1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 PETER GERARD WAHL, Case No. 1:16-cv-01576-LJO-BAM (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS

REGARDING DEFENDANT’S MOTION TO

13 v. DISMISS 14 SUTTON, (ECF No. 41) 15 Defendant. FOURTEEN (14) DAY DEADLINE 16 17 Findings and Recommendations 18 I. Introduction 19 Plaintiff Peter Gerard Wahl (“Plaintiff”) is a former state prisoner proceeding pro se and 20 in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds 21 on Plaintiff’s third amended complaint against Defendant Sutton (“Defendant”) for deliberate 22 indifference resulting from excessive custody, in violation of the Eighth Amendment. 23 On April 16, 2018, the Court dismissed this action for failure to state a claim. (ECF Nos. 24 25, 26.) Plaintiff appealed. On August 21, 2018, the Ninth Circuit affirmed in part, reversed in 25 part, and remanded the action for further proceedings. The Ninth Circuit found that Plaintiff’s 26 due process claim was properly dismissed, but that, liberally construed, the allegations in the third 27 amended complaint were sufficient to warrant ordering Defendant to file an answer with respect 28 to Plaintiff’s deliberate indifference claim. (ECF No. 34.) The Ninth Circuit issued its mandate 1 on September 12, 2018. (ECF No. 35.) The Ninth Circuit did not address the issues of absolute 2 or qualified immunity. 3 On November 14, 2018, Defendant filed a motion to dismiss pursuant to Federal Rule of 4 Civil Procedure 12(b)(6). By this motion, Defendant seeks to dismiss this action on the grounds 5 that the third amended complaint fails to state a claim because Defendant is protected by absolute 6 and qualified immunity. (ECF No. 41.) Plaintiff filed an opposition on January 11, 2019. (ECF 7 No. 45.) Defendant filed a reply on January 16, 2019. (ECF No. 46.) The motion is deemed 8 submitted. Local Rule 230(l). 9 For the reasons discussed below, the Court recommends that Defendant’s motion to 10 dismiss be granted. 11 II. Summary of Relevant Allegations in the Third Amended Complaint 12 Plaintiff, formerly confined at Wasco State Prison, brings suit against John Sutton, 13 Warden of Wasco State Prison (“WSP”). Plaintiff alleges that on August 18, 2016, he was 14 convicted for possession with intent to sell marijuana and sentenced to 16 months in prison. He 15 was transported to WSP in September 2016. 16 On November 30, 2016, the sentencing court ordered Plaintiff’s sentence reduced to a 17 misdemeanor with time deemed served. Plaintiff received a certified copy of the order with the 18 sentencing court’s seal on December 3, 2016. Plaintiff immediately began grievance processes 19 on December 4, 2016, and Defendant Sutton was “grieved as well.” (ECF No. 22, p. 4.) 20 Plaintiff learned, through post-release investigation, that the Clerk of Court did not notify 21 Defendant until 21 days after court-ordered release. Defendant continued to hold Plaintiff as a 22 state prisoner until December 29, 2016. Plaintiff alleges that he suffered severe psychological, 23 emotional, and physical distress as a result of his confinement. Plaintiff further alleges that 24 Defendant knew or reasonably should have known through the prior grievances that Plaintiff was 25 being held unlawfully, but Defendant took no steps to rectify the matter. Plaintiff alleges that 26 Defendant exhibited callous indifference to Plaintiff’s grievances. Plaintiff contends that the 27 classification department was overburdened and understaffed during this period. 28 Plaintiff seeks a declaratory judgment, along with damages. 