Gamez v. Gonzalez, et al.

Filing 137

ORDER for Plaintiff to Either: (1) FILE a Fourth Amended Complaint, or (2) NOTIFY the Court of his Willingness to Proceed only on the Claims Found Cognizable by the Court; Thirty Day Deadline to File Fourth Amended Complaint or Notify the Court of Willingness to Proceed signed by Magistrate Judge Gary S. Austin on 10/2/2013. (Attachments: # 1 Amended Complaint Form)(Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SERGIO ALEJANDRO GAMEZ,

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Plaintiff,

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1:08-cv-01113-LJO-GSA-PC
SCREENING ORDER
(Doc. 132.)

vs.
ORDER FOR PLAINTIFF TO EITHER:
F. GONZALEZ, et al.,
Defendants.

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(1)

FILE A FOURTH AMENDED
COMPLAINT, OR

(2)

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NOTIFY THE COURT OF HIS
WILLINGNESS TO PROCEED ONLY
ON THE CLAIMS FOUND
COGNIZABLE BY THE COURT

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THIRTY-DAY DEADLINE TO FILE
FOURTH AMENDED COMPLAINT OR
NOTIFY COURT OF WILLINGNESS TO
PROCEED

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I.

BACKGROUND

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Sergio Alejandro Gamez (APlaintiff@) is a state prisoner proceeding pro se and in forma

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pauperis with this civil rights action pursuant to 42 U.S.C. ' 1983. Plaintiff filed this action on

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August 1, 2008. (Doc. 1.) On September 1, 2011, the Court granted Defendants= motion for

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summary judgment and entered judgment in favor of Defendants, closing this action. (Docs.

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109, 110.)

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On September 16, 2011, Plaintiff appealed the district court’s judgment to the Ninth

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Circuit. (Doc. 111.) On July 25, 2012, the Ninth Circuit affirmed in part and vacated in part

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the district court=s judgment, and remanded the case to the district court. (Doc. 116.)1 On

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November 23, 2012, the Ninth Circuit entered the formal mandate for the July 25, 2012

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judgment. (Doc. 125.)

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As a result of the Ninth Circuit’s decision, Plaintiff’s remanded action proceeded on

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Plaintiff's Second Amended Complaint filed on April 1, 2009, against defendants F. Gonzalez

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(Warden, CCI), Captain S. Wright, N. Grannis (Chief of Inmate Appeals), K. Berkeler (Senior

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Special Agent), K. J. Allen (Appeals Examiner), M. Carrasco (Associate Warden, CCI),

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Lieutenant J. Gentry, and K. Sampson (Appeals Coordinator), on two new issues which were

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not present in the Second Amended Complaint: (1) Plaintiff=s Adue process claims concerning

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his 2010 re-validation as a gang associate,@ and (2) Plaintiff=s Aretaliation claims associated with

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the 2010 re-validation.” (Doc. 116.)

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On October 30, 2012, Plaintiff filed a motion for leave to amend the complaint and

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conduct further discovery. (Doc. 120.) On December 19, 2012, the court entered an order

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granting Plaintiff’s motion to amend, for the purpose of addressing the new due process and

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retaliation claims, and to add new defendants in relation to the new claims. (Doc. 128.) On

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January 13, 2013, Plaintiff filed the Third Amended Complaint, which is now before the court

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for screening. (Doc. 132.)

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II.

SCREENING REQUIREMENT

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The court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. ' 1915A(a).

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The Ninth Circuit affirmed the district court's dismissal of Plaintiff's equal protection "class of one"
claims and the district court's decision to grant summary judgment to Defendants on Plaintiff's contentions that his
due process rights were violated by the failure to review his gang status prior to 2009. (Doc. 116 at 1-2.)
However, the Ninth Circuit found a genuine dispute of material fact as to whether the evidence used by
Defendants in support of Gamez's 2010 re-validation had "sufficient indicia of reliability" to meet the "some
evidence" standard as required to satisfy due process. (Id. at 2.) The Court vacated the district court's summary
judgment on Plaintiff=s due process claims relating to his 2010 re-validation as a prison gang associate and
remanded for further proceedings. (Id. at 3.) The Court also vacated the dismissal of Plaintiff's retaliation claim
associated with the 2010 re-validation and remanded for the district court to consider the claim in the first instance.
(Id. at 3.)
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The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are

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legally Afrivolous 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). ANotwithstanding 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. ' 1915(e)(2)(B)(ii).

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A complaint is required to contain Aa short and plain statement of the claim showing

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that the pleader is entitled to relief . . . .@ Fed. R. Civ. P. 8(a)(2). Detailed factual allegations

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are not required, but A[t]hreadbare recitals of the elements of a cause of action, supported by

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mere conclusory statements, do not suffice.@ Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct.

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1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955

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(2007)). While a plaintiff=s allegations are taken as true, courts Aare not required to indulge

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unwarranted inferences,@ Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009)

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(internal quotation marks and citation omitted). Plaintiff must set forth Asufficient factual

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matter, accepted as true, to >state a claim to relief that is plausible on its face.=@ Iqbal 556 U.S.

