Rhodes v. Robinson, et al
Filing
254
FINDINGS and RECOMMENDATIONS Recommending Defendants' Motion to Dismiss be Granted in Part and Denied in Part and Certain Claims and Defendants be Dismissed 240 , signed by Magistrate Judge Dennis L. Beck on 12/19/11. Referred to Judge O'Neill. (Verduzco, M)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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KAVIN M. RHODES,
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Plaintiff,
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CASE NO. 1:02-CV-05018-LJO-DLB PC
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DEFENDANTS’
MOTION TO DISMISS BE GRANTED IN
PART AND DENIED IN PART AND
CERTAIN CLAIMS AND DEFENDANTS BE
DISMISSED
v.
M. ROBINSON, et al.,
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Defendants.
(DOC. 240)
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/
OBJECTIONS, IF ANY, DUE WITHIN
THIRTY DAYS
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Findings And Recommendations
I.
Background
Plaintiff Kavin M. Rhodes (“Plaintiff”) is a prisoner in the custody of the California
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Department of Corrections and Rehabilitation (“CDCR”). Plaintiff is proceeding pro se and in
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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On March 20, 2006,
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Plaintiff filed a second amended complaint. Doc. 89. On February 12, 2007, the undersigned
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recommended that Plaintiff’s claims thirteen through thirty-three, which occurred between
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January 2, 2002 through November 15, 2003, should be dismissed without prejudice for failure
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to exhaust administrative remedies. Doc. 94. On March 9, 2007, the District Judge adopted the
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Findings and Recommendations and dismissed claims thirteen through thirty-three of Plaintiff’s
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second amended complaint without prejudice for failure to exhaust administrative remedies. Doc.
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97. Plaintiff appealed the Court’s order on April 4, 2007. Doc. 103. On September 8, 2010, the
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United States Court of Appeals for the Ninth Circuit issued a published decision, reversing the
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Court’s order and remanding for further proceedings. Doc. 212.
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On March 10, 2011, the Court granted Plaintiff leave to file a third amended complaint, in
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effect a supplemental complaint. Doc. 224. On June 9, 2011, Plaintiff filed his third amended
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complaint. Doc. 239.
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Prior to the Court screening Plaintiff’s third amended complaint pursuant to 28 U.S.C. §
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1915A, on June 24, 2011, Defendants Blevins, Huebner, A. Lopez, Sara Malone, C. Nelson, V.
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Pazo, Robertson, M. Robinson, and J. Tidwell filed a motion to dismiss pursuant to Rule
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12(b)(6) of the Federal Rules of Civil Procedure. Doc. 240. On August 23, 2011, Plaintiff filed
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his opposition. Doc. 245. No reply was filed. The matter is submitted pursuant to Local Rule
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230(l). The Court will now screen Plaintiff’s third amended complaint and consider Defendants’
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arguments raised in their motion to dismiss.
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II.
Screening
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A.
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The Court is required to screen complaints brought by prisoners seeking relief against a
Legal Standard
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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The
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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are
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legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or
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that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.
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§ 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion thereof, that may have been
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paid, the court shall dismiss the case at any time if the court determines that . . . the action or
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appeal . . . fails to state a claim upon which relief may be granted.” 28 U.S.C. §
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1915(e)(2)(B)(ii).
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A complaint must contain “a short and plain statement of the claim showing that the
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pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not
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required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere
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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing
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Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual
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matter, accepted as true, to ‘state a claim that is plausible on its face.’” Id. (quoting Twombly,
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550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id.
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B.
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Plaintiff makes the following allegations in his third amended complaint. Counts One
Summary Of Third Amended Complaint (“TAC”)
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through Thirteen concern events that occurred at California Correctional Institution (“CCI”), in
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Tehachapi, California.
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1.
Count One
On December 26, 2001, Plaintiff placed in the mail a civil rights complaint concerning
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this action. TAC 2. Plaintiff named as Defendants M. Robinson, R. Blevins, V. Pazo, J.
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Tidwell, and A. Lopez, among others. Id. On January 2, 2002, Defendants Pazo, R. Wenneker,
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and Tidwell approached Plaintiff. Id. Defendant Tidwell stated that he knew Plaintiff had filed a
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lawsuit. Id. Plaintiff feared for his safety and denied filing one. Id. Defendant Tidwell
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attempted to intimidate Plaintiff into turning over a copy of his complaint, which Plaintiff
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continued to deny being filed. Id. Because Plaintiff refused to turn over the complaint,
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Defendants Pazo, Tidwell, and Wenneker went into Plaintiff’s cell to search for it. Id. They
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could not find it, and then confiscated Plaintiff’s carrying case for his CD player, sunglasses, A/C
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adapter, pens, pencils, and writing tablets. Id. Plaintiff contends a violation of the First
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Amendment.
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2.
Count Two
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On January 3, 2002, at 7:30 a.m., Defendants Tidwell and Wenneker appeared at
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Plaintiff’s cell door, where Defendant Tidwell told Plaintiff that he needed to escort him to the
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unit office. Id. at 3. During the escort, Plaintiff observed Defendant Pazo going towards
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Plaintiff’s cell with a large laundry cart. Id. Plaintiff was locked in the clinic holding for several
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hours. Id. Upon being allowed to return to his cell, Plaintiff discovered that three large boxes,
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containing Plaintiff’s legal property, had been confiscated by Defendants Tidwell, Wenneker,
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and Pazo. Id. The property was delivered to R&R to Defendants Robinson and Blevins. Id.
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Plaintiff’s property was never returned. Id. Defendant Lopez, an original Defendant in this
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action, adjudicated Plaintiff’s subsequent inmate grievance. Id. Plaintiff contends a violation of
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the First Amendment.
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3.
Count Three
On January 13, 2002, Plaintiff appeared before the classification committee. Id. at 4.
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Defendant Lopez, the chair of the committee, retaliated against Plaintiff for filing this action by
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firing Plaintiff from his inmate job assignment as a SHU (security housing unit) legal clerk,
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without explanation. Id. Plaintiff contends a violation of the First Amendment.
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4.
Count Four
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Legal documents from January 4, 2002 to January 30, 2002, sent by the Court, were read,
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copied, and held by Defendants Robinson and Blevins. Id. at 5. Defendants used this knowledge
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of Plaintiff’s complaint to engage in retaliation. Id. The undersigned conspired with Defendants
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by sending mail from the Court to Defendants rather than Plaintiff. Id. Plaintiff received his
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mail obviously opened and re-sealed with tape, with the notation “Legal Mail per R&R” written
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on it. Id. Plaintiff contends a violation of the First Amendment.1
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5.
Count Five
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Defendants D. Chapman, E. Hanson, S. Buentempo, Dr. S. Skeen, Dr. McDill, A. Lopez,
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C. Nelson, and K. Todd fabricated Rules Violation Reports as retaliation. Id. at 6. On January 8,
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2002, Defendant Buentempo appeared at Plaintiff’s cell door and told him that Defendant
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Chapman had asked Defendant Buentempo to take Plaintiff to a classification hearing for a job
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change. Id. Plaintiff was then formally removed from his legal clerk position. Id. Plaintiff
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contends a violation of the First Amendment.
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6.
