The court accepts "all facts alleged as true and construes them in the light most favorable to the plaintiff." County of Santa Clara v. Astra USA, Inc., 588 F.3d 1237, 1241 n.1 (9th Cir. 2009). The court is "not, however, required to accept as true conclusory allegations that are contradicted by documents referred to in the complaint, and [the court does] not necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations." Paulsen, 559 F.3d at 1071 (citations and quotation marks omitted).
In ruling on a motion to dismiss pursuant to Rule 12(b)(6), the court "may generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice." Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 899 (9th Cir. 2007) (citation and quotation marks omitted). However, under the "incorporation by reference" doctrine, a court may also review documents "whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the [plaintiff's] pleading." Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005) (citation omitted and modification in original). The incorporation by reference doctrine also applies "to situations in which the plaintiff's claim depends on the contents of a document, the defendant attaches the document to its motion to dismiss, and the parties do not dispute the authenticity of the document, even though the plaintiff does not explicitly allege the contents of that document in the complaint." Id.
The court's assessment of cognizable federal claims set forth in plaintiff's "First Cause of Action," is also guided by the principles of administrative exhaustion, wherein the underlying relevant administrative grievances need not have identified every fact, defendant or legal theory, only that the allegations therein may reasonably be construed to include the alleged wrongs and named defendants identified in the suit. See Jones, 549 U.S. at 219; Griffin, 557 F.3d at 1120.
1. Attorney Calls
Plaintiff alleges that defendants violated his rights under the First, Fourth, and Fourteenth Amendments, and the attorney-client privilege, when they interfered with plaintiff's telephone calls with his attorney. For the following reasons, the court finds that plaintiff may state potentially cognizable claims under the Fourth and Fourteenth Amendment. However, the court recommends that plaintiff be granted leave to file an amended complaint that may include any of the following claims (but no others).
a. First Amendment "Prisoners have a First Amendment right to telephone access, subject to reasonable security limitations." Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996) (citing Strandberg v. City of Helena, 791 F.2d 744, 747 (9th Cir. 1986) (see cases cited therein)), amended by 135 F.3d 1318 (9th Cir. 1998); accord Halvorsen v. Baird, 146 F.3d, 680, 689 (9th Cir. 1998); Carlo v. City of Chino, 105 F.3d 493, 496 (9th Cir. 1997); Henry v. County of Shasta, 132 F.3d 512, 519 (9th Cir. 1997); Young v. Seling, 72 Fed. Appx. 657, 659 (9th Cir. 2003); Johannes v. County of Los Angeles, 2011 WL 6149253, *12 (C.D. Cal. 2001); Golden v. County of Tulare, 2009 WL 2407708 (E.D. Cal. 2009). However, the Ninth Circuit has emphasized that this right lacks definition, and may readily be subsumed by reasonable regulation. "The genesis of this purported [First Amendment] constitutional right to use a telephone is obscure. Our cases have not identified the source of the right, and our pronouncements of its existence have been conclusory and unnecessary to the decisions." Valdez v. Rosenbaum, 302 F.3d 1039, 1048 (9th Cir. 2002), cert. den. 538 U.S. 1047 (2003). "[A] prison inmate retains [only] those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system." Pell v. Procunier, 417 U.S. 817, 822 (1974). The reasonableness of a prison regulation (or policy, practice or decision), including one that restricts a prisoner's right to telephone access, is assessed pursuant to the factors articulated in Turner v. Safely, 482 U.S. 78, 89-90 (1986).*fn16 Valdez, 302 F.3d at 1048-49.