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at 678. While factual allegations are accepted as true, legal conclusions are not. Id. The mere

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possibility of misconduct falls short of meeting this plausibility standard. Id. at 678-79; Moss

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v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

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III.

SUMMARY OF THIRD AMENDED COMPLAINT

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Plaintiff is presently incarcerated at Corcoran State Prison in Corcoran, California. The

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events at issue in the Third Amended Complaint allegedly occurred at the California

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Correctional Institution (CCI) in Tehachapi, California, when Plaintiff was incarcerated there.

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Plaintiff names as defendants K. Holland (Warden), F. Gonzalez (Former Warden), J. Tyree

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(Institutional Gang Investigator (“IGI”)), J. Gentry (Former IGI), G. Adame (Assistant IGI),

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and D. Jakabosky (Special Agent, Special Services Unit (SSU)). Plaintiff’s factual allegations

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follow.

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On October 2, 2007, the Institutional Classification Committee (ICC) found

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inconsistencies with the source items used against Plaintiff for gang validation in 2003, and
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found no documented gang activity in the last incarcerated year. The case was referred to the

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IGI and defendant J. Gentry for a review. Gentry did not comply with the request, and

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defendant F. Gonzalez, who was in charge at CCI, never followed up. Plaintiff’s case was

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bypassed and he was retained in the Security Housing Unit (SHU).

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On September 22, 2009, the ICC noticed that their request for review had not been

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acted upon, and again referred the matter to the IGI. Again, Gentry did not comply, and

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defendant Gonzalez did not follow up. Plaintiff’s case was again bypassed and Plaintiff was

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retained in the SHU.

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On October 7, 2009, the Classification Staff Representative (CSR) noted that a review

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was required for Plaintiff on October 19, 2009. IGI did not comply with the request, and

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defendant Gonzalez never inquired or followed up on the matter. Plaintiff’s case was again

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bypassed and Plaintiff was retained in the SHU.

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On February 10, 2010, Plaintiff appeared before the Board of Prison Hearings for the

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ninth time for parole consideration. He was denied parole, in part because of his unresolved

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prison gang validation, and held back for an additional three years. The parole denial was due

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to defendant Gonzalez’ inaction, and defendant Gentry’s failure to process the ICC’s request

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out of retaliation against Plaintiff for filing a civil complaint against him for denying Plaintiff

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access to the courts.

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On February 16, 2010, Plaintiff appeared before the Board of Prison Hearings, and it

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was again noticed that IGI defendant Gentry had failed to comply with any of the requests to

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review Plaintiff’s gang status. IGI did not comply with the request, and defendant Gonzalez

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never followed up. Plaintiff’s case was again bypassed and Plaintiff was further retained in the

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SHU.

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On February 24, 2010, after the court issued the Discovery/Scheduling Order in

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Plaintiff’s civil case, under the instructions of defendant Gentry, Assistant IGI G. Adame

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conducted Plaintiff’s overdue status hearing.

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memorandum dated April 7, 2009 and authored by counselor L. Phillips. Plaintiff was allowed

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a day to make a written response addressing the document.
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Adame found questionable a confidential

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On February 25, 2010, defendant Adame came to Plaintiff’s cell and collected the

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written response, in which Plaintiff challenged the credibility of the source. After reviewing all

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available documents, defendant Adame concluded there was not sufficient evidence to find that

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Plaintiff was an associate of a prison gang, made a written finding, and provided a copy to

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Plaintiff.

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Between February 25, 2010 and March 8, 2010, defendants Gentry and Adame

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conspired to retaliate against Plaintiff for filing a civil complaint against them. The CDCR

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altered the February 25, 2010 chrono by removing the word “not” from the phrase “There is not

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sufficient evidence,” and arranged for defendant D. Jakabosky to rubber stamp it so that it

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could be presented to the federal court as evidence. (Doc. 132 at 7 ¶11.)

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Between March 8, 2010 and March 15, 2010, defendants Gentry and Adame conspired,

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requesting defendant Jakabosky to re-validate Plaintiff as an active associate of a prison gang

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using faulty documents, in retaliation for Plaintiff’s ongoing litigation against the CDCR. On

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March 15, 2010, defendant Jakabosky rubber stamped the request and re-validated Plaintiff as

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an active associate of a prison gang. Plaintiff alleges that defendant Jakabosky works together

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with IGI’s to validate inmates as associates of prison gangs, in exchange for his office being

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called upon to testify as expert witnesses in cases relating to prison gangs.

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On or about June 23, 2010, Defendants submitted to the court, for in camera review, a

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copy of the re-validation document, as a means of interfering with justice, to silence Plaintiff

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from further proceeding with his civil complaint.

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On August 20, 2010, Magistrate Judge Peter Lewis ordered Defendants to produce

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documents for in camera review. Defendants only provided confidential reports and the 2010

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re-validation, for the purpose of obstructing federal judicial proceedings and in retaliation for

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Plaintiff having filed the civil action, in hopes of having Plaintiff cease from proceeding with

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legal action.