Count Six
After Plaintiff had been fired by Defendant Lopez, Plaintiff appealed the decision. Id. at
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7. Defendant Chapman responded to the appeal by taking Plaintiff back to classification less
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than thirty days after his January 13, 2002 classification hearing, and Plaintiff was put up for
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transfer. Id. Defendant Chapman stated that Plaintiff could work in the main library. Id. While
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working in the main library, Plaintiff was harassed by Defendants Tidwell and Pazo and
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The Court takes judicial notice of the docket in this action. A review of the docket
indicates that the Court did not send Plaintiff any documents from January 4 to January 30 of
2002.
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restricted from doing any legal work. Id. The transfer was cancelled. Id. On January 8, 2003,
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Defendant Chapman had Plaintiff brought back to classification hearing to remove Plaintiff from
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the main library. Id. As Plaintiff was leaving, Plaintiff overheard Defendant C. Nelson
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whispering to Defendant Chapman regarding Plaintiff’s single cell status. Id. Plaintiff was later
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seen by Defendant Skeen, who stated that she would write a chrono to retain Plaintiff on single
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status, but that Plaintiff would probably be transferred. Id. Plaintiff contends a violation of the
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First Amendment.
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Count Seven
On January 5, 2003, Plaintiff was taken back to classification and referred to IDDTT. Id.
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at 8. Defendant Skeen informed Plaintiff that he would be retained on single cell status. Id.
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Shortly after, Defendant C. Nelson, with Defendant Hansen present, asked Plaintiff why he did
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not want to be double-celled. Id. After Plaintiff told them, both Defendants laughed. Id. On
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February 25, 2003, Defendant Hansen, with Defendant Nelson present, called Plaintiff into the
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office and stated that he had spoken with Defendant McDill, who had cleared Plaintiff for double
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celling. Id. Plaintiff had never been evaluated by Defendant McDill. Id. On February 26, 2003,
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Defendant Hansen brought Plaintiff back to classification committee, chaired by Defendant
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Chapman. Id. Defendant Chapman asked why Plaintiff did not want to be double celled. After
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Plaintiff told the truth, Defendant Chapman stated, “Lock him up!” Plaintiff was placed in a
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holding cell to go to the “hole” (administrative segregation). Id. Plaintiff witnessed Defendant
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Chapman say to Defendant Hansen, “what do you really want to do with [Plaintiff]?” Id.
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Defendant Hansen replied that Plaintiff should be locked up. Defendant Skeen produced a 114-D
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lock up order, finding that there were no psychological issues to preclude double-celling.” Id.
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This contradicted Plaintiff’s previous chronos from January 16, 2003 and February 5, 2003. Id.
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Plaintiff contends a violation of the First and Eighth Amendment.
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8.
Count Eight
On February 27, 2003, Plaintiff was issued a CDC 115 authored by Defendant J. Ramos,
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which stated that Plaintiff attempted to cause conditions likely to threaten institutional security.
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Id. at 9. Defendant A. Lopez saw Plaintiff on February 28, 2003. Id. He told Plaintiff that the
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115 was flimsy, and Plaintiff would go to classification committee on March 6, 2003. Id. On
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March 4, Plaintiff received a revised 115, which changed the charge to “threatening to kill a cell
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mate”, which would result in a lengthy SHU term. Id. At the committee hearing on March 6,
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Defendant A. Lopez admitted that he had re-classified the 115, which was based on fabricated
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charges. Id. While at committee, Defendant K. Todd was extremely hostile towards Plaintiff,
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threatening to have him committed to a psychiatric facility if he continued to file grievances. Id.
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Defendant Todd had denied all of Plaintiff’s grievances against Defendant Lopez. Id. Plaintiff
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contends a violation of the First Amendment.
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Count Nine
Defendant S. Skeen began to try and coax Plaintiff into agreeing to take psychotropic
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medication, an attempt, Plaintiff contends, to render Plaintiff docile and passive and unable to
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pursue his First Amendment rights. Id. at 10. Defendant S. Skeen conspired to harm Plaintiff in
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furtherance of Defendant Todd’s threats to have Plaintiff committed to a psychiatric facility. Id.
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Plaintiff contends a violation of the First and Eighth Amendment.
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10.
Count Ten
Plaintiff submitted a grievance contending misconduct by Defendants Lopez, Todd,
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Chapman, Hansen, Buentempo, Skeen, McDill, and Nelson. Id. at 11. On April 2, 2003, while
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in the hole, Defendants P. Matzen and J. Garza came to Plaintiff’s cell door and displayed the
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inmate grievance. Id. Defendant Matzen asked whether Plaintiff was sure he wanted to proceed
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further with the appeal. Id. Defendant Garza slowly put on his black gloves to intimidate
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Plaintiff. Id. Plaintiff replied yes. Id. After Defendants Matzen and Garza left, Defendant A.
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Lopez appeared very soon after with Defendants Matzen and Garza. Id. Defendant Lopez
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shouted that Plaintiff would be put up for transfer, and threatening Plaintiff with violence. Id.
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Defendant Lopez repeatedly ordered Plaintiff to get out of his cell. Id. Plaintiff contends a
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violation of the First Amendment.
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Count Eleven
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On April 4, 2003, Defendant A. Lopez had Defendant Hopkins fabricate a 114 D lockup
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order for Plaintiff allegedly refusing numerous direct orders to exit his cell and be taken back to
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general population. Id. at 12. Plaintiff had requested in his inmate grievance to be retained in the
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hole to protect against further retaliation. Id. Plaintiff then received a CDC 115 authored by
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Defendant M. Dunlop. Id. The first hearing officer assigned to hear the rules violation,
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lieutenant Galvan, refused because no staff would say that they issued direct orders. Id. On May
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22, 2003, Defendant J. L. Peterson appeared and found Plaintiff guilty without any evidence. Id.
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On May 23, 2003, Plaintiff was interviewed by Defendant Dunlop regarding an unrelated matter,
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and admitted that after he wrote the 115 at issue, Defendant discovered that no staff had given
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Plaintiff direct orders. Id. Defendants Lopez and Todd brought Plaintiff back to classification
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committee in absentia and released Plaintiff back to classification. Id. Plaintiff received a
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classification chrono dated April 3, 2003, authored by Defendants Lopez, White, Todd, and
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McLaughlin stating that Plaintiff had agreed to the committee’s actions. Id. Plaintiff contends a
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violation of the First Amendment.
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Count Twelve
On April 28, 2003, Plaintiff submitted an appeal against Defendants Todd, Lopez, White,
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and McLaughlin regarding the classification chrono. Id. at 13. On June 23, 2003, Plaintiff
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received a response, in which Defendant J. Gutierrez responded that Defendant L. Garcia had
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interviewed Plaintiff twice, and he refused to attend the classification because he did not want to
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be released back to general population. Id. Plaintiff contends that he never spoke to Defendant
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Garcia about anything, and that Defendants Garcia and Gutierrez had thus joined the conspiracy
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of retaliation against Plaintiff. Id. Plaintiff contends a violation of the First Amendment.
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13.
Count Thirteen
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On June 17, 2003, Defendants Lopez, Zanchi, Chapman, Garza, Jones, Sherrit, Newby,
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Arellano, Watson, Genova, and G. Garcia conspired to fulfill Defendant Lopez’s threat of cell-
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extraction. Id. at 14. Defendants Garza and J. Jones each discharged the entire contents of a
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MK-46 pepper spray dispenser into Plaintiff’s cell. Id. After Defendant Garza emptied his
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dispenser, he opened the food port of Plaintiff’s cell door and discharged the entire contents of a
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MK-9 pepper spray into the cell, transforming Plaintiff’s cell into a proverbial gas chamber. Id.
