Quezada v. Hedgpeth et al

Filing 19

ORDER, signed by District Judge Frank R. Zapata on 7/2/2009. It is ORDERED: Plaintiff's June 1, 2009 Motion to Rectify Administrative Remedies in Second Amended Complaint (Doc. 17 ) is granted; the exhibit attached to the Motion to Rect ify is substituted for page 5 of the Second Amended Complaint. Counts I, II, and III of Second Amended Complaint and Defendant Grannis are dismissed without prejudice. Defendants Hedgpeth, Flores, Nipper, and Soto must answer Counts I and II of the Second Amended Complaint, and Defendants Hedgpeth and Soto must also answer Count III of the Second Amended Complaint. The Clerk of Court must send Plaintiff a service packet. (Enclosed: (1) Copy of Second Amended Complaint 18 , (1) copy of Motion to Rectify Administrative Remedies 17 , (1) Copy of this Order 19 , (1) Notice of Submission of Documents and instruction form, (4) blank summons and (4) blank USM-285 forms.) (Service Documents Due By: 8/5/2009) (Scrivner, E)

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I N THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF CALIFORNIA

Alvaro Quezada, Plaintiff, vs. A. Hedgpeth, et al., Defendants.

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N o . CV 1-08-1404-FRZ ORDER

P la in tiff Alvaro Quezada, who is confined in the Kern Valley State Prison, filed a pro s e civil rights Complaint pursuant to 42 U.S.C. § 1983. On March 2, 2009, the Court d is m is s e d the Complaint for failure to comply with Rules 8 and 10 of the Federal Rules of C ivil Procedure. Plaintiff then filed a First Amended Complaint, which the Court dismissed w ith leave to amend. On June 1, 2009, Plaintiff filed a Second Amended Complaint (Doc. # 1 8 ). The Court will order Defendants Hedgpeth, Flores, Nipper, and Soto to answer Counts I, II, and III of the Second Amended Complaint and will dismiss the remaining Defendant w ith o u t prejudice. I. Statutory Screening of Prisoner Complaints T h e Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised c la im s that are legally frivolous or malicious, that fail to state a claim upon which relief may

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b e granted, or that seek monetary relief from a defendant who is immune from such relief. 2 8 U.S.C. § 1915A(b)(1), (2). II. S e c ond Amended Complaint In the Second Amended Complaint, Plaintiff sues Defendants Warden A Hedgpeth, C u s to d y Captain of Cental Operations E.G. Flores, B-Facility Captain R.W. Nipper, BF a c ility Captain J.D. Soto, and Chief Inmate Appeals Coordinator N. Grannis. P lain tiff raises three grounds for relief in the Second Amended Complaint: (1 ) P la in tiff's Fourteenth Amendment equal protection rights were violated when D e fe n d a n ts placed Plaintiff and other Hispanic inmates on lock-down for an e x te n d e d period of time but did not subject inmates of other races to the same tre a tm e n t, conspired to violate Plaintiff's constitutional rights, and failed to c o r re c t the constitutional violations by denying his grievances; (2 ) P la in tiff's Eighth Amendment rights were violated when Defendants subjected P la in tiff to a lock-down lasting approximately 8 months during which he was c o n fin e d to his cell for 24 hours per day with no outdoor exercise, conspired to violate Plaintiff's Eighth Amendment rights, and failed to correct the c o n stitu tio n a l violations by denying his grievances; and (3) D e fe n d a n ts Hedgpeth, Soto, and Grannis violated Plaintiff's First Amendment righ ts when they retaliated against Plaintiff­for filing grievances and acting as a n "I.A.C. Rep."­by "affiliating" Plaintiff with the criminal investigation of a prison gang to which he did not belong, and by denying Plaintiff's grie va n c es related to the retaliation. P la in t if f seeks declaratory relief and money damages. II I. F a ilure to State a Claim A. D e fe nda nt Grannis