Significantly, plaintiff does not challenge the constitutionality of the state regulation that governs prisoners' telephone access. The subject regulation, Section 3282, Title 15, California Code of Regulations ("Section 3282"), is premised in part on the statutory rights accorded to prisoners by California Penal Code section 636 (proscribing, in pertinent part, the eavesdropping or recording of a confidential communication between a prisoner and his attorney), Section 637 (proscribing the disclosure of such confidential communications to third parties), and Section 637.2 (providing a private right of action, for statutory damages, against any person who violates the proscriptions set forth in Sections 636 or 637). Section 3282(g) sets forth the procedures by which a prisoner may place or receive a confidential attorney call, including the requirement that the inmate's attorney request in writing, and obtain, prior approval for the call. See Section 3282(g)(1)-(4). The approval or denial of such requests, and the designated date, time, duration and place of an approved confidential call, are delegated to the discretion of the "institution head or designee," "on a case-by-case basis." Section 3282(g)(1), (5), (6). "As long as the attorney/client communication privilege is not violated, a confidential call may be denied where the institution head, or his/her designee, determines that normal legal mail or attorney visits were appropriate means of communication and were not reasonably utilized by the inmate or attorney." Section 3282(g)(6).
Plaintiff acknowledges that the alleged incidents of monitoring that he challenges took placed in 2005, prior to implementation of pertinent amendments to Section 3282.*fn17
However, while the February 2008 amendments clarified the procedures and content of an attorney's request, including the necessity of obtaining an attorney background check, the amendments do not appear to have materially changed the nature or substance of the process. Prior to 2008, as now, "confidential calls [were] approved on a case-by-case basis by the institution head or designee only upon written request from the inmate's attorney," and could be "denied where the institution head or her/her designee determines that normal legal mail or attorney visits were appropriate means of communication. . . ." Section 3281(g)(1), (2) (2007). See n.6, supra.
Plaintiff contends that defendants failed to comply with Section 3282, in three ways:*fn18 (1) by failing to inform plaintiff of the procedures for obtaining a confidential attorney call; (2) by purposefully misinforming plaintiff that his only options were a monitored call or a visit by his attorney; and (3) by failing to observe the confidentiality of calls that were allegedly pre-approved in compliance with Section 3282.
The court finds that these challenges fail to state a cognizable First Amendment claim, based on the Ninth Circuit's reticence to clearly articulate such a right, and plaintiff's reliance on (rather than challenge to) Section 3282. However, because this court recommends that plaintiff be granted leave to amend his complaint to more clearly articulate his Fourth and Fourteenth Amendment claims, plaintiff should also be granted leave to again attempt to state a potentially cognizable claim under the First Amendment.
b. Fourth Amendment
To the extent that plaintiff contends that defendants failed to observe the confidentiality of calls that were allegedly made in compliance with Section 3282, the Fourth Amendment may be implicated. "The Fourth Amendment is not triggered unless the state intrudes into an area in which there is a constitutionally protected reasonable expectation of privacy." U.S. v. Van Poyck, 77 F.3d 285, 290 (9th Cir. 1996) (citations and internal quotation marks omitted). The Ninth Circuit has recognized that a prisoner may have a reasonable expectation of privacy, under the Fourth Amendment, in a "properly placed" telephone call with his attorney.*fn19 Id. at 291 n.9.
The court cannot determine, pursuant to the instant complaint, which of the subject calls plaintiff alleges were "properly placed," in compliance with Section 3282 (as it then existed), or the alleged roles of each defendant. Therefore, this court recommends that plaintiff be granted leave to amend his complaint so that he may more clearly articulate potential Fourth Amendment claims, based on his allegations that specific defendants improperly monitored plaintiff's specifically approved confidential calls.
c. Fourteenth Amendment
To the extent that plaintiff contends that defendants failed to inform him of the procedures for placing or receiving confidential attorney calls and/or purposefully misled plaintiff regarding his options, the Fourteenth Amendment may be implicated. Plaintiff's contentions that defendants violated Section 3282, and thereby denied him the process to which he was allegedly entitled, may state a potentially cognizable claim under the procedural guarantees of the Due Process Clause.
The most analogous Ninth Circuit case appears to be Carlo v. City of Chino, 105 F.3d 493 (9th Cir. 1997), in which the court found that California Penal Code section 851.5 --which requires that individuals be informed within three hours of arrest, "except where physically impossible," that they have the right to make three completed telephone calls -- creates a state liberty interest, subject to the procedural protections of the Fourteenth Amendment. Id. at 496-500. The court held that "the right granted by the statute is one of 'real substance' and merits constitutional due process protections." Id. at 500, quoting Wolff v. McDonnell, 418 U.S. 639, 557 (1974). Accord Gallagher v. City of Winlock, 287 Fed. Appx. 568, 576 n.7 (9th Cir. 2008) (construing, in dicta, a liberty interest in a Washington state statute that accords individuals arrested for criminal offenses with the "right to call a lawyer").