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Plaintiff was denied medical care while in the holding cage. Id. Plaintiff summoned a medical
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MTA Deperio, who informed Plaintiff that the cell extraction was outside of policy because
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medical had not been notified. Id. Upon Plaintiff’s arrival at Lancaster State Prison on June 17,
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2003, Plaintiff forwarded an amended appeal to Defendant N. Grannis, chief of the inmate
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appeals branch, informing of Defendant Lopez’s actions. Id. Plaintiff contends a violation of the
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First Amendment, and excessive force in violation of the Eighth Amendment. Id.
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14.
Count Fourteen
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On July 7, 2003, Defendant N. Grannis sent a rejection notice to Plaintiff, stating that the
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office provided only the Director’s level review. Id. at 15. On August 8, 2003, Plaintiff received
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this notice. Id. Plaintiff immediately made an attempt to submit an amendment to the appeal to
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Defendant S. Whitlach, appeals coordinator at CCI. Id. On September 16, 2003, Defendant
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Whitlach sent a response, rejecting Plaintiff’s amendment, which Plaintiff received on December
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25, 2003. Id. Plaintiff then wrote a letter to Defendant Whitlach, explaining that his amendment
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to the appeal had been forwarded in a timely manner, and returned the appeal back to Defendant
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Whitlach for processing. Id. at 16. On October 1, 2004, Defendant Whitlach refused to process
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the grievance because it was untimely. Id. Plaintiff then forwarded his appeal again to
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Defendant Grannis. On December 24, 2004, Defendant Grannis again rejected the appeal, for the
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same reason. On January 11, 2005, Plaintiff again submitted his appeal, this time including an
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additional inmate grievance against Defendants Grannis and Whitlach. Id. On June 25, 2005,
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Plaintiff received a response from Defendant Grannis, which Plaintiff believes is a reversal of
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Defendant Grannis’s previous position. Id. at 16-17. The response returned Plaintiff’s appeal,
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and also stated that the matter had been fully adjudicated and a decision rendered. Id. Plaintiff
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believes Defendants Grannis and Whitlach are part of a conspiracy against Plaintiff. Id.
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Plaintiff contends a violation of the Supremacy Clause, 18 U.S.C. §§ 1961, 1962(d), and
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1341, RICO (Racketeer Influenced and Corrupt Organizations Act), and California Penal Code
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section 520.
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Count Fifteen
On October 12, 2010, the Ninth Circuit reversed and remanded to this Court in part. Id.
at 18. The undersigned initiated the retaliation against Plaintiff by sending an “advance copy” of
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Plaintiff complaint to prison officials. Id. Plaintiff filed a motion for injunctive relief to restore
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Plaintiff’s single cell status at Kern Valley State Prison (“KVSP”). Id. On September 22, 2010,
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Defendant Kenneth Roost, deputy attorney general for the state of California, committed mail
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fraud by submitting a notice that he had been substituted as counsel of record in this action. Id.
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Plaintiff forwarded his motion for injunctive relief to Defendant Roost. Id. Defendant Roost
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committed further mail fraud by responding to Plaintiff and stating that he had forwarded
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Plaintiff’s motion to Defendant John Riches, counsel of record for Defendants. Id.
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On October 29, 2010, Defendant W. Epperson, correctional sergeant at KVSP, stated to
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Plaintiff that the director of corrections in Sacramento had ordered Plaintiff and his cell mate to
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be separated. Id. at 19. Plaintiff was then moved to another cell with inmate Tate, who is
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allegedly a convicted rapist and twice Plaintiff’s size. Id. Plaintiff contends a conspiracy by the
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undersigned, Defendants Riches, Roost, and KVSP. Id.
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District Judge O’Neill and Flores, a clerk at the Eastern District of California, then
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engaged in “retaliation” by forwarding an order reopening this case to the Fresno Parole
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department, even though Plaintiff was not incarcerated there. Id. at 20. Plaintiff contends that
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this was a conspiracy to have Plaintiff’s second amended complaint dismissed. Id. On January
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18, 2011, Plaintiff filed a judicial misconduct complaint with the Ninth Circuit, complaining of
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the undersigned and Judge O’Neill’s actions. Id.
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On February 3, 2011, Defendant M. Stewart summoned Plaintiff to the program office to
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attempt to intimidate Plaintiff into accepting being locked in the hole to be protected from
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Defendant Epperson. Id. This failed, at which point Defendant Stewart threatened to throw
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Plaintiff in the hole for no reason. Id. Plaintiff contends that this was a conspiracy to have
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Plaintiff’s second amended complaint dismissed. Id. Plaintiff filed grievances regarding this
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incident, and forwarded them to both Defendants M. D. Biter, acting warden of KVSP, and
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Defendant secretary Matthew Cate, neither of whom responded. Id.
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On February 16, 2011, Defendants J. Hernandez and M. Marin arrived at Plaintiff’s cell
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from Defendant Stewart’s office. Id. Defendants Hernandez and Marin claimed to be
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conducting a random cell search. Id. After Plaintiff was out of view of potential inmate
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witnesses, Defendants Hernandez and Marin proceeded to throw Plaintiff to the ground and
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punch and kick him in the face and head. Defendant Epperson stated that those judges are going
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to make sure that Plaintiff died in prison. Defendant Stewart intimidated a licensed vocational
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nurse Negre into cataloging Plaintiff’s injuries as minor. Id. Plaintiff was thrown in the hole on
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fabricated charges of a plastic weapon. Id. at 21. Defendants Hernandez, Marin, Page, Stewart,
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Epperson, and T. S. Arlitz’s names appear on Plaintiff’s rules violation report. Id.
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On March 7, 2011, Plaintiff filed a complaint with the Ninth Circuit regarding Judge
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O’Neill and the undersigned’s conduct. Id. On March 9, 2011, the undersigned ordered Plaintiff
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to file a third amended complaint, limiting Plaintiff’s pleadings to twenty-five pages. Id. The
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undersigned also issued a Findings and Recommendations to deny Plaintiff’s motion for
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injunctive relief.2 Id. Plaintiff contends mail fraud because an order from the Court was
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mislabeled. Id.
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Defendant Ostrander found Plaintiff guilty on the false rules violation report. Id. On
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March 6, 2011, Plaintiff was interviewed by Defendant Campagna regarding his grievances, who
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refused to hear Plaintiff’s beating. Id. On March 8, 2011, Plaintiff filed an inmate grievance
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against Defendant Campagna. Id. On March 23, 2011, appeals coordinator Defendant J.
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Acebedo screened out Plaintiff’s appeal, and on March 29 and April 7 of 2011, Defendants S.
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Tallerico and D. Tarnoff did the same. Id. On May 11, 2011, Plaintiff received a letter from
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Defendant D. Lee on behalf of Defendant Cate, advising Plaintiff to file a complaint with the
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inspector general. Id.
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Plaintiff contends a violation of the First, Fifth, and Eighth Amendment, 18 U.S.C. §§
1951, 1961, 1962(b), and 1341, the Hobbs Act, and RICO.
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16.
