Reno Rios v. Gipson et al

Filing 27

ORDER Directing Clerk of Court to Randomly Assign a District Judge - CASE ASSIGNED to Chief Judge Lawrence J. O'Neill and Magistrate Judge Barbara A. McAuliffe. New Case No. 1:14-cv-00520 LJO BAM (PC); FINDINGS and RECOMMENDATIONS Recommending Dismissal of Certain Claims and Defendants 25 , signed by Magistrate Judge Barbara A. McAuliffe on 4/17/2018: 14-Day Deadline. (Hellings, J)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RENO FUENTES RIOS,

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Plaintiff,

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Case No. 1:14-cv-00520-BAM (PC)
ORDER DIRECTING CLERK OF COURT TO
RANDOMLY ASSIGN A DISTRICT JUDGE

v.
CONNIE GIPSON, et al.,

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Defendants.

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FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF CERTAIN
CLAIMS AND DEFENDANTS
(ECF No. 25)
FOURTEEN-DAY DEADLINE

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Plaintiff Rene Fuentes Rios (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis pursuant to 42 U.S.C. § 1983.
I.

Procedural Background

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Plaintiff initiated this action on April 14, 2014. (ECF No. 1.) On February 16, 2016, the

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Court screened Plaintiff’s complaint and found that it stated a cognizable claim against

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Defendants Gipson, Mayo, Ortega, Garcia and Piña for due process violations regarding his gang

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validation, but failed to state any other claims for relief. Plaintiff was granted leave to cure the

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identified deficiencies, and was directed to either file a first amended complaint or notify the

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Court that he was agreeable to proceeding only on the due process gang validation claim. (ECF

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No. 9.)
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On May 20, 2016, Plaintiff filed a first amended complaint. (ECF No. 14.)

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On October 18, 2016, the Court screened Plaintiff’s first amended complaint, and found

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that it stated a cognizable claim against Defendants Gipson, Mayo, Ortega, Garcia and Pin᷈a for

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due process violations regarding his gang validation, and against Defendants Johnson, Cuevas

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and Hiracheta for retaliating against Plaintiff for engaging in a hunger strike. (ECF No. 17.)

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Certain other claims were dismissed without leave to amend, but Plaintiff was granted leave to

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file a second amended complaint to attempt to cure deficiencies related to his claim that he was

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subjected to harsh conditions of confinement in retaliation for protected activity. (Id. at p. 10.)

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Plaintiff was directed to either file a second amended complaint or notify the Court that he was

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willing to proceed only on the cognizable claims identified by the Court. (Id. at p. 11.)
Plaintiff’s second amended complaint, filed on February 3, 2017, is currently before the

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Court for screening. (ECF No. 25.)

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I.

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 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

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relief 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

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pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not

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

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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949

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(2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65

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(2007)). While a plaintiff’s allegations are taken as true, courts “are 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).

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Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings
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liberally construed and to have any doubt resolved in their favor. Hebbe v. Pliler, 627 F.3d 338,

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342 (9th Cir. 2010) (citations omitted). To survive screening, Plaintiff’s claims must be facially

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plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each

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named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949

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(quotation marks omitted); Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir.

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2009). The sheer possibility that a defendant acted unlawfully is not sufficient, and mere

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consistency with liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678,

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129 S. Ct. at 1949 (quotation marks omitted); Moss, 572 F.3d at 969.

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II.

Allegations

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Plaintiff is an inmate in the custody of the California Department of Corrections and

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Rehabilitation (“CDCR”) at California State Prison, Corcoran (“Corcoran”), where the events in

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

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Warden Connie Gipson; (2) Lieutenant S. Pin᷈a; (3) Correctional Officer J. C. Garcia; (4)

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Correctional Officer J. Ortega; (5) Correctional Officer A. Mayo; (6) Captain T. Campbell; (7)

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Lieutenant J. V. Johnson; (8) Sergeant M. Cuevas; (9) Correctional Officer J. Hiracheta; (10)

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Correctional Counselor D. Goree; and (11) Appeals Coordinator A. Pasillas.

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Allegations Regarding Plaintiff’s Gang Validation

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On July 26, 2006, Plaintiff was originally validated by prison officials as a Mexican Mafia

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(EME) prison gang associate. He was placed in solitary confinement–Security Housing Unit

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(SHU) to serve six years before he could qualify for inactive review and release from the SHU.