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After properly exhausting his CDCR administrative remedies relating to Plaintiff’s 2010

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re-validation, Plaintiff filed a state habeas corpus action seeking relief. On September 21,

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2012, the California Court of Appeal, in Fifth Appellate District case number F061976, granted
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Plaintiff relief and directed the CDCR to (1) void the 2010 re-validation of Plaintiff as an active

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associate of the Mexican Maria prison gang, (2) cease classifying Plaintiff as an active gang

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associate based on the 2010 re-validation, and (3) cease housing Plaintiff in the SHU based on

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the 2010 re-validation.

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On October 8, 2012, defendant Adame provided Plaintiff with a CDC 1030 confidential

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information disclosure form, and told Plaintiff he was being re-validated because of the two

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court orders and had until the next morning to oppose it. This was in retaliation for the Ninth

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Circuit’s order remanding this case back to the district court, and the state court’s grant of

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relief. The 1030 form was altered from a form that had been served on Plaintiff on August 16,

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2011, and which had been rejected as meeting the source item requirement when the IGI

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attempted to use such form to re-validate selected inmates. On October 9, 2010, correctional

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officer M. Gonzales retrieved Plaintiff’s opposition for Assistant IGI Adame.

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On October 18, 2012, defendants Adame and Tyree conspired by agreeing to submit a

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validation package against Plaintiff, rather than honoring a court order to release him to the

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general population. Said acts served no legitimate penal goals, further delayed Plaintiff’s SHU

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release, and caused him to be ineligible for parole and deprived of general population

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privileges.

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Between October 18, 2012 and October 19, 2012, defendants Tyree and Adame

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contacted defendant Jakabosky and again conspired to re-validate Plaintiff as an active

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associate of a prison gang on faulty documents, in retaliation for their previous validation

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having been overturned. On October 19, 2012, Jakabosky rubber stamped the request and re-

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validated Plaintiff as an active associate of a prison gang. Plaintiff alleges that defendants

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Tyree, Adame, and Jakabosky have worked in concert with each other for the past two years to

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rubber stamp prison gang validations as a way to secure their jobs within the CDCR.

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On December 5, 2012, Plaintiff was assigned to the SHU for an additional six years

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based on the retaliatory re-validation by defendants Adame, Tyree, and Jakabosky. Thus,

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Plaintiff is no longer eligible for parole, phone calls, educational programs, contact visits, self

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help programs, and other freedoms enjoyed by those inmates in the general population.
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Defendants assigned Plaintiff to the SHU for an additional six years based on someone

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else’s actions after already having been confined there for ten years.

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narrowing back discs which cause chronic pain due to lack of movement and/or proper

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medication. Plaintiff could be housed in the general population as a current active associate to

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a gang.

Plaintiff has two

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Plaintiff’s second re-validation did not contain the amount of evidence that is required

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to satisfy due process. The record did not contain information establishing the reliability of the

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confidential source. The 2012 validation does not meet the due process requirements for

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source items.

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Both validations are in retaliation against Plaintiff for having filed a civil

complaint and did not advance any legitimate goals of the CDCR.

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Defendant F. Gonzalez was directly responsible for the selection of the CCI’s and IGI

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in 2010 and to ascertain that gang involved or related occurrences and information were

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properly brought to the attention of appropriate personnel, and he failed to do so or cast a blind

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eye.

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Defendant K. Holland was directly responsible for the selection of the CCI’s and IGI in

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2012 and to ascertain that gang involved or related occurrences and information were properly

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brought to the attention of appropriate personnel, and she failed to do so or cast a blind eye

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towards complaints of falsification of documents against her staff.

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Plaintiff requests monetary damages, declaratory and injunctive relief, and costs of suit.
IV.

PLAINTIFF’S CLAIMS
The Civil Rights Act under which this action was filed provides:
Every person who, under color of [state law] . . . subjects, or
causes to be subjected, any citizen of the United States . . . to the
deprivation of any rights, privileges, or immunities secured by
the Constitution . . . shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for
redress.

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42 U.S.C. ' 1983. ASection 1983 . . . creates a cause of action for violations of the federal

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Constitution and laws.@ Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997)

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(internal quotations omitted). ATo the extent that the violation of a state law amounts to the
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deprivation of a state-created interest that reaches beyond that guaranteed by the federal

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Constitution, Section 1983 offers no redress.@ Id.

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To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted

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under color of state law and (2) the defendant deprived him of rights secured by the

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Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir.

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2006). AA person >subjects= another to the deprivation of a constitutional right, within the

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meaning of section 1983, if he does an affirmative act, participates in another=s affirmative acts,

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or omits to perform an act which he is legally required to do that causes the deprivation of

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which complaint is made.@ Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). AThe

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requisite causal connection can be established not only by some kind of direct, personal

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participation in the deprivation, but also by setting in motion a series of acts by others which

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the actors knows or reasonably should know would cause others to inflict the constitutional

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injury.@ Id. at 743-44.

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A.

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Plaintiff may not supplement the complaint with allegations of events occurring after

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August 1, 2008, the date the original complaint was filed, without leave of court. Fed. R. Civ.

