ERICA P. GROSJEAN, Magistrate Judge.
Plaintiff Thomas Goolsby, along with Kevin Hunt, Paul Diaz, David Baumgaertel, and Jesse Gehrke, state prisoners and former state prisoners proceeding pro se, commenced this action on January 25, 2013, against Defendants Holland, Stainer, Lundy, Foster, Plumlee, Uribe, and Jordan (collectively "Defendants"). (ECF No. 1.)
On May 2, 2013, the Court issued an order severing the claims and requiring each plaintiff to file an amended complaint for their own actions within thirty days. (ECF No. 9.) On June 5, 2013, Plaintiff Thomas Goolsby ("Plaintiff") appealed the court's order to the Ninth Circuit Court of Appeals. (ECF No. 14.) On June 5, 2013, the Court stayed this action pending resolution of Plaintiff's appeal. (ECF No. 20.) Plaintiff's appeal was resolved, and on September 23, 2013, the stay was lifted. (ECF Nos. 24, 25, 26.) On September 25, 2013, Plaintiff filed the First Amended Complaint. (ECF No. 31.) Plaintiff is now the sole plaintiff in this case.
On May 21, 2014, the Court screened Plaintiff's First Amended Complaint and issued an order requiring Plaintiff to file a Second Amended Complaint that corrected the deficiencies found. (ECF No. 33.) On June 6, 2014, Plaintiff filed the Second Amended Complaint. (ECF No. 34.) On March 24, 2015, the Court screened Plaintiff's Second Amended Complaint and found that it states certain cognizable claims.
Because the Court found certain cognizable § 1983 claims in screening the Second Amended Complaint, the Court exercised supplemental jurisdiction over Plaintiff's state law claims that form part of the same case or controversy as Plaintiff's cognizable federal claims. The Court made no determination about the viability of Plaintiff's state law claims that related to general negligence, premises liability, violation of the Bane Act, and failing to comply with rules and policies.
On March 8, 2016, Defendants filed a Rule 56 motion for summary judgment, or in the alternative, partial summary judgment. (ECF No. 74.) In that same motion, Defendants included a motion for an order requiring security from a vexatious litigant. On March 25, 2016, Plaintiff filed an opposition to the motion.
Plaintiff is a prisoner in the custody of California Department of Corrections ("CDCR"), presently incarcerated at Pelican Bay State Prison ("PBSP") in Crescent City, California. The events at issue in the Complaint allegedly occurred at California Correctional Institution ("CCI"), when Plaintiff was incarcerated there. Plaintiff's factual allegations follow.
From February 11, 2011 through March 27, 2012, Plaintiff was housed in the segregated housing unit ("SHU") at CCI. During the thirteen months he was housed in SHU, Plaintiff's exercise time averaged around 12 minutes per day. Additionally, Plaintiff's exercise area amounted to a 150 square foot metal cage, which was only 25 square feet larger than Plaintiff's cell. The small size of the exercise area was such that Plaintiff was unable to run, jog, or walk laps. Plaintiff repeatedly requested that he be provided adequate exercise time and an adequate exercise area; however, these requests were denied. Plaintiff suffered serious physical injuries and psychological injuries.
Baffles that eroded with time created a back-flowing problem within the cells at CCI. Sewage from the toilet of one cell fills the toilet of another cell each time the toilet is flushed. The toilets lack covers, and each time a prisoner flushes toilet waste, sewage particles fly into the air. Plaintiff was forced to eat every meal in his cell in these conditions. Plaintiff wrote Defendants and made each of them aware of the unsanitary conditions. Plaintiff requested that if he could not get the toilets fixed immediately, that he at least have access to a scrub pad, gloves, and cleaner, in order to sanitize his cell. Plaintiff's requests went unanswered. Plaintiff contracted a skin infection and stomach illness which caused him pain, itching, burning, and suffering.
In November 2011, Plaintiff was placed in a cell that had a leaking roof. The leaking was constant, and Plaintiff observed mold patches all along the five to six foot crack in his ceiling. Plaintiff submitted numerous work orders and complained directly to numerous Defendants, however, the leak was never fixed. Plaintiff slipped and fell on the concrete floor, which resulted in a back injury. Plaintiff also suffered respiratory injuries.
Plaintiff requests monetary damages as relief.
Any party may move for summary judgment, and the Court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) (quotation marks omitted);
Defendant does not bear the burden of proof at trial and in moving for summary judgment, he need only prove an absence of evidence to support Plaintiff's case.