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On February 15, 2007, Plaintiff was housed in the Corcoran SHU in a building where only prison

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gang validated inmates were housed.

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On August 23, 2010, Defendant A. Mayo allegedly fabricated a confidential

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memorandum, asserting that while working in the SHU, he intercepted a manila envelope that

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Inmate Berry passed from his cell to Inmate Dominguez. Plaintiff alleges that this memorandum

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was placed in his prison file in retaliation for his signing of a group CDCR 602 grievance

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submitted by Inmate Roy Dominguez challenging SHU conditions.

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reportedly confiscated the CDCR 602 grievance and filed confidential memoranda against all
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Defendant A. Mayo

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inmates that signed the grievance in order to stop the filing of grievances and to revalidate

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inmates as gang associates for retention in the SHU.

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On May 17, 2012, Plaintiff attended a Classification Committee (ICC) for a 180-day

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review regarding his original validation. Plaintiff informed Defendant Gipson about his inactive

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review date of June 1, 2012, so that he could be recommended for inactive review. Defendant

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Gipson ignored Plaintiff and alleged that he was endorsed for transfer to Pelican Bay State Prison

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for filing too many 602 grievances and protesting SHU conditions. Plaintiff asserts that

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Defendant Gipson retaliated against him for protesting the SHU conditions and for filing 602

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grievances. Plaintiff further alleges that Defendant Gipson violated his due process rights by

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retaining him beyond the eligible date for inactive review.

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On October 2, 2012, Defendant J. Ortega disclosed to Plaintiff the confidential

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memorandum entry that Defendant Mayo filed, but refused to describe the reliability of the entry

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and failed to provide a copy of the CDCR 602 group appeal, the alleged note found outside the

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manila envelope or the manila envelope.

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Confidential Information Disclosure Form and indicated that in less than 24 hours Defendant S.

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Pin᷈a would interview Plaintiff.

Defendant J. Ortega disclosed the CDCR-1030

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Defendant Pin᷈a was assigned by the Warden to be the Institutional Gang Investigator

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(IGI) in charge of interviewing inmates. Defendant Pin᷈a did not interview Plaintiff before

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submitting

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Safety (OCS). Plaintiff alleges that Defendant Pin᷈a knew that the information offered for re-

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validation violated Plaintiff’s due process rights under CDCR regulations.

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alleges that Defendants Gipson and Pin᷈a violated his rights by not issuing a new CDCR-114-D

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describing their reasons for retaining Plaintiff beyond June 1, 2012 and for not conducting a

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hearing within 24 hours as required by regulations before retaining him in the SHU and

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recommending him for prison gang validation.

the

gang

validation

package

to

the

Office

of

Correctional

Plaintiff further

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On October 4, 2012, Defendant J. Ortega approached Plaintiff’s cell and indicated that

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Defendant Pin᷈a could not conduct the 24-hour hearing because he did not have time for Plaintiff.

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Defendant Ortega told Plaintiff to write a response and he would give it to Defendant Pin᷈a.
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Plaintiff explained to Defendant Ortega that due to the conflict of interest regarding the retaliatory

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entry, Plaintiff needed to talk to Defendant Pin᷈a to explain why he could not have a copy of the

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alleged group appeal and the note, which indicated “to all in good standing.” (Doc. No. 25 at p.

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14.) Plaintiff indicated that he did not want to be interviewed by Defendant Ortega. Defendant

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Ortega said that Plaintiff had no choice other than to give a response to him regarding the CDCR-

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1030 or he would not submit anything. Plaintiff asked Defendant Ortega to record the rebuttal in

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the CDCR-128-B to ensure that it would be considered. Defendant Ortega indicated that OCS

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never replied or considered inmates’ rebuttals. Plaintiff then explained that it was very important

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that he talk to Defendant Pin᷈a and that he have a copy of the alleged evidence to prepare a good

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defense.
On November 15, 2012, Defendant J.C. Garcia was assigned to interview Plaintiff

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regarding a 602 grievance, Log # COR-12-06953.