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P. 15(d). A supplemental complaint is a complaint which adds allegations to the complaint of

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events occurring after the original complaint was filed. (Id.) Under Rule 15(d), Athe court

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may, on just terms, permit a party to serve a supplemental pleading setting out any transaction,

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occurrence, or event that happened after the date of the pleading to be supplemented.@ Id.

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Thus, a party may only file a supplemental complaint with leave of court.

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considering whether to allow a supplemental complaint, the Court considers factors such as

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whether allowing supplementation would serve the interests of judicial economy; whether there

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is evidence of delay, bad faith or dilatory motive on the part of the movant; whether

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amendment would impose undue prejudice upon the opposing party; and whether amendment

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would be futile. See San Luis & Delta-Mendota Water Authority v. United States Department

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of the Interior, 236 F.R.D. 491, 497 (E.D. Cal. 2006) (citing Keith v. Volpe, 858 F.2d 467 (9th

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Claims Arising from 2012 Re-validation

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Id.

When

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Cir. 1988), Foman v. Davis, 371 U.S. 178 (1962), and Planned Parenthood of S. Ariz. v. Neely,

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130 F.3d 400 (9th Cir. 1997)).

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The court’s order of December 19, 2012 granted Plaintiff leave to file a Third Amended

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Complaint, (Doc. 128), pursuant to the Ninth Circuit’s decision remanding this action for the

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district court to consider two new issues: (1) Plaintiff’s “due process claims concerning his

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2010 re-validation as a gang associate,” and (2) Plaintiff’s “retaliation claims associated with

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the 2010 re-validation.” (Doc. 128 at 3:2-6.) The court’s order of December 19, 2012 granted

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Plaintiff “thirty days in which to file a Third Amended Complaint addressing these two new

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issues.” (Id. at 2:5-6) (emphasis added). Plaintiff was not granted leave to add allegations of

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events occurring after the 2010 re-validation, unless related to retaliation associated with the

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2010 re-validation. Nonetheless, the court shall allow Plaintiff’s allegations of later-occurring

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events in the Third Amended Complaint.

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In the Third Amended Complaint, Plaintiff has added allegations concerning his gang

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re-validation of October 19, 2012. Plaintiff alleges that based on the 2012 re-validation, which

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was retaliatory, he was assigned to the SHU for an additional six years by defendants Adame,

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Tyree, and Jakabosky, causing Plaintiff to lose his eligibility for parole, phone calls,

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educational programs, contact visits, self help programs, and other freedoms enjoyed by those

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inmates in the general population. (Third Amd Cmp, Doc. 132 at 10 ¶20.)

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The court finds these 2012 allegations to be a continuation of Plaintiff’s allegations

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against defendants for improperly validating him as a gang associate beginning in 2003.

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Plaintiff has added four new defendants in the Third Amended Complaint -- Holland, Tyree,

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Adams, and Jakabosky -- and allegations against them concerning the 2010 and 2012 re-

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validations. Because the court finds continuity between the 2010 allegations and the 2012

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allegations, it serves judicial economy to allow Plaintiff to litigate all of these allegations in one

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lawsuit, rather than in multiple lawsuits. Allowing supplementation of the complaint with the

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2012 events serves the same purpose as the Ninth Circuit’s instruction for the court to consider

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allegations of 2010 events in this action filed in 2008. The court finds no evidence of delay,

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bad faith, or dilatory motive on Plaintiff’s part. With respect to possible prejudice to the
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defendants, the court finds that adding later-occurring but related claims and defendants at this

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stage of the proceedings is not unduly prejudicial, considering that Defendants have already

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consented to amendment of the complaint, the addition of two new defendants, and further

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discovery. (Doc. 121.) Therefore, Plaintiff is granted leave of court nunc pro tunc to include

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allegations, claims, and new defendants in the Third Amended Complaint associated with his

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2012 re-validation.

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B.

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Plaintiff alleges that defendants conspired to retaliate against him and violate Plaintiff’s

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rights. In the context of conspiracy claims brought pursuant to section 1983, a complaint must

Conspiracy

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Aallege [some] facts to support the existence of a conspiracy among the defendants.@ Buckey v.

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County of Los Angeles, 968 F.2d 791, 794 (9th Cir. 1992); Karim-Panahi v. Los Angeles

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Police Department, 839 F.2d 621, 626 (9th Cir. 1988). Plaintiff must allege that defendants

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conspired or acted jointly in concert and that some overt act was done in furtherance of the

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conspiracy. Sykes v. State of California, 497 F.2d 197, 200 (9th Cir. 1974).
A conspiracy claim brought under section 1983 requires proof of A>an agreement or

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meeting of the minds to violate constitutional rights,=@ Franklin v. Fox, 312 F.3d 423, 441 (9th

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Cir. 2001) (quoting United Steel Workers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1540-

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41 (9th Cir. 1989) (citation omitted)), and an actual deprivation of constitutional rights, Hart v.

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Parks, 450 F.3d 1059, 1071 (9th Cir. 2006) (quoting Woodrum v. Woodward County,

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Oklahoma, 866 F.2d 1121, 1126 (9th Cir. 1989)). A>To be liable, each participant in the

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conspiracy need not know the exact details of the plan, but each participant must at least share

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the common objective of the conspiracy.=@ Franklin, 312 F.3d at 441 (quoting United Steel

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Workers of Am., 865 F.2d at 1541).

