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CONSTITUTIONAL LAWJOHNSON v. STATE OF CALIFORNIA (3/21/00 - No. 9855302)
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| FindLaw: Laws: Cases and Codes: 9TH CIRCUIT COURT Opinions | |
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GARRISON S. JOHNSON, Petitioner-Appellant, No. 98-55302 v. D.C. No. STATE OF CALIFORNIA; JAMES H. CV-95-01192-KMW GOMEZ, Director, Department of OPINION Corrections; JAMES ROWLAND, Respondents-Appellees.
Appeal from the United States District Court
for the Central District of California
Kim M. Wardlaw, District Judge, Presiding
Submitted October 8, 19991
Pasadena, California
Filed March 21, 2000
Before: Betty B. Fletcher, Dorothy W. Nelson, and
Melvin Brunetti, Circuit Judges.
Per Curiam Opinion
prisoner's complaint alleging intentional segregation of pris-
oners by race without valid penological purpose is sufficient
to state a constitutional claim.
Appellant Garrison Johnson, a California prisoner, filed a
pro se complaint against appellee California Department of
Corrections (CDC), alleging that CDC violated his constitu-
tional rights by segregating inmates according to race and
extorting money from inmates by overcharging for telephone
use.
Johnson claimed that a policy of racial segregation in hous-
ing had been enforced throughout the prison system for over
a decade; that successive wardens were aware of the deleteri-
ous effects of race-based housing; that the practice served no
legitimate penological purpose; and that the practice violated
a 1994 court order to house inmates in a race-neutral manner.
Regarding his overcharging claim, Johnson asserted that
the defendants conspired with telephone companies to over-
charge inmates in exchange for "kickbacks."
A magistrate judge (MJ) determined that Johnson failed to
state a claim on which relief could be granted. The district
court adopted the MJ's recommendation and dismissed the
action with prejudice. Johnson appealed.
[1] Prisoners are protected under the Equal Protection
Clause of the Fourteenth Amendment from invidious discrim-
ination based on race. Racial segregation is unconstitutional
within prisons, save for the necessities of security and disci-
pline.
[2] Johnson's allegations were sufficient to state a claim for
racial discrimination in violation of the Equal Protection
Clause. The district court erred in dismissing this aspect of
Johnson's complaint.
[3] The district court also erred in dismissing Johnson's
conspiracy claim. The complaint contained more than a bare
allegation of conspiracy, and additional supporting facts
might be discovered as Johnson proceeded with discovery.
Johnson also might have been able to state a claim for viola-
tion of his Eighth Amendment rights insofar as his personal
safety was jeopardized by the policy of racial segregation.
[4] Johnson's due process claims were properly dismissed
with prejudice. Because the Equal Protection Clause covered
the actions challenged in the complaint, Johnson could not
proceed on a substantive due process theory. Nor is a proce-
dural due process claim cognizable when an unconstitutional
policy (segregated inmate housing), rather than the procedure
that leads to it, is challenged.
[5] Although prisoners have a First Amendment right to
telephone access, this right is subject to reasonable limitations
arising from legitimate penological and administrative inter-
ests of the prison system. There is no authority for the propo-
sition that prisoners are entitled to a specific rate for telephone
calls, and the complaint alleged no facts from which one
could conclude that the rate charged was so exorbitant as to
deprive prisoners of telephone access altogether. Moreover,
Johnson's conspiracy allegations were vague and conclusory.
The district court properly dismissed this aspect of the com-
plaint with prejudice.
_________________________________________________________________
COUNSEL
Garrison S. Johnson, Lancaster, California, in pro se, for the
petitioner-appellant.
B Sara Turner, Deputy Attorney General, San Francisco, Cali-
fornia, Barbara C. Spiegel, San Diego, California, for the
respondents-appellees James H. Gomez and James Rowland.
_________________________________________________________________
OPINION
PER CURIAM:
Appellant, Garrison Johnson, is a prisoner incarcerated in
the State of California. He filed the instant suit claiming that
the California Department of Corrections ("CDC") violated
his constitutional rights by segregating inmates according to
race and extorting money from inmates by overcharging for
telephone use. This is an appeal from the district court's order
granting the State's motion to dismiss on grounds that the
action is time-barred and otherwise fails to state a claim.