T h e mere denial of a grievance does not give rise to the inference of active u n c o n stitu tio n a l behavior. Where a defendant's only involvement in the allegedly

unconstitutional conduct is the denial of administrative grievances, the failure to intervene
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on a prisoner's behalf to remedy alleged unconstitutional behavior does not amount to active unconstitutional behavior for purposes of § 1983. Shehee v. Luttrell, 199 F.3d 295, 300 (6th
C ir. 1999). In Counts I, II, and III, Plaintiff's only allegations against Defendant Grannis are that D e fe n d a n t Grannis denied his grievances appeals or failed to correct problems with the p ro c e ss in g and screening of Plaintiff's grievances. This is insufficient to state a § 1983 claim a n d the Court will dismiss Defendant Grannis without prejudice. B. C ons pir a c y

In Counts I, II, and III, Plaintiff alleges that Defendants conspired to violate his c o n s titu t io n a l rights.

In the absence of a specific allegation of "an agreement or meeting of the minds," a plaintiff's conclusory allegations that persons conspired against him will "not support a claim for violation of his constitutional rights under § 1983." Woodrum v. Woodward County, Okla., 866 F.2d 1121, 1126 (9th Cir. 1989). Plaintiff fails to state a conspiracy claim because he has presented no specific facts to support his claim that Defendants entered into a conspiracy. See Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 626 (9th Cir. 1988) (the mere allegation of conspiracy without factual specificity is insufficient). Allegations of conspiracy must be supported by material facts, not mere conclusory statements. Fonda v. Gray, 707 F.2d 435, 438 (9th Cir. 1983); see also Aldabe v. Aldabe, 616 F.2d 1089 (9th Cir. 1980); Manis v. Sterling, 862 F.2d 679, 681 (8th Cir. 1988) (allegations of conspiracy must be pled with sufficient specificity and factual support to suggest a "meeting of the minds"). Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519 (1972), conclusory and vague allegations will not support a cause of action. Ivey v. Board of Regents of the Univ. of Alaska, 673 F.2d 266 (9th Cir. 1982). Even a liberal

interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled. Id. at 268. Accordingly, Plaintiff's conspiracy claims will be dismissed for failure to state a claim.
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IV .

C la ims for Which an Answer Will be Required A. C ou nt I

In Count I, Plaintiff claims that Defendants Hedgpeth, Flores, Nipper, and Soto vio la te d his Fourteenth Amendment rights when they authorized and implemented a policy o f prolonged lock-down status for Hispanic inmates. Plaintiff alleges that he and other H is p a n ic inmates were denied outside recreation, canteen privileges, and work privileges w h ile inmates of other races were allowed those privileges. Liberally construed, Plaintiff's a lle ga tio n s state an equal protection claim and the Court will require Defendants Hedgpeth, F lo re s , Nipper, and Soto to answer Count I. B. C ount II

In Count II, Plaintiff alleges that Defendants Hedgpeth, Flores, Nipper, and Soto vio la te d his Eighth Amendment rights when they denied him outdoor recreation for a p p ro x im a te ly 8 months. Liberally construed, these allegations adequately state a claim and th e Court will require Defendants Hedgpeth, Flores, Nipper, and Soto to answer the Eighth A m e n d m e n t1 claims in Count II. C. C ount III

In Count III, Plaintiff claims that Defendants Hedgpeth and Soto violated his First A m e n d m e n t rights when they retaliated against him for filing grievances and acting as an "I.A .C . Rep.." Plaintiff claims that Defendants retaliated against Plaintiff "by willfully a ffilia tin g Plaintiff to a prison gang's criminal investigation in the hopes of deter[r]ing p lain tiff from 1st Amendment activities. . . ." Plaintiff states that he was not affiliated with th e prison gang, Defendants were aware he was not part of the prison gang, Defendants "a ffilia te d " Plaintiff with the prison gang without a valid penological purpose, and D e fe n d a n ts "affiliated" Plaintiff with the gang for the purpose of denying him privileges and