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Plaintiff has not alleged any facts in the Third Amended Complaint supporting the

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allegation that any of the defendants entered into an agreement or had a meeting of the minds to

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violate Plaintiff's constitutional rights. It is not enough to allege that defendants “agreed.”

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Therefore, Plaintiff fails to state a claim for conspiracy.

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C.

Supervisory Liability and Personal Participation – Defendants Gonzalez,
Holland, and Jakabosky

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Plaintiff names Warden F. Gonzalez, Warden K. Holland, and Special Agent D.

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Jakabosky as defendants in the Third Amended Complaint. Plaintiff is advised that liability

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may not be imposed on supervisory personnel under the theory of respondeat superior, as each

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defendant is only liable for his or her own misconduct. Iqbal, 556 U.S. at 677; Ewing v. City of

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Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009). A supervisor may be held liable only if he or

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she Aparticipated in or directed the violations, or knew of the violations and failed to act to

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prevent them.@ Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); accord Starr v. Baca, 633

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F.3d 1191, 1197 (9th Cir. 2011); Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009);

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Preschooler II v. Clark County School Board of Trustees, 479 F.3d 1175, 1182 (9th Cir. 2007);

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Harris v. Roderick, 126 F.3d 1189, 1204 (9th Cir. 1997). Under section 1983, Plaintiff must

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demonstrate that each named defendant personally participated in the deprivation of his rights.

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Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002) (emphasis added). Section 1983 plainly

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requires that there be an actual connection or link between the actions of the defendants and the

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deprivation alleged to have been suffered by plaintiff. See Monell v. Department of Social

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Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976).

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Plaintiff alleges that Warden F. Gonzalez and Warden K. Holland were directly

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responsible for the selection of the CCI’s and IGI in 2010 and 2012, respectively, and to

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ascertain that gang involved or related occurrences and information were properly brought to

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the attention of appropriate personnel, and they failed to do so or cast a blind eye towards

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complaints of falsification of documents against their staff. However, Plaintiff has not alleged

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specific facts demonstrating that Warden F. Gonzalez or Warden K. Holland directly and

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personally participated in the violation of Plaintiff’s constitutional rights. The mere possibility

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of misconduct falls short of meeting the requisite plausibility standard. Iqbal, 556 U.S. at 678-

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79; Moss, 572 F.3d at 969.

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Plaintiff alleges that defendant D. Jakabosky, Special Agent, SSU, in the Sacramento

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Office “rubber-stamped” documents authored by defendants Gentry, Tyree, and Adame, and

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worked together with IGI’s to validate inmates as associates of prison gangs, in exchange for
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his office being called upon to testify as expert witnesses in cases relating to prison gangs.

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These allegations are vague and do not include specific facts linking defendant Jakabosky to

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the deprivation of Plaintiff’s rights.

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Based on the foregoing, the court finds that Plaintiff fails to state any cognizable claims
against defendants Warden F. Gonzalez, Warden K. Holland, or Special Agent D. Jakabosky.

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D.

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1.

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Due Process B Sufficiency of Evidence for Gang Validation
Gang Validation Process

An inmate may be identified by CDCR staff as a potential gang member or associate
based on his behavior.

An Institutional Gang Investigator (AIGI@), who generally has

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experience with gangs, investigates the inmate=s possible gang activities and determines

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whether there is sufficient evidence to validate the inmate. 15 Cal.Code Regs. ' 3378(c). The

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IGI also interviews the inmate to allow him to rebut the evidence supporting the contemplated

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validation.

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Under California State Regulations, an inmate may be validated as a member or

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associate of a gang based on a minimum of three or more source items indicating gang activity,

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such as self-admission, writings, tattoos, photos, information from informants, and association

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or communication with other gang members or associates. 15 Cal.Code Regs. ' 3378(c)(3),

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(4).

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validated, assessed an indeterminate administrative segregation term in the Secured Housing

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Unit. Id.; 15 Cal.Code Regs ' 3341.5(c)(2). Once validated as a gang member/associate, an

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inmate can be released under several circumstances, the most common of which are debriefing

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(i.e., disassociating himself from the gang), inactivity in the gang and release from custody. 15

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Cal.Code Regs. '' 3378(c)(2)(5); 3341.5(c)(4).

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The inmate is normally placed in administrative segregation pending review and if

2.

Legal Standard

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Interests that are procedurally protected by the Due Process Clause may arise from the

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Due Process Clause itself and the laws of the states. Hewitt v. Helms, 459 U.S. 460, 466

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(1983) overruled, in part, on other grounds by Sandin v. Conner, 515 U.S. 472, 483-484 (1995);

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Meachum v. Fano, 427 U.S. 215, 223-27, 96 S.Ct. 2 532 (1976). The Ninth Circuit has held
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that the hardship associated with administrative segregation is not so severe as to violate Due

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Process. See Toussaint v. McCarthy, 801 F.2d. 1080, 1091-91 (9th Cir. 1986). However,

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changes in the conditions of confinement may amount to a deprivation of a state-created and

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constitutionally protected liberty interest, provided the liberty interest in question is one of Areal

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substance@ and where the restraint Aimposes an atypical and significant hardship on the inmate

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in relation to the ordinary incidents of prison life.@ Sandin, 515 U.S. at 477.