However, Carlo may be distinguishable from the instant case in important ways. In assessing whether the statute at issue created a protected liberty interest, the Ninth Circuit relied on Supreme Court cases finding liberty interests only in state provisions that are both "mandatory" and "cannot be eviscerated absent meeting specific substantive preconditions." Carlo, 105 F.3d at 497, citing Hewitt v. Helms, 459 U.S. 460, 471-72 (1983). The Ninth Circuit noted subsequent Supreme Court decisions that appear to establish an even higher threshold, viz., "recognizing liberty interests in state laws [only] where they grant 'freedom from restraint . . . which imposes atypical and significant hardship . . ..'" Carlo, 105 F.3d at 498-99, quoting Sandin v. Conner, 515 U.S. 472, 484 (1995).
The telephone access rights accorded to inmates by Section 3282 appear to be less compelling than those accorded to arrestees pursuant to Penal Code section 851.5. The right of a convicted felon to confidential attorney calls, pursuant to Section 3282, is not clearly "mandatory," and the discretion accorded the "institution head" in deciding whether to grant such access is limited only by his determination "that normal legal mail or attorney visits . . . were not reasonably utilized." Section 3282(g)(6).
Nevertheless, the Ninth Circuit, without undertaking such an analysis, has recognized in other cases a Fourteenth Amendment right of prisoners to have meaningful access to the courts, which has been construed to include the opportunity to have private conversations with one's attorney. See Ching v. Lewis, 895 F. 2d 608, 609 (9th Cir. 1990) (prisoner's Fourteenth Amendment right to have meaningful access to the courts includes contact visits with counsel, because "[t]he opportunity to communicate privately with an attorney is an important part of that meaningful access") (citation omitted); accord Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994); Meyers v. Pope, 303 Fed. Appx. 513, 516 (9th Cir. 2008) ("[t]he right of access to courts has been found to encompass the right to talk in person and on the telephone with counsel in confidential settings") (citation and internal quotation marks omitted).
Pursuant to these authorities, the court finds that plaintiff may state a potentially cognizable Fourteenth Amendment claim. However, the court cannot determine, pursuant to the instant complaint, which of plaintiff's calls may be actionable under the Fourteenth Amendment, or the alleged role of each defendant. Therefore, this court recommends denial of defendants' motion to dismiss on this ground, and further recommends that plaintiff be granted leave to file an amended complaint that clarifies his Fourteenth Amendment claim against the appropriate defendants.
d. Attorney-Client Privilege
As framed, plaintiff fails to state a cognizable claim pursuant to the attorney-client privilege. The parties' discussion whether plaintiff "waived" his attorney-client privilege, because he "chose" to proceed with his calls in the presence of third parties, would appear to be applicable only to "properly placed" calls, which, to the extent they occurred, have not been clearly identified in the complaint.
"The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law." Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). "Except as otherwise required by an Act of Congress or in rules prescribed by the Supreme Court . . . privilege . . . shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience . . . ." Fed. R. Evid. 501. The Ninth Circuit has explained that the attorney-client privilege applies, "(1) where legal advice of any kind is sought (2) from a professional legal advisor in [her] capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal advisor, (8) except the protection be waived." United States v. Landof, 591 F.2d 36, 38 (9th Cir. 1978). However, "[t]he attorney-client privilege is an evidentiary rule designed to prevent the forced disclosure in a judicial proceeding of certain confidential communications between a client and a lawyer. . . .[T]he rule does not apply where there is no forced disclosure of a confidential communication in a judicial proceeding." Wharton v. Calderon,127 F.3d 1201, 1205 (9th Cir. 1997) (citation and internal quotation marks omitted).*fn20
Subject to these considerations, the court recommends that plaintiff be permitted the opportunity, in an amended complaint, to further develop this claim.
