Head v. Cnty. of Sacramento

CHARLES HEAD, Plaintiff, v. COUNTY OF SACRAMENTO, et al., Defendants.

No. 2: 19-cv-1663 TLN KJN P

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

June 3, 2021

FINDINGS AND RECOMMENDATIONS

Introduction

Plaintiff is a federal prisoner, proceeding without counsel, with a civil action. Pending before the court is defendant Shelton's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 54.) For the reasons stated herein, the undersigned recommends that defendant's motion be granted in part and denied in part.

Legal Standard for 12(b)(6) Motion

A complaint may be dismissed for "failure to state a claim upon which relief may be granted." Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss for failure to state a claim, a plaintiff must allege "enough facts to state a claim for relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). 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." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). The plausibility standard is not akin to a "probability requirement," but it requires more than a sheer possibility that a defendant has acted unlawfully. Iqbal, 556 U.S. at 678.

Dismissal under Rule 12(b)(6) may be based on either: (1) lack of a cognizable legal theory; or (2) insufficient facts under a cognizable legal theory. Chubb Custom Ins. Co. v. Space Sys./Loral, Inc., 710 F.3d 946, 956 (9th Cir. 2013). Dismissal also is appropriate if the complaint alleges a fact that necessarily defeats the claim. Franklin v. Murphy, 745 F.2d 1221, 1228-1229 (9th Cir. 1984).

Pro se pleadings are held to a less-stringent standard than those drafted by lawyers. Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). However, the court need not accept as true unreasonable inferences or conclusory legal allegations cast in the form of factual allegations. See Ileto v. Glock Inc., 349 F.3d 1191, 1200 (9th Cir. 2003) (citing Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981)).

In ruling on a motion to dismiss filed 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). Although the court may not consider a memorandum in opposition to a defendant's motion to dismiss to determine the propriety of a Rule 12(b)(6) motion, see Schneider v. Cal. Dep't of Corrections, 151 F.3d 1194, 1197 n.1 (9th Cir. 1998), it may consider allegations raised in opposition papers in deciding whether to grant leave to amend. See e.g., Broam v. Bogan, 320 F.3d 1023, 1026 n.2 (9th Cir. 2003).

Plaintiff's Claims

This action proceeds on plaintiff's verified first amended complaint filed October 15, 2020, against defendants Sacramento County Deputy Sheriff Shelton and Assistant United States Attorney Endrizzi. (ECF No. 39.)

Plaintiff alleges that in 2009, defendant Shelton provided defendant Endrizzi with recordings of privileged telephone calls between plaintiff and his lawyer, Scott Tedmon, while plaintiff was housed at the Sacramento County Jail during criminal proceedings. (Id. at 2, 4-5.) Plaintiff alleges that the purpose of these disclosures was to give defendant Endrizzi an unfair advantage in the prosecution of plaintiff in two criminal trials held in the United States District Court for the Eastern District of California. (Id.)

Plaintiff alleges that he filed multiple grievances to Captain Maness concerning his belief that defendant Shelton may be sending, among other things, recordings of telephone calls between plaintiff and his criminal attorney, i.e., Scott Tedmon, to the government prosecutors or the FBI. (Id. at 8-9.) Plaintiff alleges that in response to his numerous grievances, defendant Shelton stated that none of his privileged information was being disclosed to any third party, including the government prosecutors or the FBI. (Id.) Plaintiff alleges that Captain Maness confirmed this fact as well. (Id.)

Plaintiff also alleges that in response to discovery requests made during his criminal prosecution, defendant Endrizzi did not disclose that she possessed recorded phone calls between plaintiff and his lawyer, given to her by defendant Shelton. (Id. at 14.)

Plaintiff alleges that in July of 2019, in response to his request for records, he received information showing defendant Shelton delivered to defendant Endrizzi recordings of telephone calls between plaintiff and his criminal lawyer while plaintiff was housed at the Sacramento County Jail in 2009. (Id. at 14-15.)