P lain tiff also appears to raise equal protection claims in Count II. Because Plaintiff ra is e d the same equal protection claims in the Count I, which the Court has already required D e fe n d a n ts to answer, the Court will not require Defendants to again address equal p ro te c tio n with respect to Count II. -4-

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p u n ish in g him for filing grievances. Liberally construed these allegations adequately state a claim and the Court will require Defendants Hedgpeth and Soto to answer Count III. V. M oti on O n June 1, 2009, Plaintiff filed a "Motion to Rectify Administrative Remedies in Se c o n d Amended Complaint" (Doc. #17). In his Motion, Plaintiff states that the information h e provided regarding administrative remedies is inaccurate with respect to Count III of the Se c o n d Amended Complaint. Plaintiff asks that the Court allow Plaintiff to substitute a new p a ge 5 of the Second Amended Complaint which accurately reflects his administrative re m e d y information with respect to Count III. The Court will grant the Motion and will su b stitu te page 5 of the Second Amended Complaint with the exhibit attached Plaintiff's M o tio n to Rectify. V I. W a r ning s A. A ddr e ss Changes

P lain tiff must file and serve a notice of a change of address in accordance with Rule 8 3 -1 8 2 (f) and 83-183(b) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other relief with a notice of change of address. Failure to comply may result in dismissal of this action. B. Copies

P la in t i f f must submit an additional copy of every filing for use by the Court. See LR C iv 5-133(d)(2). Failure to comply may result in the filing being stricken without further n o tice to Plaintiff. C. Possible Dismissal

If Plaintiff fails to timely comply with every provision of this Order, including these w a rn in gs, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 9 6 3 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure to co m p ly with any order of the Court). ... ... -5-

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IT IS ORDERED: (1) P la in tiff's June 1, 2009 Motion to Rectify Administrative Remedies in Second

A m e n d e d Complaint (Doc. #17) is granted; the exhibit attached to the Motion to Rectify is su b stitu ted for page 5 of the Second Amended Complaint. (2 ) The conspiracy claims in Counts I, II, and III of the Second Amended

C o m p la in t, and Defendant Grannis are dismissed without prejudice. (3 ) Defendants Hedgpeth, Flores, Nipper, and Soto must answer Counts I and II

o f the Second Amended Complaint, and Defendants Hedgpeth and Soto must also answer C o u n t III of the Second Amended Complaint. (4) The Clerk of Court must send Plaintiff a service packet including the Second

A m e n d e d Complaint (Doc. #18), the Motion to Rectify Administrative Remedies (Doc. #17) th is Order, a Notice of Submission of Documents form, an instruction sheet, and copies of s u m m o n s and USM-285 forms for Defendants Hedgpeth, Flores, Nipper, and Soto. (5 ) W ith in 30 days of the date of filing of this Order, Plaintiff must complete and

re tu rn to the Clerk of Court the Notice of Submission of Documents. Plaintiff must submit w ith the Notice of Submission of Documents: a copy of the Complaint for each Defendant, a copy of the Motion to Rectify for each Defendant, a copy of this Order for each Defendant, a completed summons for each Defendant, and a completed USM-285 for each Defendant. (6 ) P la in tiff must not attempt service on Defendants and must not request waiver

o f service. Once the Clerk of Court has received the Notice of Submission of Documents a n d the required documents, the Court will direct the United States Marshal to seek waiver o f service from each Defendant or serve each Defendant. ... ... ... ... ... ... -6-

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(7 )

If Plaintiff fails to return the Notice of Submission of Documents and the

r e quir e d documents within 30 days of the date of filing of this Order, the Clerk of Court mus t , without further notice, enter a judgment of dismissal of this action without pr e judic e . See Fed. R. Civ. P. 41(b).

DATED this 2 nd day of July, 2009.

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