2. Retaliation Claims
Plaintiff alleges violation of his First Amendment right to access the courts, and to pursue administrative grievances, by: (1) defendants Ryan, Nunez, Chavarria, Anaya and Rush allegedly interfering with plaintiff's right to make confidential attorney calls, in retaliation for plaintiff pursuing a separate civil rights action, Walker v. Gomez, et al., Case No. 03:96-cv-0609 PCL; and (2) by defendant Price allegedly harassing plaintiff and threatening to place him in administrative segregation, in retaliation for plaintiff filing an administrative grievance (challenging the denial of confidential attorney calls).*fn21
To state a claim for retaliation under the First Amendment, a plaintiff must allege that, on a specific date, an individual state actor took an adverse action against plaintiff in retaliation for plaintiff engaging in a constitutionally protected activity, and that the adverse action did not reasonably advance a legitimate penological objective. Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005);*fn22 Rizzo v. Dawson, 778 F.2d 527, 531-32 (9th Cir. 1985).
Direct and tangible harm will support a First Amendment retaliation claim even without demonstration of a chilling effect on the further exercise of a prisoner's First Amendment rights. Rhodes, at 568 n.11. "[A] plaintiff who fails to allege a chilling effect may still state a claim if he alleges he suffered some other harm" as a retaliatory adverse action. Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009), citing Rhodes, 408 F.3d at 568, n.11. Thus, plaintiff need not prove that the adverse action allegedly taken violated a constitutional right. Pratt v. Rowland, 65 F.3d 802, 806 (1995) (stating that to prevail on a retaliation claim, plaintiff need not "establish an independent constitutional interest" was violated); see also, e.g., Hines v. Gomez, 108 F.3d 265, 268 (9th Cir.1997) (upholding jury determination of retaliation based on filing of a false rules violation report); Rizzo, supra, 778 F.2d at 531 (transfer of prisoner to a different prison constituted adverse action for purposes of retaliation claim). Rather, the interest asserted in a retaliation claim is the right to be free of conditions that would not have been imposed but for the alleged retaliatory motive. However, not every allegedly adverse action will support a retaliation claim. See e.g. Huskey v. City of San Jose, 204 F.3d 893, 899 (9th Cir. 2000) (retaliation claim cannot rest on the logical fallacy of post hoc, ergo propter hoc, literally, "after this, therefore because of this.").
The court finds that each of plaintiff's exhausted retaliation claims appears to be potentially cognizable based on the allegations of the current complaint. However, these claims, and the factual allegations in support of these claims, should be refined and clarified in plaintiff's amended complaint, without reference to plaintiff's unexhausted retaliation claims (i.e. plaintiff should specify what actions each defendant allegedly took against plaintiff in retaliation and what harm allegedly resulted).
3. Additional Claims
In addition to the above-noted claims, plaintiff alleges throughout his complaint that defendants Ryan, Bourland, Nunez and Chavarria acted both directly and in their supervisory capacities. Plaintiff is informed that, to state a claim for relief under Section 1983 based on a theory of supervisory liability, he must allege (and be able to prove) facts that the supervisory defendants: (1) personally participated in the alleged deprivation of constitutional rights, (2) knew of the violations and failed to prevent them, and/or (3) promulgated or implemented a policy so deficient that the policy itself is a repudiation of constitutional rights and is the moving force of the constitutional violation. Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989) (citations omitted); see also Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Facts consistent with at least one of these scenarios must be specifically alleged in order to state a potentially cognizable claim against a supervisory defendant.
Plaintiff also repeatedly alleges, in the current complaint, that defendants were engaged in a "civil conspiracy" to violate plaintiff's rights. To state a claim for civil conspiracy, under 42 U.S.C. § 1983, a plaintiff must allege that "two or more persons . . ., by some concerted action, intend[ed] to accomplish some unlawful objective for the purpose of harming [plaintiff] which results in damage." Gilbrook v. City of Westminster, 177 F.3d 839, 856-57 (9th Cir. 1999) (en banc), quoting Vieux v. East Bay Regional Park District, 906 F.2d 1330, 1343 (9th Cir. 1990) (internal quotation marks omitted). "[T]he party must provide material facts that show an agreement among the alleged conspirators to deprive the party of his or her civil rights," Margolis v. Ryan, 140 F.3d 850, 853 (9th Cir.1998) (citations omitted), and must identify the alleged harm. Facts alleged in support of a conspiracy theory must be specific, and clearly articulate the alleged involvement of each identified defendant.
