Fuentes v. Brown et al

Filing 10

ORDER Dismissing Complaint With Leave to Amend, signed by Magistrate Judge Barbara A. McAuliffe on 10/21/14. Amended Complaint Due Within Thirty Days. (Attachments: # 1 Amended Complaint Form)(Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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VALENTIN FUENTES,

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Plaintiff,
v.
JERRY BROWN, et al.,

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Defendants.

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Case No.: 1:13-cv-00934-BAM (PC)
ORDER DISMISSING COMPLAINT WITH
LEAVE TO AMEND
(ECF No. 1)
THIRTY-DAY DEADLINE

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I.
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Screening Requirement and Standard

Plaintiff Valentin Fuentes (“Plaintiff”) is a state prisoner proceeding pro se and in forma
pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff’s complaint, filed on June

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19, 2013, is currently before the Court for screening.
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The Court is required to screen complaints brought by prisoners seeking relief against a
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governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. §
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1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous or

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malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief
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from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); 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 pleader is

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entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,

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do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009) (citing Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). While a plaintiff’s

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allegations are taken as true, courts “are not required to indulge unwarranted inferences.” Doe I v.

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Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation

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omitted).

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To survive screening, Plaintiff’s claims must be facially plausible, which requires sufficient

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factual detail to allow the Court to reasonably infer that each named defendant is liable for the

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misconduct alleged. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks omitted); Moss v.

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United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant

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acted unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the

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plausibility standard. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks omitted); Moss, 572

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F.3d at 969.
Plaintiff’s Allegations

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II.

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Plaintiff is currently housed at the California Substance Abuse Treatment Facility, where the

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events in the complaint are alleged to have occurred. Plaintiff names the following defendants: (1)

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Jerry Brown, Governor of the State of California; (2) Kathleen L. Dickinson, Director of the California

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Department of Corrections and Rehabilitation (“CDCR”); (3) Terri McDonald, Under Secretary

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CDCR; (4) Kathleen Allison, Deputy Director; (5) M. Stainer, Deputy Director of Facility Operations;

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(6) T. L. Gonzalez, Associate Director; (7) Albert Chamberlin, Captain; (8) Ralph M. Diaz, Warden;

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(9) C. Etchebeh, Associate Warden; (10) R. Tolsen, Associate Warden; (11) L. Cartagena, Captain;

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(12) S. Smith, Captain; (13) T. Atkin, Lieutenant; (14) R. K. Williams, Lieutenant; (15) M. Jones,

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Sergeant; (16) J. Tangen, Sergeant; (17) R. Hall, Appeals Coordinator; (18) J. Cota, Appeals

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Coordinator; (19) C. M. Heck, Appeals Coordinator; (20) K. Ramirez, Correctional Counselor II; (21)

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A. Lyons, Correctional Officer; (22) C. Lane, Correctional Officer; (23) R. Diaz, Correctional Officer;

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and (24) V. Magana, Correctional Officer. Defendants are sued in their individual and official

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capacities.

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Plaintiff alleges: On April 17, 2013, Defendant V. Magana received a confidential kite from

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an inmate indicating that there was a sharpened piece of metal in Plaintiff’s cell and an inmate was

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going to be stabbed on the yard. The information was provided to Defendant Magana at 10:00 a.m.

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After she read the kite, she failed to notify proper personnel and turned a blind eye to the security

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threat at the institution.

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At 11:00 a.m., Plaintiff was released from education, returned to his cell to change his clothes

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and released back into the yard. At 11:15 a.m., the yard was put down by Sgt. J. Tangen and Sgt. M.

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Jones. Plaintiff was arrested and taken to the facility program officer. Plaintiff was told by the

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arresting officer that he would be going to Administrative Segregation and would be removed from the

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facility yard. When Plaintiff asked Defendants why he was going to Ad-Seg, Defendants stated that

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they had received confidential information regarding Plaintiff.