In judging the evidence at the summary judgment stage, the Court may not make credibility determinations or weigh conflicting evidence,
Initially, Defendants argued that Plaintiff's Appeals were not filed timely making them procedurally deficient, and therefore, Plaintiff failed to properly exhaust an administrative remedy.
Defendants allege that Plaintiff first became aware of the inadequate exercise time, toilet backflow, and mold and leaking roof issues when he first arrived to SHU on February 11, 2011. Defendants assert that Plaintiff: (1) did not submit his inadequate exercise time Appeal until December 17, 2011; (2) did not submit his toilet backflow Appeal until September 4, 2011; and (3) did not submit his mold and leaking roof Appeal until January 24, 2012. (RJN Exhs. N, P, R.) Because these grievances were filed more than thirty days after the time these continuing issues were first noticed, Defendants initially claimed Plaintiff's case should be dismissed for non-exhaustion.
It is undisputed that Plaintiff's appeals were heard on the merits. (RJN Exhs. N, P, R.) Plaintiff properly cites to
Defendants' motion for summary judgment as to their argument pertaining to Plaintiff's failure to exhaust administrative appeals has now been withdrawn.
Defendants next argue that Plaintiff's inadequate exercise time and leaking roof Government Claims were submitted too long after the first time these continuing issues arose, and failed to name individual prison officials responsible for these prison conditions. For these reasons, Defendants argue that Plaintiff's claims of negligence and violation of the Bane Act should be dismissed on summary judgment.
In opposition, Plaintiff maintains that his Government Claims pertaining to inadequate exercise time and a leaking roof, like his appeals, were accepted and heard on the merits. (RJN Exhs. O, S.) Additionally, the Government Claims Board never refused to accept either claim for failure to name defendants. (RJN Exhs. O, S.) As to Defendants' argument that Plaintiff waited too long to file his lawsuit after learning of his leaking roof Government Claim denial, Plaintiff maintains that summary judgment should be denied because the limitations period was tolled while he was exhausting administrative remedies.
The requirement to submit a Government Claim is a separate requirement from the requirement to exhaust an available administrative remedy, both of which must be satisfied before suit can be filed.
Based on the doctrine of equitable tolling, the running of the six-month limitations period under the California Government Claims Act can be suspended in certain instances.
In regards to Plaintiff's inadequate exercise time Claim, Defendants allege that Plaintiff knew of the issue and alleged injury beginning on February 11, 2011, the first time these continuing problems took place, but that a Claim was not submitted until August 20, 2012. (RJN Ex. O.) Additionally, the Claim also failed to list the names of the staff members involved.
Though there is dispute as to whether the claims were procedurally deficient, it is undisputed that Plaintiff did file Government Claims pertaining to inadequate exercise time and a leaking roof. (RJN Exhs. O, S.) The claim intake letters, provided by Defendants, each state that "The VCGCB will act on your claim at the . . . hearing. You do not need to appear at this hearing. The VCGCB's rejection of your claim will allow you to initiate litigation should you wish to pursue this matter further." (RJN Exhs. O, S.) These letters sufficiently show that Plaintiff's Government Claims, at the very least, were allowed to proceed to a hearing before the Government Claims Board. Therefore, irrespective of any procedural deficiencies, the Government Claims Board accepted Plaintiff's claims and did not reject them for being late.
The issue of when a claim accrues in the case of a continuing violation is not a clear one. Where a temporary and brief leak in a roof (or any of the other alleged problems) may not rise to the level of a constitutional violation, a continued and unfixed leaky roof over a long period of time may. The Court is not persuaded that the claim for such continuing violations began to accrue on the first day the issue was noticed. In the end, the Court looks to the fact that the Government Claims Board accepted Plaintiff's complaint without finding it deficiently late. The Court does not find any case precedent establishing applicable law related to deficient Government Claims that are nonetheless accepted and heard on the merits. Nonetheless, the Court finds that the same principle regarding deficient administrative appeals heard on the merits, discussed above, is guiding here for the same reason. The principle, provided by the court in
We next turn to the issue of how soon Plaintiff filed the complaint compared to when the Government Claims Board authorized litigation. It is undisputed that Plaintiff's Government Claim pertaining to mold and a leaking roof was rejected on May 25, 2012. (RJN Ex. S.) It is further undisputed that Plaintiff did not initiate this action until January 25, 2013, eight months later. (ECF No. 1.)