C. Summary
For the foregoing reasons, this court recommends that defendants' motion to dismiss plaintiff's federal claims be denied, and that plaintiff be granted leave to file an amended complaint that clearly articulates each of his federal claims, and specifically identifies how each defendant is allegedly implicated.
VI. Conclusion
For the foregoing reasons, IT IS HEREBY RECOMMENDED that:
1. Defendants' motion to dismiss (Dkt. No. 22), should be granted in part, and denied in part.
2. Plaintiff's state law claims ("causes of action" two through five), and federal claims for injunctive and declaratory relief, should be dismissed without leave to amend.
3. This action should proceed only on plaintiff's federal damages claims under Section 1983 ("cause of action" one), against the current defendants (Ryan, Bourland, Nunez, Chavarria, Anaya, Rush, and Price), for the reasons set forth herein.
4. Plaintiff should be granted leave to file and serve, within thirty (30) days after the adoption of these findings and recommendations, an amended complaint that clearly alleges, against the appropriate defendants, only those federal claims addressed herein. The amended complaint should be limited in length to twenty (20) pages, and should be typed and double-spaced. Failure of plaintiff to timely file and serve an amended complaint that conforms to these parameters should result in the dismissal of this action.*fn23
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be filed and served within 14 days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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Cottage | Waitakere City | #37040
Quirky, vintage style cottage, at the foothills of the Watakere Ranges. West Auckland.. The house itself is an older style home with updated kitchen and bathroom. The setting is a quiet country road, peaceful and with nature. The West Auckland location is renowned for its artistic, colourful unspoiled landscape. Originally a vineyard area it is now well developed but still offering the gateway to the rugged West Auckland beaches Discover the natural beauty and dramatic black sand beaches of the Waitakere Ranges and the wine districts of Henderson and Kumeu Valley. Where else can you leave the CBD and in thirty minutes be tramping in a rain-forest, walking on a wild unspoiled beach, surfing in challenging waves or relaxing in a winery cafe? The Waitakere Ranges Regional Park is home to some of Auckland's most visited natural treasures. Explore the lush native rainforest, scenic coastline and windswept black-sand beaches of Piha, Karekare, Bethells and Muriwai. Waitakere Ranges walks are the best way to experience the area's beauty.Woodhill Forest is a stunning natural playground for adventure lovers. Tackle some of Auckland's best mountain biking trails or simply enjoy the scenery on a trail walk. , Kumeu is a refreshing blend of boutique wineries, orchards and rolling green farmland. Home to Auckland's oldest winery, the area boasts award-winning restaurants, fascinating galleries and diverse speciality shops.all year round. This foothill country area is one of the last rural areas closest to the Auckland CBD, just a 30 minute drive. The West Auckland rail service is excellent travel resource and Arapito cottage isa 20 minutes walk or 5 minute drive to Swanson railway station and café if you wish to explore more urban areas. Either walk down the country road of Arapito cottage or drive to many of the close beautiful bush walks and waterfalls located nearby. A vehicle is available for hire, conditions apply.
Master Bedroom
1 x Queen bed
Small Single
1 x Single bed
|Rate period
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06-Dec-16 to 09-Dec-16
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10-Dec-16 to 31-Jan-17
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*Pricing may vary depending on the dates you choose and the number of guests. Additional charges (extras) and minimum stay criteria may also apply. Bookings paid for through Bookabach online payments incur a 3% credit card transaction fee.
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Janome 525S Sewist * Popular Buy * save £40
IN STOCK - Order online or call 0800 567 7111
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PRICE GUARANTEE - If you find this product cheaper elsewhere in the UK, we will match the price!