1 III. Scope of Remand 2 Upon remand, the District Court must proceed on the terms of the Ninth Circuit’s 3 mandate. Stacy v. Colvin, 825 F.3d 563, 567–68 (9th Cir. 2016). The District Court may, 4 however, decide anything not foreclosed by the mandate, so long as the District Court does not 5 take actions that contradict it. Id. at 568; Firth v. United States, 554 F.2d 990, 993–94 (9th Cir. 6 1977) (“. . . a mandate is controlling as to all matters within its compass, while leaving any issue 7 not expressly or impliedly disposed of on appeal available for consideration by the trial court on 8 remand.”). Furthermore, while the “law of the case” doctrine limits district court reconsideration 9 of issues previously determined, the doctrine does not apply to issues or claims that were not 10 actually decided. Mortimer v. Baca, 594 F.3d 714, 720 (9th Cir. 2010); Odima v. Westin Tucson 11 Hotel, 53 F.3d 1484, 1497 (9th Cir. 1995). 12 As noted above, the Ninth Circuit’s remand order states that the allegations in the third 13 amended complaint “are sufficient to warrant ordering defendant to file an answer.” (ECF No. 14 34, p. 2.) Although the Ninth Circuit’s remand order refers to the filing of an answer, the Court 15 finds that this language does not foreclose the filing of Defendant’s motion to dismiss pursuant to 16 Federal Rule of Civil Procedure 12(b) on grounds not actually decided by the Ninth Circuit. 17 Therefore, the Court finds that consideration of Defendant’s motion to dismiss on the grounds of 18 absolute and qualified immunity is appropriate in the instant action. See Cassett v. Stewart, 406 19 F.3d 614, 621 (9th Cir. 2005) (district court is free to do anything not foreclosed by the mandate 20 or counter to the “spirit” of the circuit court’s decision) (quoting United States v. Kellington, 217 21 F.3d 1084, 1092–93 (9th Cir. 2000)). 22 IV. Defendant’s Motion to Dismiss 23 A. Legal Standards 24 A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a claim, and 25 dismissal is proper if there is a lack of a cognizable legal theory or the absence of sufficient facts 26 alleged under a cognizable legal theory. Conservation Force v. Salazar, 646 F.3d 1240, 1241–42 27 (9th Cir. 2011) (quotation marks and citations omitted). To survive a motion to dismiss, a 28 complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible 1 on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 2 550 U.S. 544, 555 (2007)) (quotation marks omitted); Conservation Force, 646 F.3d at 1242; 3 Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The Court must accept the well- 4 pled factual allegations as true and draw all reasonable inferences in favor of the non-moving 5 party. Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010); Sanders v. Brown, 6 504 F.3d 903, 910 (9th Cir. 2007); Huynh v. Chase Manhattan Bank, 465 F.3d 992, 996–97 (9th 7 Cir. 2006); Morales v. City of L.A., 214 F.3d 1151, 1153 (9th Cir. 2000). Further, prisoners 8 proceeding pro se in civil rights actions are entitled to have their pleadings liberally construed and 9 to have any doubt resolved in their favor. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) 10 (citations omitted). 11 1. Deliberate Indifference in Violation of the Eighth Amendment 12 A prisoner’s claim for damages resulting from excessive custody may support a legitimate 13 section 1983 claim. See Haygood v. Younger, 769 F.2d 1350, 1359 (9th Cir. 1985). “Detention 14 beyond the termination of a sentence could constitute cruel and unusual punishment [in violation 15 of the Eighth Amendment] if it is the result of ‘deliberate indifference’ to the prisoner’s liberty 16 interest; otherwise, such detention can be held to be unconstitutional only if it violates due 17 process.” Id. at 1354 (internal citations omitted). 18 2. Absolute Immunity 19 “Absolute immunity ‘is an extreme remedy, and it is justified only where any lesser 20 degree of immunity could impair the judicial process itself.’” Garmon v. Cty. of Los Angeles, 21 828 F.3d 837, 843 (9th Cir. 2016) (quoting Lacey v. Maricopa Cty., 693 F.3d 896, 912 (9th Cir. 22 2012) (en banc)). “The official seeking absolute immunity bears the burden of showing that such 23 immunity is justified for the function in question.’” Garmon, 828 F.3d at 843 (quoting Burns v. 24 Reed, 500 U.S. 478, 486 (1991)).