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Defendant Magana searched Plaintiff’s cell after 11:00 a.m., when Plaintiff was out of the

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building and over an hour after the confidential information was received. Defendant Magana failed

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to contact I.G.I. to conduct the search. During the search, Defendant Magana took what was said to be

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in Plaintiff’s locker to the office and took photos for evidence. Defendant Magana failed to follow

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proper procedures by failing to contact I.G.I. and failing to take photos of the evidence where it was

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found in the cell. Defendant Magana then stated on the 115 Rule Violation Report that a rock, 2 nails,

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confidential kite and camera were placed in evidence locker #3 and the confidential information was

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placed in Plaintiff’s C-File, Confidential Section. Defendants violated Plaintiff’s rights by not doing

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an investigation to see if the confidential informant was reliable. Plaintiff argues that Defendants

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conspired to file a false report in to have Plaintiff collect a lengthier sentence than the eight months he

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had left.

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On April 18, 2013, Defendant K. Ramirez came to Plaintiff’s cell door in Ad-Seg and asked if

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Plaintiff had anything to say about his lock-up order. When Plaintiff said no, Defendant Ramirez

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began to get hostile and threatened Plaintiff that a new lock up order would be written up stating

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intimidation.
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On April 22, 2013, Defendant Cartagena came to see Plaintiff in Ad-Seg. Defendant

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Cartagena told Plaintiff that he was sorry it took him so long to see and interview Plaintiff. He further

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stated that Plaintiff should have never been removed from the yard and taken to Ad-Seg in the first

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place. Plaintiff claims that he was falsely imprisoned for over 5 days without reason.
On April 23, 2013, when Defendant Magana unlocked the tray slot to give Plaintiff breakfast,

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she told Plaintiff that she was going to move him to 5 block. Plaintiff then stated that he wanted to

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move in with another (A.M.I.) brother. Defendant Magana then stated, “I am no longer going to deal

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with you in my block. So have your shit packed and be ready to move to 5 block.” (ECF No. 1, p.

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11.)

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On May 6, 2013, Defendant R. K. Williams called Plaintiff for the 115 hearing. Defendant

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Williams asked Plaintiff if he knew anything about the weapons or nails. Plaintiff responded that he

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knew nothing about them. Defendant R. K. Williams said that the 115 was going to be dismissed

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because the confidential information was not in Plaintiff’s c-file. Plaintiff stated that he had questions.

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Defendant Williams stated that the write-up was being dismissed and asked Plaintiff if he was

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pleading not guilty. Plaintiff stated that he was pleading not guilty. Defendant Williams then stated

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that there was no need for Plaintiff’s questions. Plaintiff then asked when he would receive the final

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copy of the disposition. Defendant Williams stated that Plaintiff would receive a copy within five

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days. Plaintiff did not receive a copy until 18 days later.

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In Counts 1-3, 5-8, and 10, Plaintiff asserts violations of the California Penal Code. The

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remainder of his allegations relate to violations of the California Government Code (Count 4), the

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Administrative Procedures Act (Count 9), false imprisonment (Count 11) and a request for declaratory

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and injunctive relief (Count 12.)

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Plaintiff seeks punitive and compensatory damages.

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III.

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Discussion
A.

Linkage Requirement

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The Civil Rights Act under which this action was filed provides:

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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

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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. The statute plainly requires that there be an actual connection or link between the

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actions of the defendants and the deprivation alleged to have been suffered by Plaintiff. See Monell v.

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Dep’t of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611; Rizzo v. Goode, 423 U.S. 362, 96

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S.Ct. 598, 46 L.Ed.2d 561 (1976). The Ninth Circuit has held that “[a] person ‘subjects’ another to the

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deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative act,

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participates in another’s affirmative acts, or omits to perform an act which he is legally required to do

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that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th

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Cir. 1978).
Here, Plaintiff fails to link the following defendants to any violation of his constitutional

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rights: Jerry Brown, Kathleen L. Dickinson, Terri McDonald, Kathleen Allison, M. Stainer, T. L.

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Gonzalez, Albert Chamberlin, Ralph M. Diaz, C. Etchebeh, R. Tolsen, S. Smith, T. Atkin, R. Hall, J.

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Cota, C. M. Heck, A. Lyons, C. Lane and R. Diaz. If Plaintiff amends his complaint, he must allege

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what each individual did or failed to do that resulted in a violation of Plaintiff’s constitutional rights.