This Janome 525s is a lightweight sewing machine with a top loading, jam proof bobbin system and convertible free arm for circular stitching, the free arm extension also has a pull out accessories storage draw.
Janome 525s Sewits offers both stitch width and length adjustment and a drop feed facility for freehand embroidery and darning.
A few reasons why this Janome 525s Sewist will be a best seller....
1-step button holes, needle threader, stitch lenght and width adjustment, top drop in spool, hard cover, stretch stitches,...... light weight, this is a must have sewing machine and at this price... nothing will come close to it for price or Janome quality....
The Janome 525 also has an auto-declutch bobbin winder, a two speed foot control and is supplied with a hard cover. Weight only- 8kg.
- 24 Stitch selections
- Top loading bobbin
- Variable stitch length
- Variable stitch width
- 1 Step auto sizing buttonhole
- Built in needle threader
- Adjustable foot pressure
- Drop feed facility
- Stretch stitches
- Satin stitches
- Hard cover
- Free arm storage compartment
- Weight 8kg approx.
Additional Features:
- Standard Accessories:
- Machine Cover
- Adjustable Blind Hem Foot
- Buttonhole Foot
- Zig-Zag Foot
- Zipper Foot
- Satin Stitch Foot
- Set of Needles
- Screwdriver
- Seam Ripper
- Lint Brush
- Bobbins (4)
- Spool Holder
- Additional Spool Pin
- Spool Pin Felt
2 YEAR MANUFACTURERS GUARANTEE ON THIS MACHINEGuarantee Conditions
We have been established since 1903 so please don't be sceptical when it comes to our long warranty offers. There are 5 generations in our business!
Agency machines are machines that we sell on behalf of Janome, Brother and Elna, the guarantee for these machines vary from 2-3 years parts and labour only.
Important Notice
If you are using a domestic / computer machine for any business venture, large or small your guarantee is void, we only guarantee machines for domestic use, if you are a small cottage industry, as long as you notify us in writing as to what product you are buying, we will then advise you if it is correct for your business.
As an example buying a machine for £100 would be perfect for any household, but it would not be designed to support a day to day business.
Guarantees from the Manufacturers
Our Machines are brand new and have a full manufacturer's warranty. Registration may be required.
Manufacturers warranties normally vary between 2 years and 5 years.
When purchasing a selected new machine from this website you're safe in the knowledge that you can buy with peace of mind. We only sell quality products . There is normally a charge to extend the warranty, however we have wavered this payment.
What's covered? Bone-fide faults. As per the manufacturers Guarantee.
What's not covered? Very little. Naturally this extended cover excludes willful damage, misuse, repairs caused by overuse or repairs made necessary by commercial use. Also "consumable items" such as belts, bulbs,bobbin cases and needles etc as stated on the manufacturers guarantee document. Sorry we can't extend the warranty on presses, unless on promotion
All our new sewing machines undergo a pre delivery inspection and are tested for your assurance, so you can be confident that your machine will reach you, ready to tackle the toughest tasks, straight from the box.
If for some reason your new machine is found to be in need of attention due to problems caused through faulty components and/or poor workmanship for a period of 3 months we will sanction our "no carriage cost" back to base, repair and return of your machine within the UK mainland.
Please phone first as all repair/returns must be authorised prior to being sent. We will e-mail you or post a RMA form before repairs are authorised, please sign and return as soon as you can to speed up the process of repair.
Please retain the original packing materials - just in case your machine has to be returned to us. If you choose to dispose of the original packaging then this is against our advice. We cannot be held responsible for any damages caused in transit if the machine is not in its original packaging, however we will not collect if you do not retain packaging internal as well as external.
This does not affect your statutory consumer rights and will apply only to machines purchased for use in the UK mainland. All machines must be used for normal domestic purposes. The waranty does not cover consumable items such as: needles, bobbins, bobbin cases, bulbs, belts, non-metal parts, loopers, blades, timing adjustments etc as stated in the manufacturers warranty.
Very often, problems with sewing machines, presses and overlockers are down to user error. Customers purchasing a Sewing Machine can email or phone our helpline for advice, however the first point of call should be the instruction manual.