Count Sixteen
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Plaintiff contends that the Prison Litigation Reform Act violates the Supremacy Clause,
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the First, Fifth, and Fourteenth Amendments, and the Sherman Act. Id. The PLRA allows the
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Plaintiff appealed the denial of Plaintiff’s motion. However, the Ninth Circuit
dismissed the appeal as untimely. Docs. 251, 252.
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CDCR to screen out administrative appeals for the purposes of denying inmates the ability to
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exhaust administrative remedies. Id.
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Plaintiff requests as relief an injunction restoring Plaintiff’s single cell status, an
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investigation by the office of Internal Affairs into the false rules violation reports, and trial by
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jury. Id. at 25.
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IV.
Analysis
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A.
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Defendants contend that part or all of Plaintiff’s claims from Counts One through Seven,
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Nine, Ten, Thirteen, and Fourteen are barred by the applicable statute of limitations, and are not
Statute of Limitations
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preserved by the relation back or equitable tolling doctrines. Defs.’ Mem. P. & A. 3:5-9:9.
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Defendants contend that all of Plaintiff’s allegations concerning events that occurred in 2002 are
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barred. Because the Court had ordered Plaintiff to re-file his allegations in his second amended
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complaint into this third amended complaint, the filing date of May 3, 2006 will be used here.3
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Because § 1983 contains no specific statute of limitations, federal courts should borrow
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state statutes of limitations for personal injury actions in § 1983 suits. See Wallace v. Kato, 549
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U.S. 384, 387 (2007); Alameda Books, Inc. v. City of L.A., 631 F.3d 1031, 1041 (9th Cir. 2011);
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Lukovsky v. City of San Francisco, 535 F.3d 1044, 1048 (9th Cir. 2008). Federal courts should
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also borrow all applicable provisions for tolling the limitations period found in state law.
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Wallace, 549 U.S. at 387. California’s statute of limitations for an action for a personal injury
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caused by the wrongful or negligent act of another is two years from the date of accrual. Cal.
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Civ. Proc. Code § 335.1 (2009).4 Federal law determines when a cause of action accrues and the
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The date of May 3, 2006 is when Plaintiff lodged his second amended complaint with
the Court. Doc. 73. The Court ordered Plaintiff’s second amended complaint filed on September
8, 2006. Doc. 89.
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Prior to January 1, 2003, the limitations period for personal injury actions was one year.
Cal. Civ. Proc. Code § 340.3 (2002). If a plaintiff has asserted any claims that were not time
barred on the effective date of the change in the limitations period, the plaintiff receives the
benefit of the extension. Miller v. Davis, 420 F. Supp. 2d 1108, 1110-11 (E. D. Cal. 2006). The
original one year limitations period results in Plaintiff’s allegations from January 2, 2002 onward
not being time-barred as of January 1, 2003, when the statute was enlarged an additional year.
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statute of limitations begins to run for a § 1983 claim. Lukovsky, 535 F.3d at 1048. A federal
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claim accrues when the plaintiff knows or has reason to know of the injury which is the basis of
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the action. Id.
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Plaintiff contends that he is entitled to equitable tolling for the time period in which he
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attempted to exhaust administrative remedies. Pl.’s Opp’n 7-8. Plaintiff is correct. See Brown v.
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Valoff, 422 F.3d 926, 943 (9th Cir. 2005) (holding that “the applicable statute of limitations must
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be tolled while a prisoner completes the mandatory exhaustion process.”). However, Plaintiff
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receives only two years under California law for the applicable statute of limitations. The
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exhaustion of administrative remedies would still have to account for the time period from when
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the claim first accrued to the lodging of Plaintiff’s second amended complaint on May 5, 2006.
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Plaintiff’s complaint lists the inmate grievances that he filed regarding each incident.
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However, Defendants have not presented further arguments or other evidence regarding
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the statute of limitations. Because statute of limitations is an affirmative defense, Fed. R. Civ. P.
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8(c)(1), and Defendants have not presented evidence regarding equitable tolling and the
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exhaustion of administrative remedies, Defendants’ motion to dismiss for statute of limitations
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should be denied.
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B.
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Defendants further contend that the relation back doctrine does not apply, citing to Mayle
Relation Back
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v. Felix, 545 U.S. 644 (2005). Defs.’ Mem. P. & A. 7:2-8:2. Plaintiff contends that all his
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claims arose out of a series of transactions or occurrences, citing Federal Rule of Civil Procedure
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15(c)(2). Pl.’s Opp’n 12.
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The parties are incorrect as to the proper relation back standard. Under Ninth Circuit law,
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Plaintiff thus receives the benefit of the extension.
Contrary to Defendants’ assertion, Plaintiff is not entitled to an extra two years under
section 352.1 of the California Code of Civil Procedure. See Cal. Civ. Proc. Code § 352.1(c)
(“This section does not apply to an action, other than an action to recover damages or that portion
of an action that is for the recovery of damages, relating to the conditions of confinement,
including an action brought by that person pursuant to Section 1983 of Title 42 of the United
States Code.”). As alleged in Plaintiff’s requested relief in the operative complaint, this is not an
action to recover damages.
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for § 1983 claims, the relation back doctrine is governed by state law, as it is a matter related to
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the statute of limitations. Merritt v. County of Los Angeles, 875 F.2d 765, 768 (9th Cir. 1989);
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Cabrales v. County of Los Angeles, 864 F.2d 1454, 1463 (9th Cir. 1988). Additionally, it
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appears that the parties are conflating amendment of pleadings with supplemental pleadings. It is
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Plaintiff’s supplemental pleadings which are at issue here.5
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Under California law,
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‘Whether the supplemental complaint may encompass the . . . period following
commencement of suit, despite the statute of limitations, will depend upon the
nature of the claims raised in the supplemental pleading. If those claims are
unrelated to those alleged in the initial complaint, or rely on conduct or events
different from those involved in the original action, the statute of limitations
should be applied. [] Where, however, the original pleading gave notice that the
wrongful conduct was of a continuing nature, supplemental pleadings addressed to
the same conduct should not encounter statute of limitations questions.’
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Bendix Corp. v. City of L.A., 150 Cal. App. 3d 921, 926 (1984) (quoting William Inglis & Sons
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Baking Co. v. Itt Cont’l Baking Co., 668 F.2d 1014, 1057 (9th Cir. 1981) (citing Rule 15(d) of
14
the Federal Rules of Civil Procedure)); cf. Lee v. Bank of America NTSA, 27 Cal. App. 4th 197,
15
214 (1994) (finding that pleadings filed in amended complaint were not supplemental pleadings
16
as they were unrelated).
17
Plaintiff’s second amended complaint “gave notice that the wrongful conduct was of a
18
continuing nature.” Counts One through Twelve of the second amended complaint, which have
19
been fully adjudicated, alleged a continued series of retaliation for Plaintiff filing inmate
20
grievances. Plaintiff’s supplemental pleadings alleged more retaliation as a result of Plaintiff
21
filing a complaint regarding those grievances. Thus, for purposes of relation back, Plaintiff’s
22
claims are related to the original pleadings. Accordingly, the Court finds no statute of limitations
23
concerns for Plaintiff’s claims in Counts One through Seven, Nine, Ten, Thirteen, and Fourteen.
