Toscano v. Ramos

Opinion

1 2 3 4 5 6 7 8 9 10 11 UNITED STATES DISTRICT COURT 12 SOUTHERN DISTRICT OF CALIFORNIA 13 14 ADRIAN TOSCANO, Case No.: 22-cv-0321-CAB-BGS 15 Plaintiff, ORDER (1) ADOPTING IN PART 16 v. AND REJECTING IN PART REPORT AND 17 SERGEANT RAMOS, RECOMMENDATION; and (2) 18 Defendant. DISMISSING CASE WITH LEAVE TO AMEND 19 20 [Doc. Nos. 10, 14]

21 Plaintiff Adrian Toscano (“Plaintiff”), a state prisoner proceeding pro se and in 22 forma pauperis, filed his Complaint on March 7, 2022, alleging Defendant Sergeant Ramos 23 and F. Guzman violated his rights under 42 U.S.C. § 1983. [Doc. No. 1]. On May 10, 2022, 24 this Court issued an order granting Plaintiff’s request to proceed in forma pauperis and 25 dismissing claims against Defendant F. Guzman. [Doc. No. 5]. On August 30, 2022, 26 Defendant Ramos filed a motion to dismiss Plaintiff’s complaint and requested the Court 27 28 1 to take judicial notice of certain California state court records. [Doc. No. 10]. Plaintiff 2 filed an opposition to Defendant’s motion to dismiss on September 29, 2022. [Doc. No. 3 12]. Defendant filed a reply to Plaintiff’s opposition on October 14, 2022. [Doc. No. 13]. 4 On January 12, 2023, Magistrate Judge Bernard G. Skomal issued a Report and 5 Recommendation Granting Defendant’s Motion to Dismiss (the “Report”). [Doc. No. 14]. 6 On February 2, 2023, Plaintiff filed an Objection to the Report. [Doc. No. 15]. On February 7 23, 2023, Defendant filed a reply to Plaintiff’s Objection. [Doc. No. 16]. Plaintiff filed a 8 response to Defendant’s reply on March 23, 2023. [Doc. No. 17]. Having reviewed the 9 matter de novo and for the reasons that follow, the Report is ADOPTED IN PART and 10 the motion to dismiss is GRANTED. 11 I. REVIEW OF REPORT AND RECOMMENDATION2 12 The duties of the district court in connection with the report and recommendation of 13 a magistrate judge are set forth in Federal Rules of Civil Procedure 72(b) and 28 U.S.C. § 14 636(b). The district judge must “make a de novo determination of those portions of the 15 report . . . to which objection is made,” and “may accept, reject, or modify, in whole or in 16 part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b). 17 The district court need not review de novo those portions of a report and recommendation 18 to which neither party objects. See Wang v. Masaitis, 416 F. 3d 992, n.13 (9th Cir. 2005); 19 U.S. v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir. 2003) (en banc). 20 Plaintiff claims Defendant deprived him of his First Amendment right to access the 21 courts when his pro se supplemental brief for appeal was allegedly confiscated and the 22 confiscation caused him to miss the filing deadline. Defendant argues this case should be 23 dismissed because: (1) Plaintiff’s brief was frivolous and therefore he did not suffer an 24 “actual injury”; (2) Plaintiff has failed to demonstrate Defendant was personally involved 25 26 1 Defendant’s request for judicial notice [Doc. No. 10-1] is GRANTED. 27 2 The Report accurately sets forth the Background and Legal Standards for this motion to dismiss, and 28 1 in the confiscation of his brief; and (3) Plaintiff’s rights were not violated because his brief 2 was past-due when Defendant notified Plaintiff of the confiscation. 3 Magistrate Judge Skomal recommends that the motion to dismiss should be granted 4 on all three grounds identified by Defendant. Plaintiff appears to broadly object to the 5 entirety of the Report, but his analysis focuses on the Report’s characterization of the facts 6 surrounding the confiscation of his documents. [Doc. No. 15]. In his objection, he claims 7 Defendant “admitted to the confiscating of Plaintiff’s legal mail,” which is a 8 characterization not included in the Complaint. [Doc. No. 15 at 6]. In his surreply, Plaintiff 9 alleges Defendant was personally involved in the confiscation of his documents because 10 Defendant oversees the area in which Plaintiff resides. [Doc. No. 17 at 2]. Upon review of 11 the record, the Court finds the factual background in the Report is an accurate 12 representation of the allegations in the Complaint, and therefore REJECTS Plaintiff’s 13 objection. 14 II. DISCUSSION 15 A. Dismissal Based on “Actual Injury” 16 The Report contends Plaintiff suffered no actual injury because the supplemental 17 brief he attempted to file with the Court of Appeal was frivolous. Specifically, the Report 18 concludes Plaintiff’s brief was frivolous because a Wende brief was filed, and the Court of 19 Appeal found no grounds for relief. 