I. FACTS AND PROCEDURAL HISTORY
Garrison Johnson filed the instant suit pro se, asserting
causes of action under 42 U.S.C. SS 1981, 1983, 1985, and
1986. Johnson's primary allegations are (1) that between 1987
and 1991, the former Director of the Department of Correc-
tions, James Rowland, instituted and enforced a policy of
housing inmates according to race, and (2) that warden Row-
land was engaged in a conspiracy to extort money from
inmates through charges for telephone calls. The same allega-
tions are made against the current Director, James Gomez, for
the period covering 1991 to the present. Johnson contends that
these actions violated his right to due process under the Fifth
Amendment, his right to be free from cruel and unusual pun-
ishment under the Eighth Amendment, and his right to due
process and equal protection of the laws under the Fourteenth
Amendment. He seeks damages and declaratory relief.
Johnson filed his original complaint on February 24, 1995.
After a series of amendments in response to motions to dis-
miss, Johnson filed a Third Amended Complaint. The State
again moved to dismiss under Rule 12(b)(6) of the Federal
Rules of Civil Procedure and the district court adopted a
report and recommendation from the magistrate judge dis-
missing the case with prejudice. We have jurisdiction pursu-
ant to 28 U.S.C. S 1291. We reverse in part and affirm in part.
II. STANDARD OF REVIEW
Dismissal under Rule 12(b)(6) of the Federal Rules of Civil
Procedure is reviewed de novo. See Steckman v. Hart Brew-
ing, Inc., 143 F.3d 1293, 1295 (9th Cir. 1998). All factual
allegations of the complaint are accepted as true and all rea-
sonable inferences must be drawn in favor of the nonmoving
party. See id.; Usher v. City of Los Angeles, 828 F.2d 556, 561
(9th Cir. 1987). Moreover, "[t]he Supreme Court has
instructed the federal courts to liberally construe the `inartful
pleading' of pro se litigants," Eldridge v. Block, 832 F.2d
1132, 1137 (9th Cir. 1987) (citing Boag v. MacDougall, 454
U.S. 364, 365 (1982)), and we have emphasized that the rule
of liberal construction is "particularly important in civil rights
cases." Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir.
1992) (citing Eldridge, 832 F.2d at 1137).
Dismissal on statute of limitations grounds is a question of
law reviewed de novo. See Hernandez v. City of El Monte,
138 F.3d 393, 398 (9th Cir. 1998).
III. DISCUSSION
A. Statute of Limitations
Because S 1983 does not contain a statute of limitations,
federal courts apply the forum state's statute of limitations for
personal injury claims. See Wilson v. Garcia,
471 U.S. 261
,
276 (1985). In California, the applicable statute of limitations
is one year. See Elliott v. City of Union City , 25 F.3d 800, 802
(9th Cir. 1994); Cal. Civ. Proc. Code S 340(3).2
When not inconsistent with federal law, we also apply the
law of the forum state regarding tolling. See Hardin v. Straub,
490 U.S. 536
, 537-39, 543 (1989); Bacon v. City of Los
Angeles, 843 F.2d 372, 374 (9th Cir. 1988). However, federal
law controls the question of when a claim accrues. See Elliott,
25 F.3d at 801-02. Under federal law, a claim accrues when
the plaintiff knows, or should know, of the injury which is the
basis of the cause of action. See Kimes v. Stone , 84 F.3d 1121,
1128 (9th Cir. 1996).
Prior to the enactment of S 352.1(a) of the California Code
of Civil Procedure on January 1, 1995, prisoners serving less
than a life sentence could toll claims for their entire sentence.
See Elliott, 25 F.3d at 802. Under S 352.1(a), however, the
tolling period is limited to two years. The report and recom-
mendation ("R & R") of the magistrate judge held that all
claims in the complaint against former warden Rowland are
time-barred. He reasoned that Johnson's causes of action
accrued at least by 1991, and that even with the two year toll-
ing provision for prisoners in Cal. Civ. Proc. CodeS 352.1(a)
added to the one year statute of limitations, his claims were
time barred in 1994.
The district court failed to consider whether S 352.1(a) can
be applied retroactively to plaintiffs whose causes of action
accrued before January 1995. In Fink v. Shedler , 192 F.3d 911
(9th Cir. 1999), the Ninth Circuit answered this retroactivity
question. After considering an analogous issue under Arizona
law raised in TwoRivers v. Lewis, 174 F.3d 987, 993 (9th Cir.