24
///
25
26
27
28
5
Supplemental pleadings “set[] out any transaction, occurrence, or event that happened
after the date of the pleading to be supplemented.” Fed. R. Civ. P. 15(d). Plaintiff’s second
amended complaint included supplemental pleadings, namely events that occurred after the filing
of Plaintiff’s original complaint. Plaintiff’s third supplemental complaint restates claims raised
in the second amended complaint.
13
1
C.
2
Defendants contend that the newly added Defendants, forty-four in total, are improperly
Permissive Joinder
3
joined in this action pursuant to Rule 20(a)(2) of the Federal Rules of Civil Procedure. Defs.’
4
Mem. P. & A. 12:21-13:12. Plaintiff contends that he does comply with Rule 20. Pl.’s Opp’n
5
23.
6
Pursuant to Federal Rule of Civil Procedure 20(a)(2), defendants may be joined in one
7
action if “(A) any right to relief is asserted against them jointly, severally, or with respect to or
8
arising out of the same transaction, occurrence, or series of transaction or occurrences; and (B)
9
any question of law or fact common to all defendants will arise in the action.” Plaintiff contends
10
that there is a conspiracy against Plaintiff by all Defendants named in this action to retaliate
11
against him for exercising his First Amendment rights. If Plaintiff sufficiently alleged a
12
conspiracy or RICO violation, then all Defendants would be properly joined, as the right to relief
13
against all Defendants would arise from the same series of transaction or occurrences.
14
RICO, 18 U.S.C. §§ 1961-1968, allows a private citizen to sue to recover treble damages
15
for injury “by reason of a violation of section 1962,” which prohibits conducting or participating
16
in the conduct of an enterprise through a pattern of racketeering activity or through the collection
17
of an unlawful debt. 18 U.S.C. §1962. A violation of § 1962(c) requires 1) conduct 2) of an
18
enterprise 3) through a pattern 4) of racketeering activity. Sedima, S.P.R.L. v. Imrex Co., 473
19
U.S.479, 496 (1985). Furthermore, the plaintiff must actually be injured by the conduct which
20
purportedly violates 18 U.S.C. § 1962. Id. Plaintiff alleges a violation of 18 U.S.C. § 1962(d).
21
Plaintiff’s allegations are insufficient to state a claim for violation of RICO. Plaintiff makes only
22
a bare allegation of a violation of RICO, which fails to state a claim. Iqbal, 129 S. Ct. at 1949.
23
A conspiracy claim brought under § 1983 requires proof of “‘an agreement or meeting of
24
the minds to violate constitutional rights,’” Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2001)
25
(quoting United Steel Workers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1540-41 (9th Cir.
26
1989) (citation omitted)), and an actual deprivation of constitutional rights, Hart v. Parks, 450
27
F.3d 1059, 1071 (9th Cir. 2006) (quoting Woodrum v. Woodward County, Oklahoma, 866 F.2d
28
1121, 1126 (9th Cir. 1989)). “‘To be liable, each participant in the conspiracy need not know the
14
1
exact details of the plan, but each participant must at least share the common objective of the
2
conspiracy.’” Franklin, 312 F.3d at 441 (quoting United Steel Workers, 865 F.2d at 1541).
3
The federal system is one of notice pleading, and the court may not apply a heightened
4
pleading standard to plaintiff’s allegations of conspiracy. Empress LLC v. City and County of
5
San Francisco, 419 F.3d 1052, 1056 (9th Cir. 2005); Galbraith v. County of Santa Clara, 307
6
F.3d 1119, 1126 (2002). However, although accepted as true, the “[f]actual allegations must be
7
[sufficient] to raise a right to relief above the speculative level . . . .” Bell Atl. Corp. v. Twombly,
8
550 U.S. 544, 555 (2007) (citations omitted). A plaintiff must set forth “the grounds of his
9
entitlement to relief[,]” which “requires more than labels and conclusions, and a formulaic
10
recitation of the elements of a cause of action . . . .” Id. (internal quotations and citations
11
omitted). As such, a bare allegation that Defendants conspired to violate Plaintiff's constitutional
12
rights will not suffice to give rise to a conspiracy claim under § 1983. Plaintiff’s conclusion that
13
all perceived adverse action against Plaintiff is a conspiracy is a legal conclusion and does not
14
rise to the level of a plausible claim. Iqbal, 129 S. Ct. at 1949-50.
15
Because no conspiracy or RICO claim exists to link all Defendants in this action, the
16
Court examines Plaintiff’s claims in more detail to determine whether all claims arise from the
17
same series of transactions or occurrences.
18
19
D.
Claims At KVSP
Plaintiff’s claims arising at KVSP, Count Fifteen, are unrelated to the claims arising at
20
CCI, as they do not arise from the same series of transactions or occurrences. The only link
21
between the series of transactions at the two prisons is Plaintiff’s bare allegations of RICO and
22
conspiracy, which fail to state a claim. For the sake of judicial economy, the Court will screen
23
Plaintiff’s claims against deputy attorney generals Kenneth Roost and John Riches, District
24
Judge O’Neill, E. Flores, and the undersigned. Plaintiff’s other claims arising at KVSP will be
25
dismissed from this action, without prejudice to filing in a new, separate action.
26
Plaintiff’s allegation that Judge O’Neill, E. Flores, Kenneth Roost, and John Riches
27
engaged in mail fraud fails to state a claim. Mail fraud, codified at 18 U.S.C. § 1341, is not
28
actionable under 42 U.S.C. § 1983. See Wilcox v. First Interstate Bank, 815 F.2d 522, 533 n.1
15
1
(9th Cir. 1987) (recognizing that no private right of action exists under 18 U.S.C. § 1341).
2
Plaintiff likewise cannot raise a § 1983 claim based on the Hobbs Act, 18 U.S.C. § 1951, for
3
federal criminal extortion. In order to seek redress under § 1983, there must be a private cause of
4
action. Blessing v. Freestone, 520 U.S. 329, 340-41 (1997). No private cause of action exists for
5
18 U.S.C. § 1951.
6
If Plaintiff is alleging retaliation against Judge O’Neill, E. Flores, Kenneth Roost, John
7
Riches, and the undersigned, Plaintiff fails to state a claim. Allegations of retaliation against a
8
prisoner’s First Amendment rights to speech or to petition the government may support a § 1983
9
claim. Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985); see also Valandingham v.
10
Bojorquez, 866 F.2d 1135 (9th Cir. 1989); Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995).
11
“Within the prison context, a viable claim of First Amendment retaliation entails five basic
12
elements: (1) An assertion that a state actor took some adverse action against an inmate (2)
13
because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s
14
exercise of his First Amendment rights, and (5) the action did not reasonably advance a
15
legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005).
16
As stated previously in other orders, Plaintiff’s mail being sent to the wrong address was
17
an unintentional error, and promptly corrected when brought to the Court’s attention. Plaintiff’s
18
contention that Judge O’Neill, the undersigned, or E. Flores attempted to have Plaintiff’s
19
complaint dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure is
20
speculative. Plaintiff’s action still proceeds. Thus, there is no allegation of an adverse action
21
because of Plaintiff’s First Amendment conduct, and no cognizable retaliation claim. Likewise,
22
Defendant Roost’s alleged conduct in telling Plaintiff that he had sent a notice that he had
23
forwarded Plaintiff’s motion for injunctive relief, without having done so, is not adverse action
24
because of Plaintiff’s First Amendment conduct.