Plaintiff argues that he did not file his complaint earlier because the prison grievance process had not yet ended. In other words, if he filed his complaint within six months from clearance from the Government Claims Board, it would have been subject to dismissal for failure to exhaust administrative remedies. Plaintiff provides evidence that: (1) Plaintiff filed his leaking roof Appeal on January 24, 2012; (2) the Appeal was cancelled at the third level on August 6, 2012 due to Plaintiff being transferred from CCI to PBSP; (3) Plaintiff filed an appeal of the cancellation on August 16, 2012; and (4) the third level denied Plaintiff's cancellation appeal on October 8, 2012. (Plaintiff's Opposition, Ex. I.) Though his Government Claim was rejected on May 25, 2012, Plaintiff was still appealing the cancellation of his leaking roof Appeal through October 8, 2012. If Plaintiff had brought his cause of action after his government claim was exhausted on May 25, 2012, but before his appeal was exhausted on October 8, 2012, Defendants undoubtedly would have moved to dismiss the action on the ground that Plaintiff had failed to exhaust an administrative remedy.
At oral argument, defense counsel was not familiar with the specific facts regarding when Plaintiff's appeal was completed and why it was cancelled initially. Nevertheless, defense counsel conceded that a complaint filed when an administrative appeal was pending for the underlying grievance would be subject to dismissal for non-exhaustion. When asked what an inmate should do to have his claim heard on the merits if the grievance process was continuing when the six month period after Government Claims clearance had expired, defense counsel could not provide any guidance other than to say that they were independent requirements.
Thus, it appears that if the doctrine of equitable tolling is not permitted here, Plaintiff would be subjected to an administrative catch-22. If Plaintiff were to have filed within 6 months of the Government Claims clearance, his complaint would have been dismissed for failure to exhaust administrative remedies. Because he waited until the grievance process finished, he faces dismissal under Government Code section 911.2(a).
Under these specific circumstances, the Court finds that equiptable tolling should apply and permit Plaintiff to delay filing his complaint until his administrative remedies have been exhuasted. The injustice to Plaintiff that would be occasioned by the bar of his claims far outweighs any effect upon the public interest or policy expressed by the limitations statute. The principal purposes of the limitations period "are to give notice to the [public entity] in order that it be afforded a timely opportunity to investigate the claim and determine the facts," and "to avoid unnecessary lawsuits by giving [it] the opportunity to settle meritorious claims without going through an avoidable trial."
Under Local Rule 151(b) (Security for Costs), this Court has adopted "[t]he provisions of Title 3A, part 2, of the California Code of Civil Procedure, relating to vexatious litigants . . . as a procedural rule of this Court on the basis of which the Court may order the giving of a security, bond, or undertaking, although the power of the Court shall not be limited thereby." L.R. 151(b). Section 391.1 of Title 3A, part 2, provides:
Cal. Civ. Proc. Code § 391.1.
Under California law, a "vexatious litigant" is a person who does any of the following:
Cal. Civ. Proc. Code § 391.
However, this Court looks to federal law for the definition of vexatiousness—not California law. Under federal law, the criteria under which a litigant may be found vexatious are narrower and more stringent than under state law. The Ninth Circuit has defined vexatious litigation as "without reasonable or probable cause or excuse, harassing, or annoying."
Defendants argue that Plaintiff qualifies as a vexatious litigant because he was declared a vexatious litigant by the Kern County Superior Court in two separate actions and has commenced, prosecuted, or maintained pro se more than five unsuccessful actions in the last seven years. In support, Defendant has identified the following allegedly unsuccessful cases.
In addition to Plaintiff's history of bringing unsuccessful lawsuits and his being declared a vexatious litigant twice previously, Defendants argue that Plaintiff lacks a reasonable probability of success on the merits of his various claims.
Based on Defendants' evidence that Plaintiff is a vexatious litigant and is unlikely to prevail in this case, Defendants request that Plaintiff be required to post security in the amount of $20,400.00, for attorney's fees incurred by the State of California in litigating the action, and if Plaintiff fails to timely post security, that this case be dismissed.
Plaintiff does not dispute that he filed the above-referenced cases in the past seven years; however, Plaintiff argues that Defendants' motion to declare him a vexatious litigant relies exclusively on state law. Plaintiff asserts that his past cases, while not always successful, were not "frivolous, harassing or made for an improper purpose." Additionally, Plaintiff disputes Defendants' assertions that these cases were determined adversely to him. Furthermore, Plaintiff contends that none of his claims pertaining to a leaking roof or mold have ever been filed in any other lawsuit or court than this one. (Plaintiff's Opposition, Ex. A.) Lastly, Plaintiff argues that Defendants have failed to prove that Plaintiff lacks a probability to prevail on the merits of his claims.
Plaintiff maintains that he was erroneously declared a vexatious litigant in
With respect to the finding of a vexatious litigant, the Court reiterates that the focus is on the number of suits that were frivolous or harassing in nature, rather than on the number of suits that were simply adversely decided.