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The placement of an inmate in the SHU indeterminately may amount to a deprivation of

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a liberty interest of Areal substance@ within the meaning of Sandin. See Wilkinson v. Austin,

9

125 S.Ct. 2384, 2394-95, 162 L.Ed.2d. 174 (2005). Further, the assignment of validated gang

10

members to the SHU is an administrative measure rather than a disciplinary measure, and is

11

Aessentially a matter of administrative segregation.@ Bruce v. Ylst, 351 F.3d 1283, 1287 (9th

12

Cir. 2003) (quoting Munoz v. Rowland, 104 F.3d 1096, 1098 (9th Cir. 1997)). As such,

13

plaintiff is entitled to the minimal procedural protections set forth in Toussaint, such as notice,

14

an opportunity to be heard and periodic review. Bruce, 351 F.3d at 1287 (citing Toussaint, 801

15

F.2d at 1100). Due process also requires that there be an evidentiary basis for the prison

16

officials' decision to place an inmate in segregation for administrative reasons. Superintendent

17

v. Hill, 472 U.S. 445, 455, 105 S.Ct. 2768 (1985); Toussaint, 801 F.2d at 1104-05. This

18

standard is met if there is "some evidence" from which the conclusion of the administrative

19

tribunal could be deduced. Id. at 1105. The standard is only Aminimally stringent@ and the

20

relevant inquiry is whether there is any evidence in the record that could support the conclusion

21

reached by the prison decision-makers. Cato v. Rushen, 824 F.2d 703, 705 (9th Cir.1987).

22

The "some evidence" standard applies to an inmate's placement in the SHU for gang affiliation.

23

See Bruce, 351 F.3d at 1287-88.

24

In addition, there is authority for the proposition that the evidence relied upon to

25

confine an inmate to the SHU for gang affiliation must have "some indicia of reliability" to

26

satisfy due process requirements.

27

(N.D.Cal.1995); see also, Toussaint v. McCarthy, 926 F.2d at 803, cert. denied, 502 U.S. 874,

28

112 S.Ct. 213 (1991) (“Toussaint VI”) (considering accuracy of polygraph results when used

Madrid v. Gomez, 889 F.Supp. 1146, 1273-74

13

1

as evidence to support placement in administrative segregation); Cato, 824 F.2d at 705

2

(evidence relied upon by a prison disciplinary board must have "some indicia of reliability").

3

When this information includes statements from confidential informants, as is often the case,

4

the record must contain Asome factual information from which the committee can reasonably

5

conclude that the information was reliable.@ Zimmerlee v. Keeney, 831 F.2d 183, 186 (9th

6

Cir.1987), cert. denied, 487 U.S. 1207, 108 S.Ct. 2851 (1988). The record must also contain Aa

7

prison official's affirmative statement that safety considerations prevent the disclosure of the

8

informant's name.@ Id. Defendants bear the burden of showing Asome evidence@ in the record to

9

support an administrative segregation decision and that evidence must have some indicia of

10

reliability.@ Toussaint v. Rowland, 711 F.Supp. 536, 542 (N.D. Cal. 1989) (AToussaint V@),

11

aff=d in part, rev=d in part sub nom, Toussaint, 926 F.2d 800 (AToussaint VI@), cert. denied, 502

12

U.S. 874, 112 S.Ct. 213 (1991).

13
14

The court finds that Plaintiff has stated cognizable due process claims against
defendants Tyree, Gentry, and Adame.

15

E.

16

As discussed by the Ninth Circuit in Watison v. Carter:

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18
19
20
21
22
23
24
25
26
27
28

Retaliation

“Prisoners have a First Amendment right to file
grievances against prison officials and to be free from retaliation
for doing so. Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir.
2009). A retaliation claim has five elements. Id. First, the
plaintiff must allege that the retaliated-against conduct is
protected. The filing of an inmate grievance is protected conduct.
Rhodes v. Robinson, 408 F.3d 559, 568 (9th Cir. 2005).
Second, the plaintiff must claim the defendant took
adverse action against the plaintiff. Id. at 567. The adverse
action need not be an independent constitutional violation. Pratt
v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995). “[T]he mere
threat of harm can be an adverse action....” Brodheim, 584 F.3d
at 1270.
Third, the plaintiff must allege a causal connection
between the adverse action and the protected conduct. Because
direct evidence of retaliatory intent rarely can be pleaded in a
complaint, allegation of a chronology of events from which
retaliation can be inferred is sufficient to survive dismissal. See
Pratt, 65 F.3d at 808 (“timing can properly be considered as
circumstantial evidence of retaliatory intent”); Murphy v. Lane,
833 F.2d 106, 108–09 (7th Cir. 1987).
14

Fourth, the plaintiff must allege that the “official's acts
would chill or silence a person of ordinary firmness from future
First Amendment activities.” Robinson, 408 F.3d at 568 (internal
quotation marks and emphasis omitted). “[A] plaintiff who fails
to allege a chilling effect may still state a claim if he alleges he
suffered some other harm,” Brodheim, 584 F.3d at 1269, that is
“more than minimal,” Robinson, 408 F.3d at 568 n.11. That the
retaliatory conduct did not chill the plaintiff from suing the
alleged retaliator does not defeat the retaliation claim at the
motion to dismiss stage. Id. at 569.