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B.

Official Capacity and Eleventh Amendment

Plaintiff brings suit against all defendants in their individual and official capacities. To the

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extent that Plaintiff seeks to bring damages claims against defendants in their official capacities for

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money damages, he may not do so. The Eleventh Amendment prohibits suits for monetary damages

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against a State, its agencies, and state officials acting in their official capacities. Aholelei v. Dep’t of

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Public Safety, 488 F.3d 1144, 1147 (9th Cir. 2007).

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C.

Supervisory Liability

To the extent Plaintiff seeks to bring suit against any individual defendant based on his or her

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role as supervisor, he may not do so. Supervisory personnel may not be held liable under section 1983

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for the actions of subordinate employees based on respondeat superior or vicarious liability. Crowley

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v. Bannister, 734 F.3d 967, 977 (9th Cir. 2013); accord Lemire v. California Dep’t of Corr. and

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Rehab., 726 F.3d 1062, 1074–75 (9th Cir. 2013); Lacey v. Maricopa County, 693 F.3d 896, 915–16

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(9th Cir. 2012) (en banc). “A supervisor may be liable only if (1) he or she is personally involved in
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the constitutional deprivation, or (2) there is a sufficient causal connection between the supervisor's

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wrongful conduct and the constitutional violation.” Crowley, 734 F.3d at 977 (internal quotation

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marks omitted); accord Lemire, 726 F.3d at 1074–75; Lacey, 693 F.3d at 915–16. “Under the latter

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theory, supervisory liability exists even without overt personal participation in the offensive act if

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supervisory officials implement a policy so deficient that the policy itself is a repudiation of

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constitutional rights and is the moving force of a constitutional violation.” Crowley, 734 F.3d at 977

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(citing Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)) (internal quotation marks omitted).

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D.

Conspiracy in Violation of 42 U.S.C. § 1985

In Claim 3, Plaintiff alleges that defendants violated Title 42 of the United States Code, section

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1985(2). Section 1985(2) proscribes conspiracies for the purpose of impeding the due course of

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justice in any state, with the intent to deny equal protection of the laws. Coverdell v. Dep’t. of Soc.

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and Health Servs., State of Washington, 834 F.2d 758, 767 (9th Cir. 1987). A claim under § 1985

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must allege specific facts to support the allegation that defendants conspired together. Karim-Panahi

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v. Los Angeles Police Dep’t., 839 F.2d 621, 626 (9th Cir. 1988). A mere allegation of conspiracy

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without factual specificity is insufficient to state a claim under 42 U.S.C. § 1985. Id.; Sanchez v. City

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of Santa Ana, 936 F.2d 1027, 1039 (9th Cir. 1991).

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Here, Plaintiff fails to allege specific facts to support a conspiracy allegation.
E.

California Penal Code Violations

In Claims 1-3, 5-8 and 10, Plaintiff seeks to impose liability against defendants based on

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alleged violations of California Penal Code sections 2652, 2650, 182, 142, 141, 134, 125, and 147. A

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private right of action under a criminal statute has rarely been implied. Chrysler Corp. v. Brown, 441

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U.S. 281, 316, 99 S.Ct. 1705, 1725, 60 L.Ed.2d 208 (1979). Where a private right of action has been

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implied, “there was at least a statutory basis for inferring that a civil cause of action of some sort lay in

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favor of someone.” Chrysler Corp., 441 U.S. at 316, 99 S. Ct at 1725 (quoting Cort v. Ash, 422 U.S.

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66, 79, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975); see Taylor v. Hubbard, 2012 WL 1718055, *4 (E.D. Cal.