This guarantee does not affect your statutory consumer rights
Industrial machines are covered for 1 year only. This is due to the weight and size of the machine, we cannot collect or redeliver during the guarantee, however, all labour and parts are free for the first year. We charge £100 for a call out within a 50 mile radius of our workshop, or you can bring to our workshop at no cost.
Please ask our operators for current promotions!
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Delivery Policy
UK mainland delivery is free on all orders for items over £30
We aim to dispatch orders on the same day if ordered before 1pm*
We use both Parcelforce and DPD for deliveries.
We aim to deliver orders within 1-2 working days with the exception of Pfaff & Viking Husqvarna machines as they can take between 5 - 7 working days, plus non stock items. Delivery times may vary in sales periods. Deliveries must be signed for, this is to ensure the goods are delivered and received correctly. If you can't be there to sign for delivery, please provide special delivery instructions during the checkout process for our drivers to leave the item(s) with a neighbour or in some other safe place. You are able to specify any delivery address while ordering and have your order delivered to your own home, a workplace, or a friend's address, etc.
Please note that SHOWROOM MODELS & EX-DISPLAY MODELS are tested prior to being sent - please allow 5 working days for delivery.
Please note that Adjustoforms are made to order and generally take 3-5 working days for delivery.
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Please give clear delivery instructions at the time of purchase, so that we may pass onto international couriers.
If you wish to provide delivery instructions after placing your order, please contact us as soon as possible quoting order number.
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Chrysler 300M Repair and Maintenance
A guide to problems, costs, maintenance and repair for your Chrysler 300M
Never overpay. Check prices with our estimator
Verified by mechanics, reported by drivers like you
Ask a mechanic in our community
Our experts translate recalls into plain English
Chrysler 300M ProblemsDamaged Cam Position Sensor May Cause Engine Problems
A damaged cam position sensor (or its wires and connector) can cause intermittent stalling, stumbles, or hard starting.
Worn sway bar bushings or sway bar end links may cause a rattling or clunking noise from the front suspension during low-speed driving. Though not always the root cause, front struts are often replaced for this condition.
The window glass lift plates tend to bend or break and cause the window glass to tilt and bind in the door. The lift plates can be replaced separately from the window regulator. In more severe cases, however, a new window regulator may also require replacement.
Chrysler 300M QuestionsOn a 2001 300m which motor is compatible for replacement (1 answer)
I'm replacing a motor in a 01 300 w 3.5 liter engine. I was looking at compatible replacement
My daughter was driving my vehicle and stopped at a gas station and car would not start, tried to jump with another vehicle but would not start just ticked ,ticked let it sit on charge for a while lights inside came on but still would not start ,called AAA they came out hooked up there charger it...
My coolant is dripping out of an area around the front of the engine near the oil pan. I can't find any hoses leaking. Everytime I fill it up it just pours out from somewhere onto the metal piece in front bottom of the engine which blocks your view from seeing anything.
Chrysler 300M RecallsRecall 04V021000
An internal component in the hood latch may have been manufactured with a crack. The crack could spread and break, which would allow the primary and secondary latch spring to disengage. This condition could allow the hood to open unexpectedly while driving, which could increase the risk of a crash. Dealers will inspect the latch, and replace it if necessary. The recall began September 22, 2003. The Chrysler recall number is C29.


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This specialty niche online retailer focuses on a specific food and gift group that is universally loved by everyone. They have created a unique and sought after online space through the use of specific URL's, marketing and blogs to drive traffic to their sites. The business has a loyal following, and their products have been featured on FOX, NBC, ABC and numerous publications. The business sells its food and gift items individually and in bundles, and either one time sale or as a food-of-the-month offering, enabling multiple channels of revenue. In business since 2000, the business stands out from its competition by offering depth of product and the highest quality ingredients.
Financials (USD)
Asking Price $250,000
Sales $845,410
Profit $101,830
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Profitable E Commerce Business $250k. This profitable and successful e-commerce business has been in business Since 1989! Super Importer and Wholesaler for all sizes | ranges of Women's, Men, & Children ready-made wearing apparel, accessories items, and gifts. 100% E-commerce since 2004,...