After reviewing the previous cases filed by Plaintiff, the Court finds Plaintiff to be litigious, rather than vexatious under the federal standard. Plaintiff brought a variety of claims during a seven-year period, including adverse conditions of confinement, inadequate medical care, personal injury, and violations of due process. The named defendants, events, and claims vary over time from case to case, although Plaintiff did name some of the same defendants in more than one case. Under this record, Plaintiff cannot be declared vexatious for bringing the same unmeritorious claims in multiple cases.
Plaintiff contends that
This Court finds that at least one action was dismissed for failure to exhaust administrative remedies. Additionally, Plaintiff provided sufficient evidence that showed that some of the cited cases settled in his monetary favor. This Court believes that if Defendants were willing to entertain a settlement with Plaintiff, that there was at least some merit or likelihood of success in Plaintiff's various claims, and that these claims were not frivolous, harassing, or for an improper purpose. Such cases do not demonstrate a malicious or vexatious intent of the Plaintiff. Nor does losing an action at the summary judgment phase, voluntarily dismissing an action, or having a habeas petition denied, demonstrate maliciousness or vexatiousness. As such, Defendants have failed to meet their burden in demonstrating that Plaintiff is a vexatious litigant.
Defendants assert that Plaintiff lacks a reasonable probability of success on the merits of his various claims. Defendants argue that: Plaintiff failed to properly exhaust an administrative remedy; Plaintiff failed to comply with the government tort claim requirements; Plaintiff's allegations do not amount to "threats, intimidation, or coercion" under the Bane Act; and Plaintiff is barred from bringing his claim based on the doctrine of res judicata. In regards to Plaintiff's claims relating to a leaking roof, Defendants additionally argue that Plaintiff has provided no evidence of deliberate indifference as to their leaking roof claim.
As part of their argument, Defendants allege that Plaintiff's claims regarding inadequate exercise time are barred by res judicata. Specifically, Defendants allege that on or around March 10, 2011, Plaintiff filed a Petition for Habeas Corpus in Kern County Superior Court alleging that, as of that date, he was receiving only two hours of exercise time every fourteen days. (RJN Ex. U.) The Court has reviewed Plaintiff's evidence and determined that the petition was denied on April 28, 2011 for failure to exhaust administrative remedies, not safety and security concerns. The Court notes that in the order denying Plaintiff's petition, the court stated that "[t]here is a caveat that safety and security measures take precedent" and that "[t]he need to ensure safety and security is paramount in secured or segregated housing." (RJN Ex. U.) This caveat is not the reason the petition was dismissed, however. The petition was dismissed because it was "procedurally defective since petitioner has failed to pursue and exhaust his administrative remedies, and has provided no evidence that he did so. Exhaustion of administrative remedies is a prerequisite to seeking habeas corpus relief." (RJN Ex. U.) As such, Defendants' res judicata argument as to Plaintiff's probability of success on the merits of his claims is unconvincing.
Notably, Defendants provide no argument or evidence that Plaintiff's underlying factual allegations about the condition of the prison are untrue. Defendants' argument regarding the success of this case on its merits relies on procedural or technical arguments. Some of those arguments have already been rejected in this order. Moreover, the Court has screened Plaintiff's complaint and found that the allegations, if true, would state a colorable constitutional claim.
In sum, the Court does not find Plaintiff's suit frivolous or without merit, but instead finds that Plaintiff's Complaint brings forth sufficient claims and supporting evidence to proceed to a disposition on the merits.
Based on the foregoing, the Court finds that Plaintiff's behavior does not constitute sufficient harassment, annoyance, and abusive litigation for the Court to declare him a vexatious litigant. Additionally, the Court finds that Defendants have failed to provide sufficient evidence that would support a finding that Plaintiff does not have a reasonable likelihood of success on the merits. As such, Defendants' motion for an order requiring security from a vexatious litigant shall be denied.
This Court recommends that Defendants are not entitled to summary judgment, as Plaintiff has provided sufficient evidence supporting a finding that Plaintiff has exhausted all administrative remedies, and has properly complied with all government tort claim actions. Additionally, this Court finds that Defendants have failed to provide evidence that Plaintiff's history of litigiousness amounts to a harassing, annoying, abusive or frivolous nature requiring a posting of security in order to proceed.
Accordingly,
1. Defendants' motion for summary judgment, filed on March 8, 2016, be DENIED; and
2. Defendants' motion for an order requiring security from a vexatious litigant, filed on March 8, 2016, be DENIED.
These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within