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consider and attach Plaintiff’s evidence because Plaintiff had filed 602 grievances against other

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officers. Plaintiff presented the evidence to Defendant Garcia and clearly explained that on

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October 11, 2012, CDCR changed the policy and procedures regarding the information used to

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revalidate inmates as a prison gang. Defendant Garcia alleged that several other inmates already

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got validated based on the same information and that they would make sure to revalidate Plaintiff

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until he was willing to debrief. Plaintiff explained that all inmates who signed the grievance were

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gang validated as they were housed in the same building where only gang validated inmates were

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housed.

Defendant Garcia allegedly refused to

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On May 14, 2013, Defendant Pin᷈a resubmitted the gang validation package to the OCS for

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approval. Defendant Ortega disclosed unreliable CDCR-1030 form dated June 3, 2013, alleging

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that staff received an anonymous note indicating that Plaintiff may be targeted for assault by the

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EME prison gang. For this reason, Plaintiff was housed in isolation single cell, which was

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defective and without water for approximately two weeks. Plaintiff could only drink water when

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he went to yard, during showers, or when staff passed in a plastic bag because the building

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maintenance required a work order from the officers before the sink could be fixed.

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On November 15, 2013, the Departmental Review Board (“DRB”) assigned Plaintiff’s
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case pursuant to the new pilot program for STG case-by-case review and found that the

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information used for gang validation was insufficient to retain him in the SHU. Plaintiff was

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recommended to be released to the mainline general population.

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Allegations Regarding Inhumane SHU Conditions

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From 2007 through 2013, Plaintiff filed approximately 35 CDCR grievances regarding

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SHU conditions and the unreliable appeals system. Plaintiff alleges that staff refused to provide

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sufficient ventilation, recreational yard, showers, law library, laundry, sufficient food, incomplete

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meals, food was overcooked, cold, and sometimes served in dirty trays. Nearly every day

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Plaintiff was served imitation sausage crumbles and chicken-flavored strips, which were 80% soy

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and made Plaintiff sick. At that point, Plaintiff refused to eat the food in 2011, 2012, and 2013

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for several days to protest the inhumane conditions. Plaintiff contends that most of the 602

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grievances were not logged, processed or answered by prison officials.

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Inmates in the SHU were forced to endure bright light 24-hours a day because staff had

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the control to turn on and off the cell lights. Plaintiff alleges that while housed at the SHU, he

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filed several grievances against staff and SHU conditions with negative results.

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therefore had no choice but to participate in a hunger protest in a peaceful manner for his own

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reasons.

Plaintiff

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On December 1, 2008, Plaintiff filed a 602 appeal against SHU administrators for refusing

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to allow him to have control of the cell light. Plaintiff alleges that staff left the bright light on 24-

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hours to punish inmates. Plaintiff also complained that staff constantly refused to pass complete

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supplies, to provide hair/nail clippers, and clothing linen. Additionally, Plaintiff filed several

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other 602 grievances against administrators for constantly refusing to provide sufficient

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ventilation.

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On August 31, 2011, Plaintiff filed a 602 grievance for administrators punishing Plaintiff

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with repetitive counseling chronos to affect his inactive gang validation status and possible

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release from the SHU merely because Plaintiff peacefully participated in a hunger protest against

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the SHU conditions. Plaintiff alleges that his 602 grievances were obstructed by prison officials.

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On November 1, 2012, Plaintiff was attending the Institutional Classification Committee
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(ICC) and “had discovered the constantly 180 day meaningless ICC, staff reviews and the

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retaliatory confidential information entries . . . to enforce [sic] plaintiff to debrief.” (ECF No. 25

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at 18.)

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On November 26, 2012, Plaintiff filed a 602 grievance against ICC for refusing to

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disclose all confidential entries placed in his prison file because Plaintiff was supposed to be

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recommended for inactive review since June 1, 2012.

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On January 7, 2013, Defendant Pasillas interviewed Plaintiff in regard to the 602 appeal.

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Defendant Pasillas alleged that the reason they conducted meaningless ICC reviews was to verify

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if Plaintiff was willing to debrief and that Plaintiff’s due process right to a fair hearing or

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investigative employee at each 180-day was unnecessary. Defendant Pasillas refused to consider

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Plaintiff’s evidence.

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On January 7, 2013, Plaintiff requested from Defendant Pasillas a copy of the alleged 602

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group appeal and information considered to retain him in the SHU. Defendant Pasillas denied his

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request.