3 The Report held that there is no federal right to file a 20 pro se supplemental brief. This Court finds that is not a basis for dismissal due to Ninth 21 Circuit precedent on the issue. 22 In Hebbe v. Pliler, 627 F.3d 228 (9th Cir. 2010), a plaintiff prisoner was prevented 23 from using the prison’s law library to write his pro se supplemental brief in response to his 24 former attorney’s Wende brief. The California Court of Appeal, upon an independent 25 26 27 3 A Wende brief is filed by appellate counsel when he finds no legitimate issues for appeal. See People v. Wende, 25 Cal.3d 436 (1979). If a Wende brief is filed, a court of appeal will allow a criminal defendant 28 1 review of the record, found that the plaintiff in Hebbe would have no relief and dismissed 2 his case before he was able to file his brief. See Brief for Appellee at 22, Hebbe v. Pliler, 3 627 F.3d 228 (9th Cir. 2010) (No. 07-17265), 2008 WL 1723081. The Ninth Circuit found 4 that the plaintiff in Hebbe “wished simply to appeal his conviction, as was his fundamental 5 right.” Hebbe, 627 F.3d at 343. The filing of the Wende brief did not “necessarily 6 demonstrate that there were no nonfrivolous claims that [the plaintiff] might raise on 7 appeal.” Id. 8 In similar circumstances as those presented in Hebbe, Plaintiff’s appeal was denied 9 after his counsel filed a Wende brief and the Court of Appeal conducted an independent 10 review of the record. Just as the plaintiff in Hebbe argued frustration of his ability to file 11 his pro se supplemental brief due to lack of access to the law library, Plaintiff alleges he 12 was frustrated in his efforts of appeal when his pro se supplemental brief was confiscated 13 by prison officials. In line with Ninth Circuit precedent, the Court does not find Plaintiff’s 14 underlying claim is frivolous merely because his attorney filed a Wende brief and the Court 15 of Appeal found no relief. As such, the Court REJECTS this analysis of the Report [Doc. 16 No. 14 at 10-13] and the motion to dismiss as to this issue is DENIED. 17 B. Dismissal Based on Failure to Allege Defendant’s Personal Participation in 18 the Confiscation of the Brief 19 The Report recommends this case should be dismissed because Plaintiff fails to 20 allege facts indicating Defendant personally participated in the confiscation of his brief. 21 Upon review of the record, the Court cannot ascertain the factual circumstances 22 surrounding the confiscation of Plaintiff’s supplemental brief. The complaint is vague as 23 to the specifics of how, when, and where his materials were confiscated. Plaintiff has not 24 sufficiently alleged facts indicating Defendant personally participated in the confiscation 25 of his brief in violation of Plaintiff’s First Amendment right to access the courts. 26 Accordingly, the Court ADOPTS the Report’s section on Plaintiff’s failure to state a claim 27 against the Defendant [Doc. No. 14 at 13-15] and GRANTS Defendant’s motion to dismiss 28 on that ground with leave to amend. 1 C. Dismissal Based on Timeliness 2 The Report recommends this case should be dismissed because Plaintiff has failed 3 ||to allege Defendant participated in the confiscation of his brief prior to the deadline 4 ||imposed by the Court of Appeal. The Court agrees, and hereby ADOPTS the Report’s 5 || section on timeliness [Doc. No. 14 at 15-16]. Defendant’s motion to dismiss on that ground 6 |}is GRANTED with leave to amend. 7 8 I. CONCLUSION 9 The Court has conducted a de novo review of the Report and hereby ORDERS that: 10 1. The Report is ADOPTED IN PART. 11 2. Plaintiffs objection is REJECTED. 12 3. The motion to dismiss based on “actual injury” is DENIED based on the 13 Ninth Circuit’s decision in Hebbe. 14 4. The motion to dismiss based on Plaintiffs failure to allege Defendant 15 personally participated in the violation of his rights is GRANTED with 16 leave to amend. 17 5. The motion to dismiss based on timeliness is GRANTED with leave to 18 amend. 19 6. Plaintiff has until May 5, 2023 to file an amended complaint, complete in 20 itself, addressing the issues identified above. If no amended complaint is 21 filed by May 5, 2023, the Clerk of Court shall CLOSE this case. 22 23 It is SO ORDERED. 24 25 ||Dated: March 30, 2023 € 26 Hon. Cathy Ann Bencivengo 27 United States District Judge 28