25 [T]he Supreme Court has emphasized [the] functional approach for determining 26 when public officials may claim absolute immunity under § 1983. An official must be “performing a duty functionally comparable to one for which officials 27 were rendered immune at common law,” and “it is only the specific function performed, and not the role or title of the official, that is the touchstone of 28 1 absolute immunity. 2 Engebretson v. Mahoney, 724 F.3d 1034, 1039 (9th Cir. 2013) (as amended). In Engebretson, the 3 Supreme Court held that “prison officials charged with executing facially valid court orders enjoy 4 absolute immunity from § 1983 liability for conduct prescribed by those orders.” Id. In contrast, 5 absolute immunity has not been extended to prison officials acting in non-judicial capacities, 6 acting outside his or her authority, or to those who failed to strictly comply with court orders. See 7 Procunier v. Navarette, 434 U.S. 555, 561 (1978); Garcia v. Cty. of Riverside, 817 F.3d 635, 644 8 (9th Cir.), cert. denied sub nom. Baca v. Garcia, 137 S. Ct. 344 (2016); Engebretson, 724 F.3d at 9 1038 n.2 (identifying cases where the court has declined to extend absolute immunity to judges 10 and prison, school, and executive officials). 11 3. Qualified Immunity 12 Qualified immunity protects “government officials . . . from liability for civil damages 13 insofar as their conduct does not violate clearly established statutory or constitutional rights of 14 which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). 15 When considering an assertion of qualified immunity, the court makes a two-pronged inquiry: 16 (1) whether the plaintiff has alleged the deprivation of an actual constitutional right and 17 (2) whether such right was clearly established at the time of defendant’s alleged misconduct. See 18 Pearson v. Callahan, 555 U.S. 223, 232 (2009) (quoting Saucier v. Katz, 535 U.S. 94, 201 19 (2001)). “Qualified immunity gives government officials breathing room to make reasonable but 20 mistaken judgments about open legal questions.” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011). 21 “For the second step in the qualified immunity analysis—whether the constitutional right 22 was clearly established at the time of the conduct—the critical question is whether the contours of 23 the right were ‘sufficiently clear’ that every ‘reasonable official would have understood that what 24 he is doing violates that right.’” Mattos v. Agarano, 661 F.3d 433, 442 (9th Cir. 2011) (quoting 25 al-Kidd, 563 U.S. at 741) (some internal marks omitted). “The plaintiff bears the burden to show 26 that the contours of the right were clearly established.” Clairmont v. Sound Mental Health, 632 27 F.3d 1091, 1109 (9th Cir. 2011). “[W]hether the law was clearly established must be undertaken 28 in light of the specific context of the case, not as a broad general proposition.” Estate of Ford, 1 301 F.3d at 1050 (citation and internal marks omitted). In making this determination, courts 2 consider the state of the law at the time of the alleged violation and the information possessed by 3 the official to determine whether a reasonable official in a particular factual situation should have 4 been on notice that his or her conduct was illegal. Inouye v. Kemna, 504 F.3d 705, 712 (9th Cir. 5 2007); see also Hope v. Pelzer, 536 U.S. 730, 741 (2002) (the “salient question” to the qualified 6 immunity analysis is whether the state of the law at the time gave “fair warning” to the officials 7 that their conduct was unconstitutional). “[W]here there is no case directly on point, ‘existing 8 precedent must have placed the statutory or constitutional question beyond debate.’” C.B. v. City 9 of Sonora, 769 F.3d 1005, 1026 (9th Cir. 2014) (citing al-Kidd, 563 U.S. at 740). An official’s 10 subjective beliefs are irrelevant. Inouye, 504 F.3d at 712. 11 B. Parties’ Positions 12 Defendant argues that he is absolutely immune for incarcerating Plaintiff up to December 13 21, 2016, because he was enforcing a facially valid court order that sentenced Plaintiff to sixteen 14 months in state prison. Although Plaintiff was resentenced by the superior court on November 15 30, 2016, the resentencing order was not faxed to CDCR until December 21, 2016. Defendant 16 argues that there are no allegations that show he received and reviewed Plaintiff’s December 4, 17 2016 grievance before Plaintiff was released from prison, or that the grievance provided 18 Defendant with any documentary evidence of Plaintiff’s resentencing. Thus, until the court clerk 19 sent an official copy of the resentencing order to CDCR, Defendant had a legal duty to continue 20 enforcing the original judgment in Plaintiff’s institutional file. 21 Alternatively, Defendant argues that he is entitled to qualified immunity because Plaintiff 22 has failed to allege that Defendant subjectively knew about Plaintiff’s over-detention or that 23 Defendant acted with deliberate indifference. Once CDCR received the resentencing order from 24 the court clerk, Plaintiff was processed and released in a timely manner pursuant to state law. 25 Moreover, even if the Court finds that Plaintiff has stated a claim for Eighth Amendment 26 deliberate indifference against Defendant, Defendant did not violate a clearly established 27 constitutional right. 