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May 15, 2012); Sohal v. City of Merced Police Dep’t, 2009 WL 961465, *7 (E.D. Cal. Apr. 8, 2009)

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(“[t]his court and courts of this circuit routinely dismiss claims based on violation of state criminal

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statutes where the language of the statute does not confer a private right of action”). The Court has
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reviewed the penal code sections cited by Plaintiff in their entirety and can find no indication of a

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private right of action. Accordingly, Plaintiff’s claims for violations of the California Penal Code are

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not cognizable.
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Government Code Violations

In Claims 4 and 6, Plaintiff alleges that defendants violated California Government Code

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sections 19572 and 19512. The Government Code sections cited by Plaintiff relate to discipline of

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state civil service personnel. There is no indication that Plaintiff is authorized to bring a private cause

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of action based on these Government Code provisions.
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Administrative Procedures Act

In Claim 9, Plaintiff alleges that defendants violated the Administrative Procedures Act, 5

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U.S.C. § 500 et seq. The APA cited by Plaintiff governs the manner in which administrative agencies

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of the federal government propose and establish regulations. Plaintiff is bringing suit against state

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officials, not federal government employees. Accordingly, the APA has no application to this action.
H.

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False Imprisonment

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In Claim 11, Plaintiff alleges that Defendants falsely imprisoned him. This allegation appears

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to relate to Plaintiff’s short-term placement in Administrative Segregation during pendency of his 115

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Rules Violation Report. To state a claim for false imprisonment, a plaintiff must allege he was

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restrained by another without proper authority, and the restraint was completely unlawful and without

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authority. See Collins v. County of Los Angeles, 241 Cal.App.2d 451, 459-60, 50 Cal.Rptr. 586

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(Cal.App.1966), Singleton v. Perry, 289 P.2d 794, 45 Cal.2d 489 (Cal.1955). Plaintiff is not

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challenging the legality of his incarceration in state prison. As such, he cannot state a false

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imprisonment claim even if he was wrongfully housed in administrative segregation for a period of

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time.
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Disciplinary Proceedings

Insofar as Plaintiff is challenging the disciplinary proceedings, this challenge appears to be

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moot. Plaintiff admits that his 115 Rule Violation was dismissed.

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Declaratory Relief

Plaintiff seeks a declaration that his rights were violated. “A declaratory judgment, like other

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forms of equitable relief, should be granted only as a matter of judicial discretion, exercised in the

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public interest.” Eccles v. Peoples Bank of Lakewood Village, 333 U.S. 426, 431, 68 S.Ct. 641, 92

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L.Ed. 784 (1948). “Declaratory relief should be denied when it will neither serve a useful purpose in

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clarifying and settling the legal relations in issue nor terminate the proceedings and afford relief from

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the uncertainty and controversy faced by the parties.” United States v. Washington, 759 F.2d 1353,

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1357 (9th Cir. 1985). In the event that this action reaches trial and the jury returns a verdict in favor of

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Plaintiff, the verdict will be a finding that Plaintiff's constitutional rights were violated. Accordingly, a

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declaration that a defendant violated Plaintiff's rights is unnecessary.

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IV.

Conclusion and Order

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Plaintiff’s complaint fails to state a cognizable claim for relief. The Court will grant Plaintiff

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an opportunity to cure the identified deficiencies. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir.

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2000).

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Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but it must state what each

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named defendant did that led to the deprivation of Plaintiff’s constitutional rights, Iqbal, 556 U.S. at

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678-79, 129 S.Ct. at 1948-49. Although accepted as true, the “[f]actual allegations must be

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[sufficient] to raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555

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(citations omitted).

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Additionally, Plaintiff may not change the nature of this suit by adding new, unrelated claims

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in his amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot”

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complaints).

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Finally, Plaintiff is advised that an amended complaint supersedes the original complaint.

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Lacey, 693 F.3d at 927. Therefore, Plaintiff’s amended complaint must be “complete in itself without

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reference to the prior or superseded pleading.” Local Rule 220.

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Based on the foregoing, it is HEREBY ORDERED that:

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The Clerk’s Office shall send Plaintiff a complaint form;

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2.

Plaintiff’s complaint is dismissed with leave to amend;
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Within thirty (30) days from the date of service of this order, Plaintiff shall file a first

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amended complaint; and

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4.

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action will be dismissed for failure to obey a court order and failure to state a claim.

If Plaintiff fails to file a first amended complaint in compliance with this order, this

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IT IS SO ORDERED.
Dated:

/s/ Barbara

October 21, 2014

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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