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Hunger Strike

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On July 8, 2013, Plaintiff decided to participate in his third protest and refused to eat the

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SHU meals. On July 10, 2013, Defendants Campbell, Johnson, Cuevas, and Hiracheta issued

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retaliatory Rule Violation Report (“RVR”) based on conjecture and speculation, and erroneously

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alleged that Plaintiff participated in a mass hunger strike. Plaintiff alleges that Defendants never

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interviewed him or asked why he refused meals, nor did they search his cell to determine if he

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was on a hunger strike or eating his own personal food. Plaintiff was not provided with an

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investigative employee to assist him with collecting evidence to prepare a defense. On July 22,

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2013, Lt. Brodie conducted the hearing on the RVR. Plaintiff alleges that Lt. Brodie denied his

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request to present evidence in his defense.

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On August 29, 2013, Defendant Goree was assigned to interview Plaintiff in regard to his

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grievance.

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participation in a mass hunger strike.

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Defendant Goree refused to record Plaintiff’s additional evidence due to his

Plaintiff seeks compensatory and punitive damages, along with declaratory and injunctive
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relief.

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III.

Discussion

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A. Official Capacity

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Plaintiff names several defendants in their individual and official capacities.

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Eleventh Amendment bars suits for money damages in federal court against a state, its agencies,

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and state officials in their official capacities.” Aholelei v. Dep’t. of Pub. Safety, 488 F.3d 1144,

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1147 (9th Cir. 2007) (citations omitted). Suits for injunctive relief are also generally barred. See

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Nat’l Audubon Soc’y v. Davis, 307 F.3d 835, 847 (9th Cir. 2002). However, the Eleventh

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Amendment does not bar suits seeking damages against state officials in their personal capacities,

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Hafer v. Melo, 502 U.S. 21, 30, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991); Porter v. Jones, 319 F.3d

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483, 491 (9th Cir. 2003), or suits for injunctive relief brought against state officials in their

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official capacities, Austin v. State Indus. Ins. Sys., 939 F.2d 676, 680 n.2 (9th Cir. 1991).

“The

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Thus, Plaintiff may only proceed against any defendant for money damages in their

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individual capacity, but may proceed against defendants for injunctive relief in their official

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capacities.

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B. Gang Validation

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As indicated, Plaintiff’s original complaint stated a claim for relief against Defendants

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Gipson, Mayo, Pina, Ortega, and Garcia for improper gang validation based on falsified

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information. The Court noted that Plaintiff sufficiently alleged that these defendants had

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predetermined that Plaintiff would be re-validated based upon a refusal to de-brief. Plaintiff re-

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states these allegations in the second amended complaint, including the fabrication of confidential

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entries in his prison file and that Plaintiff would be re-validated until he was willing to debrief.

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For the reasons noted in the February 16, 2016, order, the first amended complaint states a claim

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against these Defendants for improper gang validation.

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C. Retaliation

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A plaintiff may state a claim for a violation of his First Amendment rights due to

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retaliation under section 1983. Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995). A viable claim

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of retaliation in violation of the First Amendment consists of five elements: “(1) an assertion that
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a state actor took some adverse action against an inmate (2) because of (3) that prisoner’s

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protected conduct, and that such action (4) chilled the inmate’s exercise of his First Amendment

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rights, and (5) the action did not reasonably advance a legitimate correctional goal.” Rhodes v.

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Robinson, 408 F.3d 559, 567 (9th Cir. 2005); accord Watison v. Carter, 668 F.3d 1108, 1114 (9th

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Cir. 2012); Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009).

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1. Hunger Strike

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Liberally construed, the second amended complaint alleges that Plaintiff was participating in a

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hunger strike to protest his gang validation and harsh SHU conditions, and that he was charged

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with a serious rules violation in retaliation for participating in the hunger strike. Plaintiff therefore

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states a claim for relief against Defendants Johnson, Cuevas, and Hiracheta for retaliating against

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Plaintiff for participation in a hunger strike in violation of the First Amendment.

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2. Revalidation

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Plaintiff alleges, in part, that he was re-validated as a gang member and retained in the

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SHU in retaliation for signing a grievance challenging the inhumane SHU conditions. At the

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pleading stage, Plaintiff states a retaliation claim against Defendants Gipson, Mayo, Pina, Ortega,

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and Garcia.

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D. Grievance Procedure
Plaintiff complains about the processing and review of his grievances, including review by

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Defendant Goree.