1999), as well as the implications of giving S 352.1(a) either
complete retroactive or exclusively prospective effect, the
court adopted a middle course. We held that "claims . . . that
accrued before January 1, 1995 are tolled for two years from
accrual, or until January 1, 1995, whichever occurs later, as
long as such an application does not result in manifest
injustice." Fink, 192 F.3d at 916 (emphasis added) (citing
TwoRivers, 174 F.3d at 995-96; Parker, 975 F. Supp. at
1272). Under the rule in Fink, Johnson's claims against war-
den Rowland are timely since they are tolled until January 1,
1995, and he filed suit on February 24, 1995, well within the
one year statute of limitations.3
B. Merits
As to both warden Rowland and warden Gomez, the R & R
concluded that Johnson failed to state a claim upon which
relief could be granted. More specifically, the magistrate
judge found that the complaint impermissibly relied on con-
clusory allegations despite three opportunities to amend, guid-
ance from the court as to what must be alleged, and specific
admonitions regarding the heightened pleading standard set
forth in Branch v. Tunnell for constitutional torts involving an
element of intent. See Branch, 14 F.3d 449, 452, 455-56 (9th
Cir. 1994) (holding that plaintiffs " `must state in their com-
plaint nonconclusory allegations setting forth evidence of
unlawful intent. The allegations of facts must be specific and
concrete enough to enable the defendants to prepare a
response, and where appropriate, a motion for summary judg-
ment based on qualified immunity.' ") (quoting and reaffirm-
ing Branch v. Tunnell, 937 F.2d 1382, 1386 (9th Cir. 1991)).
The State urges that we affirm on the same grounds.
1. Racial discrimination
[1] According to well established precedent, "[p]risoners
are protected under the Equal Protection Clause of the Four-
teenth Amendment from invidious discrimination based on
race." Wolff v. McDonnell,
418 U.S. 539, 556
(1974) (citing
Lee v. Washington,
390 U.S. 333
(1968)); see also Turner v.
Safley,
482 U.S. 78, 84
(1987) (noting that "federal courts
must take cognizance of the valid constitutional claims of
prison inmates. Prison walls do not form a barrier separating
prison inmates from the protections of the Constitution.").
More specifically, "racial segregation, which is unconstitu-
tional outside prisons, is unconstitutional within prisons, save
for `the necessities of prison security and discipline.' " Cruz
v. Beto,
405 U.S. 319, 321
(1972) (per curiam) (quoting Lee,
390 U.S. at 334
).
[2] Johnson's Third Amended Complaint makes the follow-
ing allegations in support of the claim that Rowland and
Gomez enforced a policy of racial segregation in inmate hous-
ing:
(1) that the wardens confined Johnson to a two-man
cell "upon the basis of his skin color," and that this
caused him to be subjected to racial assault by other
inmates;
(2) that Rowland and Gomez authorized the war-
dens of other California prisons to segregate inmate
housing according to race, ("segregatively confining
`Blacks' in a two-man cell only therefore, prohibit-
ing Black inmates from being `celled' with `White'
or `Mexican' inmates");
(3) that this housing segregation policy was not
related to a legitimate penological interest and
caused racial tension and riots among different eth-
nic groups;
(4) that Rowland and Gomez were aware that
racially dividing inmates "breed[s] enmity and racial
tension," but have an interest in enforcing the segre-
gation policy "because prison officials are paid
higher wages during a racial crisis that involve[s]
inmates rioting"; and
(5) that the wardens have failed to institute proce-
dures to eradicate the policy, despite a 1994 "federal
order to stop housing inmates based on their color or
ethnicity; but rather place them in the first available
cell."
Although inartfully stated, these allegations are sufficient to
state a claim for racial discrimination in violation of the Equal
Protection Clause of the Fourteenth Amendment. Johnson in
essence alleges that a policy of racial segregation in housing
has been enforced on him and other inmates throughout the
prison system for over a decade. He alleges that the wardens
are aware of the deleterious effects of race-based housing, that
the practice serves no legitimate penological purpose, and that
the practice persists despite a court order in 1994 to house
inmates in a race-neutral manner. He even identifies a poten-
tial motive for the segregation policy. The district court erred
in dismissing this aspect of Johnson's complaint.
[3] The district court also erred in dismissing Johnson's
S 1985(3) conspiracy claim with prejudice. Although "[a]
mere allegation of conspiracy without factual specificity is
insufficient," Karim-Panahi v. Los Angeles Police Dep't, 839
F.2d 621, 626 (9th Cir. 1988), the complaint here contains
more than a bare allegation of conspiracy, and additional facts
in support of the alleged conspiracy may develop as Johnson
proceeds with discovery on his equal protection claim. With
leave to amend, Johnson may also be able to state a claim for
violation of his Eighth Amendment rights insofar as his per-
sonal safety has been jeopardized by defendants' policy of
racial segregation. See Helling v. McKinney,
509 U.S. 25
, 31
(1993) ("the treatment a prisoner receives and the conditions
under which he is confined are subject to scrutiny under the
Eighth Amendment"); Toussaint v. McCarthy, 801 F.2d 1080,
1107 (9th Cir. 1986) (prison officials must provide prisoners
with "personal safety" since it is a "basic human need");
Hoptowit v. Ray, 682 F.2d 1237, 1250 (9th Cir. 1982)
("Prison officials have a duty to take reasonable steps to pro-
tect inmates from physical abuse"; holding that excessive
level of violence among inmates constitutes cruel and unusual
punishment) (citing Ramos v. Lamm, 639 F.2d 559, 572 (10th
Cir. 1980)).