28 /// 1 In his opposition, Plaintiff argues that Defendant’s statement that there are no allegations 2 that show Defendant knew about Plaintiff’s over-detention until after the superior court sent the 3 resentencing order on December 21, 2016, directly contradict Defendant’s admission that Plaintiff 4 filed grievances on December 4, 2016. Plaintiff appears to clarify that he did not attach the 5 superior court’s order to his grievance, stating that he could not relinquish his original. Plaintiff 6 reiterates that he sought to present the court order to any authority but received no responses or 7 audiences until December 28, and he was released on December 29. Plaintiff further argues that 8 the fact that he filed “every possible grievance to every known authority both internally an 9 externally without responses conveys that the Defendant knew or should have known that he no 10 longer had proper jurisdiction of plaintiff and he was being held unlawfully; and, [plaintiff] 11 suffered dearly.” (ECF No. 45, p. 4.) 12 In reply, Defendant argues that Plaintiff’s opposition fails to address the two main issues 13 of absolute and qualified immunity, which should be construed as a waiver or abandonment of the 14 issue, warranting dismissal of Plaintiff’s claims against Defendant. Defendant further argues that, 15 to state a claim for deliberate indifference under the Eighth Amendment, Plaintiff must allege 16 facts that show Defendant subjectively knew about Plaintiff’s over-detention, rather than merely 17 alleging that Defendant knew or should have known about Plaintiff’s over-detention as a result of 18 the grievances Plaintiff filed. Finally, Defendant contends that Plaintiff’s reliance on Haygood v. 19 Younger, 769 F.2d 1350 (9th Cir. 1985), is misplaced, as that line of cases dealt with situations 20 where prison officials responsible for calculating a prisoner’s sentence had failed to investigate 21 whether they had miscalculated the prisoner’s release date, whereas Defendant had a legal duty to 22 continue enforcing the original judgment until the prison received the superior court’s 23 resentencing order. 24 C. Discussion 25 First, the Court declines to dismiss Plaintiff’s claims against Defendant on the ground that 26 Plaintiff’s failure to address Defendant’s absolute or qualified immunity arguments should be 27 construed as a waiver or abandonment of those issues. Though Defendant has cited various 28 authorities in support of this argument, it appears to the Court that the parties in those actions 1 were all represented by counsel, rather than proceeding pro se. (See ECF No. 46, p. 3, citing 2 cases.) Given the Court’s duty to liberally construe pro se pleadings, Wilhelm v. Rotman, 680 3 F.3d 1113, 1116 (9th Cir. 2012), the Court will address Defendant’s motion to dismiss on the 4 merits. 5 1. Absolute Immunity 6 Absolute immunity is an extreme remedy, and prison officials charged with executing 7 facially valid court orders only enjoy absolute immunity for conduct prescribed by those orders. 8 Engebretson, 724 F.3d at 1039. Defendant argues that the superior court’s original sentencing 9 order was facially valid until the resentencing order was faxed to CDCR on December 21, 2016, 10 and he had a legal duty to continue enforcing the original judgment already in Plaintiff’s 11 institutional file until an official copy was received from the court clerk. Defendant further 12 contends that Plaintiff fails to allege that Defendant received and reviewed Plaintiff’s December 13 4, 2016 grievance before Plaintiff’s release from prison, or that the grievance provided Defendant 14 with any documentary evidence about Plaintiff’s resentencing. 15 However, liberally construing Plaintiff’s pro se pleadings, the Ninth Circuit found that 16 Plaintiff’s allegations were sufficient to show that Defendant was informed of the reduced 17 sentence through the grievance process and then failed to intervene. (See ECF No. 34, p.2.) Thus, 18 at the pleading stage, Defendant was on notice of Plaintiff’s resentencing. Defendant then failed 19 to act on that resentencing information. This challenged conduct goes beyond mere continued 20 enforcement of the original judgment. Thus, an absolute immunity analysis would be 21 inappropriate under these circumstances. 