1
2
3
4
5
6

Fifth, the plaintiff must allege “that the prison authorities'
retaliatory action did not advance legitimate goals of the
correctional institution....” Rizzo v. Dawson, 778 F.2d 527, 532
(9th Cir.1985). A plaintiff successfully pleads this element by
alleging, in addition to a retaliatory motive, that the defendant's
actions were arbitrary and capricious, id., or that they were
“unnecessary to the maintenance of order in the institution,”
Franklin v. Murphy, 745 F.2d 1221, 1230 (9th Cir.1984).”

7
8
9
10
11
12
13

Watison v. Carter, 668 F.3d 1108, 1114-15 (9th Cir. 2012).
The court finds that Plaintiff states cognizable claims against defendants Tyree, Gentry,
and Adame for retaliation against Plaintiff in violation of the First Amendment.

14

F.

15

Plaintiff alleges that defendants were deliberately indifferent to his medical needs when

16

they housed him in the SHU, because Plaintiff had two narrowing back disks which cause

17

chronic pain due to lack of movement and/or proper medication.

Medical Claim

18

A[T]o maintain an Eighth Amendment claim based on prison medical treatment, an

19

inmate must show >deliberate indifference to serious medical needs.=@ Jett v. Penner, 439 F.3d

20

1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285 (1976)).

21

The two-part test for deliberate indifference requires the plaintiff to show (1) A>a serious

22

medical need= by demonstrating that >failure to treat a prisoner=s condition could result in

23

further significant injury or the unnecessary and wanton infliction of pain,=@ and (2) Athe

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defendant=s response to the need was deliberately indifferent.@ Jett, 439 F.3d at 1096 (quoting

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McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds by WMX

26

Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc) (internal quotations

27

omitted)). Deliberate indifference is shown by Aa purposeful act or failure to respond to a

28

prisoner=s pain or possible medical need, and harm caused by the indifference.@ Id. (citing
15

Deliberate indifference may be manifested Awhen prison

1

McGuckin, 974 F.2d at 1060).

2

officials deny, delay or intentionally interfere with medical treatment, or it may be shown by

3

the way in which prison physicians provide medical care.@ Id. Where a prisoner is alleging a

4

delay in receiving medical treatment, the delay must have led to further harm in order for the

5

prisoner to make a claim of deliberate indifference to serious medical needs.

6

Shapely v. Nevada Bd. of State Prison Comm=rs, 766 F.2d 404, 407 (9th Cir. 1985)).

Id. (citing

7

ADeliberate indifference is a high legal standard.@ Toguchi v. Chung, 391 F.3d 1051,

8

1060 (9th Cir. 2004). AUnder this standard, the prison official must not only >be aware of the

9

facts from which the inference could be drawn that a substantial risk of serious harm exists,= but

10

that person >must also draw the inference.=@ Id. at 1057 (quoting Farmer v. Brennan, 511 U.S.

11

825, 837, 114 S.Ct. 1970 (1994)). A>If a prison official should have been aware of the risk, but

12

was not, then the official has not violated the Eighth Amendment, no matter how severe the

13

risk.=@ Id. (quoting Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir.

14

2002)).

15

constitutional deprivation under the Eighth Amendment. Id. at 1060. A[E]ven gross negligence

16

is insufficient to establish a constitutional violation.@ Id. (citing Wood v. Housewright, 900

17

F.2d 1332, 1334 (9th Cir. 1990)).

AA showing of medical malpractice or negligence is insufficient to establish a

18

Plaintiff fails to allege facts showing that any of the defendants knew about Plaintiff’s

19

serious medical need and disregarded it, knowing there was a substantial risk of serious harm to

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Plaintiff. Therefore, Plaintiff fails to state an Eighth Amendment medical claim.

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G.

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Plaintiff brings claims against defendants for failure to train and supervise employees.

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Plaintiff is informed that violation of state tort law, such as negligence, is not sufficient to state

24

a claim for relief under ' 1983. To state a claim under ' 1983, there must be a deprivation of

25

federal constitutional or statutory rights. See Paul v. Davis, 424 U.S. 693 (1976). Although the

26

court may exercise supplemental jurisdiction over state law claims, Plaintiff must first have a

27

cognizable claim for relief under federal law. See 28 U.S.C. ' 1367.

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///

State Law Claims

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1

Pursuant to 28 U.S.C. ' 1367(a), in any civil action in which the district court has

2

original jurisdiction, the district court Ashall have supplemental jurisdiction over all other

3

claims in the action within such original jurisdiction that they form part of the same case or

4

controversy under Article III [of the Constitution],@ with specific exceptions.