This action proceeds on plaintiff's claims that defendants Shelton and Endrizzi violated the Wiretap Act, defendant Endrizzi violated the Stored Communications Act, defendants Shelton and Endrizzi conspired to violate the California Invasion of Privacy Act, and defendants Shelton and Endrizzi violated plaintiff's right to privacy under the California Constitution. (ECF No. 50.)

Discussion --Is Plaintiff's Wiretap Act Claim Barred by the Statute of Limitations?

Legal Standard

"The Wiretap Act provides a civil cause of action to 'any person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of [18U.S.C. §§ 2510-2523].'" Bliss v. CoreCivic, Inc., 978 F.3d 1144, 1147 (9th Cir. 2020) (quoting 18 U.S.C. § 2520(a).) "A plaintiff must bring an action under the Act no 'later than two years after the date upon which the claimant first has a reasonable opportunity to discover the violation.'" Id. (quoting 18 U.S.C. § 2520(e).)

Discussion

Defendant argues that plaintiff filed this action on August 26, 2019 (ECF No. 1), which is ten years after the alleged Wiretap Act violations occurred. Defendant argues that plaintiff knew as early as 2009—when he was still in the Sacramento County Jail—that his calls with his attorney were recorded and shared with the prosecution. In support of these arguments, defendant requests that the court take judicial notice of three documents: the government's opposition to plaintiff's motion for bail review filed in plaintiff's criminal case and two letters written by plaintiff attached as exhibits to this opposition. Defendant also argues that the use of the recordings at plaintiff's trial put plaintiff on notice that the prosecutor possessed these recordings.

In his opposition, plaintiff argues that his claims are not time-barred because he is entitled to equitable estoppel.

The undersigned first considers defendant's request to take judicial notice of the three documents cited in the motion to dismiss.

"The Court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b).

Defendant requests that the court take judicial notice of two letters attached as exhibits to the prosecution's opposition to plaintiff's motion for bail review filed August 12, 2009. In a letter dated April 2, 2009 addressed to "Shayna," plaintiff wrote, "I will call you but it's important that you do not mention anything about the things in this letter other than when or if you are coming to visit me." (2: 08-cr-93 at ECF No. 279-2 at 18.) In another letter dated April 1, 2009 addressed to Attorney Burley, plaintiff wrote, "[i]n case you are wondering everything we are doing is 100% legal; so much that we are going to transact business on the monitoredjailhouse telephones." (2: 08-cr-93 at ECF No. 279-7 at 7-8.) Defendant argues that these letters demonstrate that plaintiff knew that his telephone calls at the jail were being recorded.

The undersigned may take notice of the fact that these letters are attached as exhibits to the government's opposition. The undersigned may not, however, assume the factual truth of the assertions in these unverified letters, i.e., that plaintiff knew his telephone calls were being recorded. See, e.g., Ransom v. Herrera, 2016 WL 7474866, at *4 (E.D. Cal. Dec. 28, 2016) (refusing, at the motion to dismiss stage, to take judicial notice of the plaintiff's complaint in another case because, "Defendants appear to be asking that the Court take judicial notice of facts asserted in that complaint," and "[w]hile Plaintiff's factual allegations in another complaint would be relevant for determining the underlying merits of the case, they are not properly the subject of judicial notice.").¹

Defendant next requests that the court take judicial notice of a footnote in the prosecution's opposition to plaintiff's motion for bail review. Defendant argues that this footnote informed plaintiff that his telephone conversations with his attorneys were being recorded and shared with the prosecutor. In relevant part, the opposition states,

As will be discussed within, the defendant marked non-legal mail as legal mail. According to the California Bar Association, Hanna Ko, is not a licensed attorney in California. Moreover, jail recordings indicate that their relationship is intimate, rather than professional.

(2: 08-cr-93 at ECF No. 279 at 2, no. 1)

The undersigned takes judicial notice of the footnote set forth above in the government's opposition to plaintiff's motion for bail review. Fed. R. Evid. 201(b).

The undersigned finds that that footnote in the government's opposition may have put plaintiff on notice that the government possessed recordings of telephone calls between plaintiff and a non-attorney, Hanna Ko. This footnote did not put plaintiff on notice that the government possessed recordings of telephone calls between plaintiff and his...