25
Plaintiff’s contention that the undersigned sent an advance copy of Plaintiff’s complaint
26
to any Defendants fails to state a claim. A review of the court’s docket reveals that no
27
documents were sent by the Court regarding this action until February 12, 2002. Plaintiff’s
28
contention that the undersigned sent any documents to prison officials between January 4 to
16
1
January 30 of 2002 is without merit. Plaintiff’s allegations of retaliation fail to state a claim, as
2
Plaintiff has not alleged facts which demonstrate that the undersigned took adverse action against
3
Plaintiff because of Plaintiff’s protected conduct. Additionally, both the undersigned and Judge
4
O’Neill are entitled to judicial immunity for all conduct taken in the course of their official
5
capacities. See Mireles v. Waco, 502 U.S. 9, 9 (1991) (per curiam); Moore v. Brewster, 96 F.3d
6
1240. 1243 (9th Cir. 1996); Tanner v. Heise, 879 F.2d 572, 576-78 (9th Cir. 1989).
7
E.
8
9
Claims at CCI
1.
Counts One and Two
Plaintiff states a cognizable claim for relief against Defendants Wenneker, Pazo, and
10
Tidwell for retaliation in violation of the First Amendment for depriving Plaintiff of his property
11
because he filed a civil rights complaint. Plaintiff fails to state a claim for relief against
12
Defendants Blevins and Robinson for retaliation. Plaintiff alleges that Defendants Blevins and
13
Robinson received Plaintiff’s property, which was never returned. These allegations do not
14
demonstrate that Defendants Blevins and Robinson acted adversely because of Plaintiff’s
15
complaint.
16
2.
Count Three
17
Plaintiff states a cognizable claim for relief for retaliation in violation of the First
18
Amendment against Defendant Lopez for firing Plaintiff because he had filed this action and an
19
inmate grievance.
20
21
3.
Count Four
Plaintiff fails to state a claim for relief under the First Amendment against Defendants
22
Blevins and Robinson for opening Plaintiff’s mail. Prisoners have “a First Amendment right to
23
send and receive mail.” Witherow v. Paff, 52 F.3d 264, 265 (9th Cir. 1995). Prison regulations
24
relating to the regulation of incoming mail are analyzed under the Turner reasonableness
25
standard set forth in Turner v. Safley, 482 U.S. 78, 89-91 (1987). Prison Legal News v. Lehman,
26
397 F.3d 692, 699 (9th Cir. 2005) (citing Thornburgh v. Abbott, 490 U.S. 401, 408 (1989)). The
27
regulation is valid if it is reasonably related to legitimate penological interests. Turner, 482 U.S.
28
at 89. In determining the reasonableness of the regulation, the court must consider the following
17
1
factors: (1) whether there is a “valid, rational connection between the regulation and the
2
legitimate government interest put forward to justify it,” (2) “whether there are alternative means
3
of exercising the right,” (3) the impact that the “accommodation of the asserted constitutional
4
right will have on guards and other inmates,” and (4) “the absence of ready alternatives.” Id. at
5
89-90.
6
However, mail from public officials or agencies does not necessarily have to be treated as
7
legal mail. See Mann v. Adams, 846 F.2d 589, 590-91 (9th Cir. 1988) (per curiam) (finding that
8
mail from public agencies, public officials, civil rights groups, and news media may be opened
9
outside the prisoner’s presence in light of security concerns). Furthermore, “[m]ail from the
10
courts, as contrasted to mail from a prisoner’s lawyer, is not legal mail.” Keenan v. Hall, 83 F.3d
11
1083, 1094 (9th Cir. 1996), amended by 135 F.3d 1318 (9th Cir. 1998). Here, it is unclear to
12
what mail Plaintiff refers, as the court docket reflects that no documents were sent from the
13
Court to Plaintiff regarding this action between January 4 and January 30 of 2002. Nonetheless,
14
mail from the Court is not generally confidential and thus is not legal mail. There does not
15
appear to be a First Amendment violation for opening mail from the court outside of Plaintiff’s
16
presence.
17
Plaintiff also fails to state a claim for relief for denial of access to the courts. Inmates
18
have a fundamental constitutional right of access to the courts. Lewis v. Casey, 518 U.S. 343, 346
19
(1996); Silva v. Di Vittorio, 658 F.3d 1090, 1101-02 (9th Cir. 2011). The right of access to the
20
courts is the right to bring to court a grievance the inmate wishes to present, and is limited to
21
direct criminal appeals, habeas petitions, and civil rights actions. Lewis, 518 U.S. at 354. To
22
bring a claim, a prisoner must have suffered an actual injury by being shut out of court.
23
Christopher v. Harbury, 536 U.S. 403, 415 (2002); Lewis, 518 U.S. at 351; Phillips v. Hust, 588
24
F.3d 652, 655 (9th Cir. 2009). Plaintiff alleges no facts which indicate that he has been shut out
25
of court by Defendants through any alleged interference.
26
27
28
4.
Count Five
Plaintiff fails to state a claim against Defendants D. Chapman, E. Hanson, S. Buentempo,
Dr. S. Skeen, Dr. McDill, A. Lopez, C. Nelson, and K. Todd for fabricating Rules Violation
18
1
Reports as retaliation. Plaintiff’s legal conclusions are insufficient to demonstrate retaliation.
2
Iqbal, 129 S. Ct. at 1949-50.
3
4
5.
Count Six
Plaintiff states a claim against Defendant Chapman for retaliation in violation of the First
5
Amendment. Plaintiff alleges Defendant Chapman, in response to Plaintiff filing an inmate
6
grievance regarding being fired from his job by Defendant Lopez, had Plaintiff put up for transfer
7
to another prison. This transfer was subsequently cancelled. However, a retaliatory prison
8
transfer may be an adverse action for purposes of retaliation. Gomez v. Vernon, 255 F.3d 1118,
9
1127-28 (9th Cir. 2001).
10
6.
Count Seven
11
Plaintiff fails to state a claim against Defendants Hanson, Chapman, McDill, and Skeen
12
for retaliation in violation of the First Amendment. The only action taken against Plaintiff was
13
the removal of his single cell status. However, Plaintiff alleges no facts which demonstrate that
14
the removal of single cell status is an adverse action, or that it was taken because of Plaintiff’s
15
protected First Amendment conduct. See Brodheim v. Cry, 584 F.3d 1262, 1269-70 (9th Cir.
16
2009) (correct standard for adverse action is whether a person of ordinary firmness would have
17
been chilled in the exercise of his First Amendment rights). Merely losing single cell status is
18
insufficient to demonstrate a chilling of Plaintiff’s First Amendment rights.
19
Plaintiff fails to allege a retaliation claim for placing Plaintiff in administrative
20
segregation. Plaintiff fails to allege facts which demonstrate that his placement in administrative
21
segregation was because of any protected First Amendment conduct by Plaintiff.
22
Plaintiff also fails to link Defendant McDill to any retaliatory actions. Plaintiff contends
23
that he was never seen by Defendant McDill. Thus, it would appear that Defendant McDill was
24
not involved in having Plaintiff removed from single cell status.
25
Plaintiff fails to state a claim against Defendants Hanson, Chapman, McDill, and Skeen
26
for violation of the Eighth Amendment. The Eighth Amendment protects prisoners from
27
inhumane methods of punishment and from inhumane conditions of confinement. Morgan v.