[4] However, Johnson's due process claims were properly
dismissed with prejudice. Because the Equal Protection
Clause covers the actions challenged in the complaint, John-
son may not proceed on a substantive due process theory. See
Patel v. Penman, 103 F.3d 868, 874 (9th Cir. 1996). Nor is
a procedural due process claim cognizable where the exis-
tence of an unconstitutional policy (segregated inmate hous-
ing), rather than the procedure which leads to it, is challenged.
2. Overcharging for Telephone Use
Johnson alleges that Respondents conspired with telephone
companies to overcharge inmates in exchange for
"kickbacks." He claims that a comparison of phone bills
reveals that "phone calls plaintiff made to [friends and family
members] cost them . . . more than a non-incarcerated person
who made a call from the same area where plaintiff is
incarcerated." As a result of the overcharging, he claims that
his mother's phone service was canceled and she now has a
mandatory "block" on the phone preventing her from making
calls to the prison.
[5] Although prisoners have a First Amendment right to
telephone access, this right is subject to reasonable limitations
arising from the legitimate penological and administrative
interests of the prison system. See Strandberg v. City of
Helena, 791 F.2d 744, 747 (9th Cir. 1986). There is no
authority for the proposition that prisoners are entitled to a
specific rate for their telephone calls and the complaint
alleges no facts from which one could conclude that the rate
charged is so exorbitant as to deprive prisoners of phone
access altogether. Instead, Johnson admits in the complaint
that his mother lost phone service in large measure because of
a failure to pay the charges for high frequency use, not just
rates for prison calls. Moreover, Johnson's conspiracy allega-
tions are quintessentially vague and conclusory. The district
court properly dismissed this aspect of the complaint with
prejudice.
IV. APPOINTMENT OF COUNSEL
Although Johnson's complaint states cognizable claims,
clarity and legal precision are wanting. The case will undoubt-
edly proceed more efficiently and effectively if Johnson has
legal representation. Accordingly, on remand the district court
shall request the appointment of pro bono counsel pursuant to
28 U.S.C. S 1915(a).
V. CONCLUSION
The judgment of the district court is affirmed in part and
reversed in part. On remand, Johnson shall be granted leave
to amend his complaint following the appointment of counsel.
AFFIRMED IN PART AND REVERSED IN PART. Each
party shall bear their own costs.
_______________________________________________________________
FOOTNOTES
1 The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a); 9th Cir. R. 34-4.
2 A one year statute of limitations also applies to actions under 42 U.S.C.
SS 1981, 1985 and 1986. See Taylor v. Regents of the Univ. of California,
993 F.2d 710, 711-12 (9th Cir. 1993); McDougal v. County of Imperial,
942 F.2d 668, 673-74 (9th Cir. 1991).
3 Although state tolling rules do not apply to Johnson's S 1986 claim,
see Donoghue v. County of Orange, 848 F.2d 926, 930 n.3 (9th Cir. 1988),
the federal equitable tolling doctrine may. See Ellis v. City of San Diego,
176 F.3d 1183, 1189 n.3 (9th Cir. 1999). On remand, Johnson should be
given the opportunity to allege when he became aware of the facts sup-
porting his S 1985 conspiracy claim. See infra, section III.B.1. This will
permit the district court to determine whether theS 1986 claim is saved
under the equitable tolling doctrine.
In his opposition to warden Rowland's motion to dismiss, Johnson
states that "Rowland misrepresented the issue of racial segregational hous-
ing by misleading plaintiff to believe that he did not have a constitutional
right not to be segregated and plaintiff did not discover the misrepresenta-
tion until 1994." Assuming the complaint is amended on remand to incor-
porate this allegation, the district court should also consider whether the
doctrine of equitable estoppel applies. See Glus v. Brooklyn Eastern
Terminal,
359 U.S. 231
(1959) (defendant may be estopped from asserting
statute of limitations where plaintiff's delay in filing was caused by reli-
ance on defendant's misrepresentations as to governing law), cited and
followed in, American Pipe & Constr. Co. v. Utah,
414 U.S. 538
, 559
(1974).
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