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protected liberty interest upon which Plaintiff may base a claim that he was denied a particular

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result or that the appeals process was deficient. Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir.

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2003); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988).

However, the existence of an inmate appeals process does not create a

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E. Conditions of Confinement

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“The Eighth Amendment’s prohibition against cruel and unusual punishment protects

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prisoners not only from inhumane methods of punishment but also from inhumane conditions of

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confinement.” Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). Prison officials

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therefore have a “duty to ensure that prisoners are provided adequate shelter, food, clothing,

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sanitation, medical care, and personal safety.” Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir.
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2000) (citations omitted). Extreme deprivations are required to make out a conditions of

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confinement claim, and only those deprivations denying the minimal civilized measure of life’s

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necessities are sufficiently grave to form the basis of an Eighth Amendment violation. Hudson v.

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McMillian, 503 U.S. 1, 9, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992) (citations and quotations

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omitted). A prisoner claiming an Eighth Amendment violation must show (1) that the deprivation

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he suffered was “objectively, sufficiently serious;” and (2) that prison officials were deliberately

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indifferent to his safety in allowing the deprivation to take place. Morgan, 465 F.3d at 1045,

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quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994).

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Plaintiff alleges that staff refused to provide sufficient ventilation, recreational yard,

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showers, law library, laundry, sufficient food, incomplete meals, food was overcooked, cold, and

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sometimes served in dirty trays. Plaintiff’s general and conclusory allegations, without more, are

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insufficient to state a cognizable Eighth Amendment claim. Plaintiff fails to allege sufficient

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facts to demonstrate that the conditions he is complaining of are grave enough to form the basis of

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an Eighth Amendment claim. Plaintiff does not include facts regarding the circumstance, nature

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or duration of any claimed violation. More importantly, Plaintiff does not link any of the named

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defendants to his conditions of confinement claim, including that he was subjected to bright lights

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in 2008.

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F. Declaratory Relief

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In addition to monetary damages, Plaintiff seeks a declaration that his rights were

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violated. “A declaratory judgment, like other forms of equitable relief, should be granted only as

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a matter of judicial discretion, exercised in the public interest.” Eccles v. Peoples Bank of

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Lakewood Village, 333 U.S. 426, 431 (1948). “Declaratory relief should be denied when it will

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neither serve a useful purpose in clarifying and settling the legal relations in issue nor terminate

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the proceedings and afford relief from the uncertainty and controversy faced by the parties.”

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United States v. Washington, 759 F.2d 1353, 1357 (9th Cir. 1985).

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In the event that this action reaches trial and the jury returns a verdict in favor of Plaintiff,

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

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declaration that any defendant violated Plaintiff’s rights is unnecessary.
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IV.

Conclusion and Recommendation

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Plaintiff has stated cognizable claims against (1) Defendants Gipson, Mayo, Pina, Ortega,

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and Garcia for improper gang validation in violation of the Due Process Clause and retaliation in

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violation of the First Amendment; and (2) Defendants Johnson, Cuevas, and Hiracheta for

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retaliating against Plaintiff for participation in a hunger strike in violation of the First Amendment

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However, Plaintiff has failed to state any other cognizable claims in this action. Despite being

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provided with the relevant pleading and legal standards, Plaintiff has been unable to cure the

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deficiencies identified by the Court. Thus, further leave to amend is not warranted. Lopez v.

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Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).

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Accordingly, the Court HEREBY DIRECTS the Clerk of the Court to randomly assign a
District Judge to this action.
Furthermore, for the reasons explained above, IT IS HEREBY RECOMMENDED as
follows:
1. This action proceed on Plaintiff’s claims against Defendants Gipson, Mayo, Pina,

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Ortega, and Garcia for improper gang validation in violation of the Due Process

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Clause and retaliation in violation of the First Amendment; and (2) Defendants

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Johnson, Cuevas, and Hiracheta for retaliating against Plaintiff for participation in a

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hunger strike in violation of the First Amendment; and

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2. All other claims and defendants be dismissed for failure to state a cognizable claim for
relief, including Plaintiff’s request for declaratory relief.

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These Findings and Recommendations will be submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen

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(14) days after being served with these Findings and Recommendations, Plaintiff may file written

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objections with the Court. The document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendations.” Plaintiff is advised that failure to file objections within the

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specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834,

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838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

/s/ Barbara

April 17, 2018

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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