28
Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). Extreme deprivations are required to make out
19
1
a conditions of confinement claim, and only those deprivations denying the minimal civilized
2
measure of life’s necessities are sufficiently grave to form the basis of an Eighth Amendment
3
violation. Hudson v. McMillian, 503 U.S. 1, 9 (1992) (citations and quotations omitted). In
4
order to state a claim for violation of the Eighth Amendment, the plaintiff must allege facts
5
sufficient to support a claim that prison officials knew of and disregarded a substantial risk of
6
serious harm to the plaintiff. E.g., Farmer v. Brennan, 511 U.S. 825, 847 (1994); Frost v. Agnos,
7
152 F.3d 1124, 1128 (9th Cir. 1998). Plaintiff alleges no facts which demonstrate that prison
8
officials knew of and disregarded an excessive risk of serious harm to Plaintiff’s health or safety
9
by removing Plaintiff from single cell status. See Rhodes v. Chapman, 452 U.S. 337, 347-48
10
(1981) (finding that double-celling at maximum security prison did not violate the Eighth
11
Amendment since prisoners were not deprived of essential food, medical care, or sanitation, nor
12
did double-celling increase violence or other intolerable conditions of confinement).
13
14
7.
Count Eight
Plaintiff states a cognizable retaliation claim against Defendants K. Todd and A. Lopez.
15
Defendant K. Todd allegedly threatened to have Plaintiff transferred to a psychiatric facility
16
because of all the grievance that he filed. Defendant Lopez allegedly changed Plaintiff’s CDC
17
115 report to threatening to kill a cell mate. Based on the previous allegations against Defendant
18
Lopez, it is reasonable to infer that Defendant Lopez did this because of Plaintiff filing a civil
19
rights complaint and inmate grievances against him.
20
Plaintiff fails to state a cognizable claim against Defendant Ramos. Plaintiff fails to
21
allege facts which demonstrate that Defendant Ramos took adverse action against Plaintiff
22
because of Plaintiff’s protected First Amendment conduct.
23
24
8.
Count Nine
Plaintiff fails to state a claim against Defendant Skeen for retaliation in attempting to
25
coax Plaintiff to take psychotropic medication. Plaintiff alleges no adverse action by Defendant
26
Skeen. Coaxing Plaintiff to take psychotropic medication does not demonstrate a chilling effect
27
on Plaintiff’s First Amendment rights. Plaintiff’s contention that Defendant Skeen wanted to
28
make Plaintiff docile so that he would no longer exercise his First Amendment rights is
20
1
2
speculative.
Plaintiff fails to state a claim against Defendant Skeen for violation of the Eighth
3
Amendment. Plaintiff alleges no facts which demonstrate that she knew of an disregarded an
4
excessive risk of serious harm to Plaintiff’s health by coaxing Plaintiff to take psychotropic
5
medication. There is no allegation that demonstrate Plaintiff faced a sufficiently serious harm.
6
Farmer, 511 U.S. at 834.
7
9.
Count Ten
8
Plaintiff states a cognizable retaliation claim against Defendants Metzen, Garza, and
9
Lopez. Plaintiff alleges that Defendants Metzen and Garza attempted to intimidate Plaintiff
10
regarding the filing of his inmate grievance. Plaintiff alleges Defendant Lopez threatened
11
Plaintiff with violence and with being transferred to another prison because of the grievance.
12
13
14
15
Plaintiff does not state a claim against Defendants Todd, Chapman, Hansen, Buentempo,
Skeen, McDill, and Nelson regarding this incident.
10.
Count Eleven
Plaintiff fails to state a retaliation claim against Defendant Hicks for authoring a CDC
16
114 D order to place Plaintiff in administrative segregation for allegedly refusing a direct order.
17
Plaintiff alleges no facts which demonstrate that Defendant Hicks authored the order because of
18
Plaintiff’s protected First Amendment conduct. Plaintiff states a cognizable retaliation claim
19
against Defendant Lopez. Plaintiff alleges that Defendant Lopez had directed Defendant Hicks
20
to author the report, which based on previous allegations, indicates it was done because Plaintiff
21
had filed inmate grievances against him. Plaintiff fails to state a retaliation claim against
22
Defendant Dunlop, who authored the CDC 115 Rules Violation Report. Plaintiff alleges no facts
23
that indicate Defendant Dunlop took adverse action because of Plaintiff’s protected First
24
Amendment conduct.
25
Plaintiff fails to state a retaliation claim against Defendant Peterson. Plaintiff alleges no
26
facts which demonstrate that Defendant Peterson finding Plaintiff guilty of the Rules Violation
27
Report was done because of Plaintiff’s First Amendment conduct.
28
Plaintiff fails to state a retaliation claim against Defendants Lopez, White, Todd, and
21
1
McLaughlin regarding the classification committee’s actions. Plaintiff alleges no facts which
2
demonstrate that Defendants Lopez, White, Todd, and McLaughlin took adverse action against
3
Plaintiff because of Plaintiff’s First Amendment conduct.
4
5
11.
Count Twelve
Plaintiff fails to state a retaliation claim against Defendants Gutierrez and Garcia.
6
Plaintiff alleges that Defendant Gutierrez responded to Plaintiff’s grievance by stating that
7
Defendant Garcia had interviewed Plaintiff, which Plaintiff maintains did not occur. This
8
allegation does not indicate that Defendants Gutierrez or Garcia took adverse action against
9
Plaintiff because of Plaintiff’s First Amendment activities.
10
11
12.
Count Thirteen
Plaintiff states a cognizable claim for excessive force against Defendants Garza and
12
Jones. “What is necessary to show sufficient harm for purposes of the Cruel and Unusual
13
Punishments Clause [of the Eighth Amendment] depends upon the claim at issue . . . .” Hudson
14
v. McMillian, 503 U.S. 1, 8 (1992). “The objective component of an Eighth Amendment claim is
15
. . . contextual and responsive to contemporary standards of decency.” Id. (internal quotation
16
marks and citations omitted). The malicious and sadistic use of force to cause harm always
17
violates contemporary standards of decency, regardless of whether or not significant injury is
18
evident. Id. at 9; see also Oliver v. Keller, 289 F.3d 623, 628 (9th Cir. 2002) (Eighth
19
Amendment excessive force standard examines de minimis uses of force, not de minimis
20
injuries)). However, not “every malevolent touch by a prison guard gives rise to a federal cause
21
of action.” Hudson, 503 U.S. at 9. “The Eighth Amendment’s prohibition of cruel and unusual
22
punishments necessarily excludes from constitutional recognition de minimis uses of physical
23
force, provided that the use of force is not of a sort ‘repugnant to the conscience of mankind.”
24
Id. at 9-10 (internal quotations marks and citations omitted).
25
Plaintiff alleges that Defendant Garza emptied two canisters of pepper spray into
26
Plaintiff’s cell, while Defendant Jones emptied one canister. This is sufficient to allege a claim
27
for excessive force.
28
Plaintiff fails to state a claim regarding being denied medical care while in the holding
22
1
cage. Plaintiff fails to allege facts which link any Defendants to an act or failure to act with
2
knowledge and disregard of an excessive risk to Plaintiff’s health. Farmer, 511 U.S. at 837.