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Heavyweight bomber jacket with a cool girl feel. Features front snap and zip closure pockets. Stretchy ribbed fabric details on the collar, sleeve cuffs and thick waistband. Cushioned lining.
Shrunken Bomber styled by the FP Me community
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77406 Highway 9 Ashland, Alabama 36251(256) 354-3735
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AboutMichael Dick is located at the address 77406 Highway 9 in Ashland, Alabama 36251. They can be contacted via phone at (256) 354-3735 for pricing, hours and directions.
Michael Dick has an annual sales volume of 501K - 999,999. .
For maps and directions to Michael Dick view the map to the right. For reviews of Michael Dick see below.
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text: Seller: -hersh- (5,037) 100%, Location: Indianapolis, Indiana, Ships to: US & many other countries, Item: 152313065852 Matching pair of Art Deco Porcelier wall mount bathroom sconces. One fixture features an electrical outlet. Each measures 5 5/8" tall by 4" wide. Beautiful flower design would look great in a closet as well. Please check out our other auctions thanks. Color: Gold


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Houses for Rent in Superior, IA
|4 Listings Found
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Cozy 2 beds home for rent. No 4MRERV steps. $525 Deposit. No Pets - No 4MRERV Smoking.
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- Product Description
How to Write a Story, Grades 4-6 is packed with easy-to-execute ideas and dozens of writing forms that will assist student in refining their sentence writing skills.
Lessons and reproducibles to help students learn the parts of a story cover:
- characters
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- conclusion
Guidelines are presented for writing in six different genres:
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Since 1979, Evan-Moor Educational Publishers has provided educators with practical, creative, and engaging PreK–8 materials to support and enrich the core curriculum.
We strive to produce educational materials that are aligned with current standards and best educational practices—and with student interests and motivations. We pride ourselves on our ability to create products that not only build and reinforce basic and complex skills, but that develop a curiosity about the subjects in which those skills are taught.
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I must say I am quite happy, I've been an avid fan of Orlando Bloom since the Lord of the Rings. I really hope they handle his return well. What are all of your thoughts on this?Read more >


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High Broadway Show
Discount Tickets to High on Broadway
High on Broadway
Kathleen Turner (Romancing the Stone, Who Framed Roger Rabbit) is back on Broadway in the hard-hitting new Matthew Lombardo drama High. A far cry from her most recent Broadway roles in Who's Afraid of Virginia Woolf? and the stage version of The Graduate, Turner is now playing a nun in High.
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High Review and Age Recommendation
See our Broadway Show Summary page for a summary, our review, and information on age appropriateness.
HIGH review
Broadway Theatre
High is currently playing at the following Broadway Theatre:
Booth Theatre
222 West 45th Street
New York, NY 10019
Click Here For More Info On The Theatre
Booth Theatre
222 West 45th Street
New York, NY 10019
Click Here For More Info On The Theatre
Show Synopsis:
A tough-talking nun sponsors a teenage drug addict and finds that her faith is tested as a result of her dual role as an addiction counselor and a servant of God.
Kathleen Turner
Stephen Kunken
Evan Jonigkeit
Production Credits:
Rob Ruggiero (Direction)
David Gallo (Set Design)
Jess Goldstein (Costume Design)
John Lasiter (Lighting Design)
Vincent Olivieri (Sound Design and Original Compositions)
Other Credits:
Matthew Lombardo (Playwright)
Summary: A nun with a past (Kathleen Turner) counsels a teenage drug addict and finds her fragile faith is tested by the experience.
Age: Recommended for ages 17+. Contains adult content and full male nudity. A parent or guardian will be required to accompany audience members under 14.
Children under the age of 4 are not permitted in the theatre.
Our Recommendation: Matthew Lombardo's intimate drama offers an honest and painful look at what addiction can do to its victims, both those who survive and those who don't. Although Evan Jonigkeit sometimes displays too much affectation in his portrayal of an abused and drug-addicted teen, overall he offers a sensitive performance that makes you alternately hate and pity his damaged character.
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