22 2. Qualified Immunity 23 The undersigned need not determine whether Plaintiff has stated a cognizable claim under 24 the Eighth Amendment. Rather, the Court finds that, viewed in the requisite case-specific 25 context, Defendant did not violate a clearly established constitutional right and is entitled to 26 qualified immunity. Because the Court finds that the second prong of the qualified immunity 27 analysis is not satisfied, it need not reach the first. See Pearson, 555 U.S. at 236. 28 /// 1 Existing case law does not clearly establish whether prison officials have a duty to 2 investigate a prisoner’s court records beyond those in the prisoner’s institutional file, where 3 prison officials are enforcing a facially valid court order and are not responsible for calculating a 4 prisoner’s sentence. See Rivera v. County of Los Angeles, 745 F.3d 384, 393 (9th Cir. 2014) (“If 5 a suspect is held according to court order, county officials are not required to investigate whether 6 that court order is proper.”); Alston v. Read, 663 F.3d 1094, 1099–1100 (9th Cir. 2011) (prison 7 officials entitled to rely on state statute and original judgment received from court and were not 8 required to go in search of additional courthouse records that might affect prisoner’s sentence 9 beyond what was initially received from the court for inclusion in institutional file); Stein v. 10 Ryan, 662 F.3d 1114, 1117 (9th Cir. 2011) (“Prison officials may properly assume that they have 11 the authority to execute the sentencing orders delivered to them by the court without fear of civil 12 liability.”). In Stein, the Ninth Circuit further found that although prison officials had a duty to 13 execute sentencing orders delivered by the courts, and to calculate accurately the prisoner’s 14 release date according to the terms of the sentencing order, no reasonable prison official would 15 understand that executing a court order without investigating its potential illegality would violate 16 the prisoner’s right to be free from cruel and unusual punishment. Stein, 662 F.3d at 1120–21. 17 The law provides even less clarity where, as here, prison officials have received some 18 form of notice through prison grievance forms, but they have not yet received an official—or 19 unofficial—copy of the court’s resentencing order. Compare Alston, 663 F.3d at 1099 (prison 20 officials entitled to qualified immunity where prisoner referred only to prior judgment already in 21 his institutional file) with Alexander v. Perrill, 916 F.2d 1392, 1399 (9th Cir. 1990) (affirming 22 district court’s denial of qualified immunity defense where prisoner offered “verified court 23 documents and other proof” in support of his over-detention claim). The allegations in Plaintiff’s 24 third amended complaint indicate only that he filed numerous grievances, that “[n]obody came to 25 look at court order; or, even to contact clerk to provide certified copy thereof,” and confirm that 26 the court clerk did not provide the prison authorities with the court order until December 21, 27 2016. (ECF No. 22, pp. 6–7.) Plaintiff’s opposition to the motion to dismiss further indicates 28 that Plaintiff had the original copy of the court’s resentencing order, which he could not 1 relinquish, (ECF No. 45, p. 1), but Plaintiff fails to allege that he ever provided even an unofficial 2 copy of the resentencing order as an attachment to any of the grievances filed. In addition, 3 Plaintiff’s allegations in the third amended complaint appear to confirm that Defendant did not 4 ever personally view the original or a copy of the resentencing order. 5 Because existing case law does not clearly establish whether prison officials have a duty 6 to review a prisoner’s court records beyond those in his institutional file, and based on the facts of 7 this case, the Court is persuaded that Defendant is entitled to qualified immunity. 8 V. Conclusion and Recommendation 9 Accordingly, IT IS HEREBY RECOMMENDED that Defendant’s motion to dismiss 10 (ECF No. 41), be GRANTED on the ground that Defendant is entitled to qualified immunity. 11 These Findings and Recommendations will be submitted to the United States District 12 Judge assigned to the case, under 28 U.S.C. § 636(b)(l). Within fourteen (14) days after being 13 served with these Findings and Recommendations, the parties may file written objections with the 14 Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 15 Recommendations.” The parties are advised that failure to file objections within the specified 16 time may result in the waiver of the “right to challenge the magistrate’s factual findings” on 17 appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 18 F.2d 1391, 1394 (9th Cir. 1991)). 19

IT IS SO ORDERED.

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21 Dated: September 4, 2019 /s/ Barbara A. McAuliffe _

UNITED STATES MAGISTRATE JUDGE

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