5

jurisdiction over state claims exists when the federal claim is sufficiently substantial to confer

6

federal jurisdiction, and there is a 'common nucleus of operative fact between the state and

7

federal claims.'" Brady v. Brown, 51 F.3d 810, 816 (9th Cir. 1995) (quoting Gilder v. PGA

8

Tour, Inc., 936 F.2d 417, 421 (9th Cir.1991)). A[O]nce judicial power exists under ' 1367(a),

9

retention of supplemental jurisdiction over state law claims under 1367(c) is discretionary.@

10

Acri v. Varian Assoc., Inc., 114 F.3d 999, 1000 (9th Cir. 1997). The Supreme Court has

11

cautioned that Aif the federal claims are dismissed before trial, . . . the state claims should be

12

dismissed as well.@ United Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966).

"Pendent

13

In this instance, the Court has found cognizable ' 1983 claims in the Third Amended

14

Complaint against defendants Gentry, Tyree, and Adame. Therefore, at this juncture, the Court

15

shall exercise supplemental jurisdiction over Plaintiff=s state tort law claims that form part of

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the same case or controversy as Plaintiff=s cognizable federal claims.2

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V.

CONCLUSION AND ORDER

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For the reasons set forth above, the Court finds that Plaintiff states cognizable claims in

19

the Third Amended Complaint upon which relief may be granted under ' 1983 against

20

defendants Gentry, Tyree, and Adame. However, Plaintiff fails to state any other claims upon

21

which relief can be granted under section 1983 against any of the defendants. Plaintiff shall be

22

required to either file a Fourth Amended Complaint, or notify the Court of his willingness to

23

proceed only on the retaliation and due process claims against defendants Gentry, Tyree, and

24

Adame. Should Plaintiff choose to proceed only on the retaliation and due process claims, the

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///

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27
28

2
At this stage of the proceedings, the Court makes no determination about the viability of Plaintiff=s state
tort claims.

17

1

court will begin the process to initiate service upon defendants Gentry, Tyree, and Adame by

2

the United States Marshal.

3

Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend >shall be

4

freely given when justice so requires.=@ The Court will provide Plaintiff with time to file an

5

amended complaint curing the deficiencies identified above should he wish to do so. Plaintiff

6

is granted leave to file a Fourth Amended Complaint within thirty days. Noll v. Carlson, 809

7

F.2d 1446, 1448-49 (9th Cir. 1987).

8

Should Plaintiff choose to amend the complaint, the Fourth Amended Complaint should

9

be brief, Fed. R. Civ. P. 8(a), but must state what each named defendant did that led to the

10

deprivation of Plaintiff=s constitutional or other federal rights, Iqbal, 556 U.S. at 678; Jones,

11

297 F.3d at 934. Plaintiff must set forth Asufficient factual matter . . . to >state a claim that is

12

plausible on its face.=@ Id. at 678 (quoting Twombly, 550 U.S. at 555). There is no respondeat

13

superior liability, and each defendant is only liable for his or her own misconduct. Iqbal at

14

677. Plaintiff must demonstrate that each defendant personally participated in the deprivation

15

of his rights. Jones, 297 F.3d at 934 (emphasis added).

16

Plaintiff should note that although he has been given the opportunity to amend, it is not

17

for the purposes of adding new defendants for unrelated issues. In addition, Plaintiff should

18

take care to include only those claims that have been administratively exhausted. Plaintiff is

19

not granted leave to add allegations of events occurring after the 2012 re-validation not directly

20

related to the 2012 re-validation.

21

If Plaintiff decides to file an amended complaint, he is reminded that an amended

22

complaint supercedes the original complaint, Lacey v. Maricopa County, 693 F. 3d 896, 907

23

n.1 (9th Cir. Aug., 29, 2012)(en banc), and it must be complete in itself without reference to the

24

prior or superceded pleading. Local Rule 220. Once an amended complaint is filed, the

25

original complaint no longer serves any function in the case. Therefore, in an amended

26

complaint, as in an original complaint, each claim and the involvement of each defendant must

27

be sufficiently alleged. The amended complaint, if any, should be clearly and boldly titled

28

///
18

1

AFourth Amended Complaint,@ refer to the appropriate case number, and be an original signed

2

under penalty of perjury.

3

Based on the foregoing, it is HEREBY ORDERED that:

4

1.

The Clerk=s Office shall send Plaintiff a civil rights complaint form;

5

2.

Within thirty (30) days from the date of service of this order, Plaintiff shall

6

either:

7

(1)

8

File a Fourth Amended Complaint curing the deficiencies identified in
this order, or

9

(2)

Notify the Court in writing that he does not wish to file an amended

10

complaint and is instead willing to proceed only on the retaliation and

11

due process claims against defendants Gentry, Tyree, and Adame;

12

3.

Should Plaintiff choose to amend the complaint, Plaintiff shall caption the

13

amended complaint AFourth Amended Complaint@ and refer to the case number

14

1:08-cv-01113-LJO-GSA-PC; and

15

4.

16

If Plaintiff fails to comply with this order, this action will be dismissed for
failure to comply with a court order.

17
18
19
20

IT IS SO ORDERED.
Dated:

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22
23

October 2, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

6i0kij8d

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