3
Plaintiff fails to allege a retaliation claim against Defendants Lopez, Zanchi, Chapman,
4
Garza, Jones, Sherrit, Newby, Arellano, Watson, Genova, and G. Garcia as to Count Thirteen.
5
Plaintiff fails to allege facts which demonstrate that adverse action was taken against Plaintiff
6
because of Plaintiff’s First Amendment conduct. Plaintiff’s bare allegations of conspiracy are
7
insufficient to support the claim.
8
13.
9
Count Fourteen
Plaintiff fails to state a claim against Defendants Grannis and Whitlach for any violation.
10
Plaintiff contends that Defendants screened out Plaintiff’s grievances improperly. There is no
11
constitutional entitlement to a specific prison grievance procedure. Ramirez v. Galaza, 334 F.3d
12
850, 860 (9th Cir. 2003) (citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir.1988)). Plaintiff’s
13
claim for violation of California Penal Code section 520, for extortion, is not a cause of action
14
under state law, as that is a criminal statute. To the extent that Plaintiff cites this section as a
15
predicate act for purposes of RICO, Plaintiff has not alleged a viable RICO claim.
16
17
14.
Count Sixteen
Plaintiff fails to state a claim that 42 U.S.C. § 1997e(a) violates the Supremacy Clause.
18
The Supremacy Clause states, “This Constitution, and the Laws of the United States which shall
19
be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority
20
of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be
21
bound thereby, any Thing in the Constitution or Laws of any State to the Contrary
22
notwithstanding.” U.S. Const. art. VI, cl. 2. “[T]he dispositive issue in any federal preemption
23
questions remains congressional intent.” Aguayo v. U.S. Bank, 653 F.3d 912, 918 (9th Cir. 2011)
24
(citing Barnett Bank of Marion Cnty., N.A. v. Nelson, 517 U.S. 25, 30 (1996)). The question to
25
ask is, “‘[d]id congress, in enacting the Federal Statute, intend to exercise its constitutionally
26
delegated authority to set aside the laws of a State? If so, the Supremacy Clause requires courts
27
to follow federal, not state, law.’” Id. (quoting Barnett Bank of Marion Cnty., 517 U.S. at 30).
28
A review of 42 U.S.C. § 1997e(a), and of the PLRA, indicates that Congress specifically
23
1
declined to set aside the laws of a state with regards to exhaustion of administrative remedies.
2
See Porter v. Nussle, 534 U.S. 516, 524-25 (2002) (“Beyond doubt, Congress enacted § 1997e(a)
3
to reduce the quantity and improve the quality of prisoner suits; to this purpose, Congress
4
afforded corrections officials time and opportunity to address complaints internally before
5
allowing the initiation of a federal case.”) (emphasis added). Administrative remedies are
6
pursued through a prison’s system, and defined by the prison. See Jones v. Bock, 549 U.S. 199,
7
218 (2007) (“[T]o properly exhaust administrative remedies prisoners must complete the
8
administrative review process in accordance with the applicable procedural rules[] – rules that
9
are defined not by the PLRA, but by the prison grievance process itself.”) (internal citations and
10
quotations omitted). Plaintiff thus fails to state a claim for violation of the Supremacy Clause.
11
Plaintiff also fails to state a claim for violation of the First, Fifth, and Fourteenth
12
Amendments. Plaintiff alleges no facts that demonstrate § 1997e(a) violates any of these
13
Amendments.
14
Plaintiff fails to state a claim for violation of the Sherman Act. Liability under the
15
Sherman Act, 15 U.S.C. § 1, “requires a ‘contract, combination . . ., or conspiracy, in restraint of
16
trade or commerce.” Twombly, 550 U.S. at 548. There are no allegations that any restraint of
17
trade or commerce has occurred.
18
F.
19
Plaintiff requests as relief single cell status at his current prison of incarceration, KVSP.
Equitable Relief
20
Because the Court will dismiss Plaintiff’s claims arising at KVSP from this action, Plaintiff’s
21
request for equitable relief will be moot. Plaintiff is no longer incarcerated at CCI. Andrews v.
22
Cervantes, 493 F.3d 1047, 1053 n.5 (9th Cir. 2007) (citing Johnson v. Moore, 948 F.2d 517, 510
23
(9th Cir. 1991) (per curiam)). The Court has no jurisdiction to determine the rights of parties not
24
before it. Zepeda v. United States Immigration & Naturalization Serv., 753 F.2d 719, 727 (9th
25
Cir. 1983); see Fed. R. Civ. P. 65(d). The Court also lacks jurisdiction over the Office of Internal
26
Affairs, as Internal Affairs is not a party to this action. Thus, the Court will not be able to grant
27
any of Plaintiff’s requests for equitable relief. Because equitable relief was the only relief
28
requested, the Court cannot grant any of Plaintiff’s requests for relief.
24
1
G.
2
The Court will recommend granting Plaintiff leave to amend as to his requests for relief.
Leave To Amend
3
Because Plaintiff was provided with the pleading requirements, the Court will recommend that
4
no further leave to amend be granted as to Plaintiff’s other claims.
5
V.
Conclusion And Recommendation
6
Based on the foregoing, it is HEREBY RECOMMENDED that:
7
1.
8
9
Defendants’ motion to dismiss, filed June 24, 2011, be GRANTED in part and
DENIED in part as stated herein;
2.
This action should proceed on Plaintiff’s third amended complaint, filed June 9,
10
2011, against
11
a.
Defendants Wenneker, Pazo, Tidwell, Chapman, Lopez, K. Todd, Metzen,
12
and Garza for retaliation in violation of the First Amendment as stated
13
herein;
14
b.
15
16
Amendment as stated herein;
3.
17
18
Defendants Garza and Jones for excessive force in violation of the Eighth
Plaintiff’s other claims which failed to state a claim, as stated herein, be dismissed
with prejudice;
4.
Plaintiff be granted twenty (20) days from the date of service of the district
19
judge’s order regarding these Findings and Recommendations in which to amend
20
his request for relief;
21
5.
22
23
Plaintiff’s remaining claims arising at KVSP be dismissed without prejudice to
filing in a new, separate action; and
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Defendants R. Blevins, M. Robinson, S. Hanson, McDill, Skeen, Sherrit, Newby,
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D. Zanchi, Arellano, Watson, Genova, L. Garcia, G. Garcia, J. Ramos, S.
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Hopkins, M. Dunlop, S. Buentempo, J. L. Peterson, D. White, V. McLaughlin, J.
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Gutierrez, Whitlach, Grannis, Tarnoff, Tallerico, J. Acebedo, Stewart, Epperson,
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J. Hernandez, Ostrander, Campagna, M. D. Biter, E. Negre, Matthew Cate, D.
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Lee, R. Keldgord, John W. Riches, Dennis L. Beck, Lawrence J. O’Neill, E.
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Flores, Kenneth Roost, D. Page, and T. S. Arlitz, be dismissed.
These Findings and Recommendations will be submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within thirty
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(30) days after being served with these Findings and Recommendations, the parties may file
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written objections with the Court. The document should be captioned “Objections to Magistrate
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Judge’s Findings and Recommendations.” The parties are advised that failure to file objections
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within the specified time may waive the right to appeal the District Court’s order. Martinez v.
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Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).
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IT IS SO ORDERED.
Dated:
3b142a
December 19, 2011
/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE
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