Reno Rios v. Gipson et al

Filing 47

ORDER Adopting 45 Findings and Recommendations Regarding Defendants' Motion to Dismiss 39 , signed by Chief Judge Lawrence J. O'Neill on 3/30/19. A.V. Johnson (Lieutenant), M. Cuevas (Sergeant) and J. Hiracheta (Correctional Officer) Terminated. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RENO FUNETES RIOS,

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Plaintiff,

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v.

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GIPSON, et al.,

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No. 1:14-cv-00420-LJO-BAM (PC)
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS REGARDING
DEFENDANTS’ MOTION TO DISMISS
(ECF Nos. 39, 45)

Defendants.

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

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pauperis in this civil rights action under 42 U.S.C. § 1983. This action currently proceeds on

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Plaintiff’s second amended complaint against Defendants Gipson, Mayo, Piña, Ortega, and

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

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violation of the First Amendment, and against Defendants Johnson, Cuevas, and Hiracheta for

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

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Amendment.

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On August 28, 2018, Defendants filed a motion to dismiss Plaintiff’s due process claim

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relating to improper gang revalidation and Plaintiff’s retaliation claim relating to his participation

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in a hunger strike, on the grounds that Defendants are entitled to qualified immunity as a matter

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of law. (ECF No. 39.) Defendants did not challenge Plaintiff’s retaliation claim arising out of

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Plaintiff’s gang revalidation and retention in the Secured Housing Unit (“SHU”) due to Plaintiff’s
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participation in a group appeal. (Id.)
On March 12, 2019, the assigned Magistrate Judge issued findings and recommendations,

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recommending that Defendants’ partial motion to dismiss be granted. (ECF No. 45.) Those

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findings and recommendations were served on the parties and contained notice that any

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objections thereto were to be filed within fourteen (14) days after service. (Id. at 11.) On March

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27, 2019, Plaintiff timely filed objections. (ECF No. 46.) The deadline to file objections has

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passed, and no other objections have been filed.

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In his objections, Plaintiff argues that the Magistrate Judge erred in failing to consider the

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record as a whole, and the way in which the claims involved will affect Plaintiff’s opportunity to

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earn a parole date and to be released from the SHU. Plaintiff also argues that Defendants are not

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entitled to qualified immunity because regulations, policies, and procedures promulgated by the

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CDCR clearly establish his rights to file grievances and to passively participate in actions such as

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hunger strikes.

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Plaintiff’s objections are unpersuasive. The effect of the alleged actions of Defendants on

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Plaintiff’s ability to obtain a parole date is not relevant to the Court’s determination of whether

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Defendants are entitled to qualified immunity. Furthermore, and as discussed in the findings and

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recommendations, the existence of certain CDCR policies and regulations, standing alone, cannot

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demonstrate whether a right is “clearly established” for the purposes of the qualified immunity

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analysis. Plaintiff has failed to present any controlling or persuasive authority that would warrant

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reconsideration of the Magistrate Judge’s findings in this regard.

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To the extent Plaintiff’s objections relate to his claim that Defendants retaliated against

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him for the filing of grievances or group appeals, those objections are disregarded. The motion to

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dismiss did not address that issue, and that claim will be moving forward.

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In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), this Court has conducted a

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de novo review of this case. The Court has reviewed Plaintiff’s objections, but finds no basis

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warranting rejection of the Magistrate Judge’s findings and recommendations. Having carefully

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reviewed the entire file, the court finds the findings and recommendations to be supported by the

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record and by proper analysis.
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Accordingly, IT IS HEREBY ORDERED as follows:

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1. The March 12, 2019 findings and recommendations (ECF No. 45), are adopted in full;

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2. Defendants’ partial motion to dismiss, (ECF No. 39), is granted;

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3. Plaintiff’s claims against Defendants Gipson, Mayo, Piña, Ortega, and Garcia for

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improper gang revalidation in violation of the Due Process Clause, and against

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Defendants Johnson, Cuevas, and Hiracheta for retaliating against Plaintiff for

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participation in a hunger strike in violation of the First Amendment, are dismissed;

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4. Defendants Johnson, Cuevas, and Hiracheta are terminated from this action; and

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5. This action shall proceed against Defendants Gipson, Mayo, Piña, Ortega, and Garcia

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only on Plaintiff’s First Amendment claim for improper gang validation in retaliation

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for filing grievances; and

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6. This matter is referred back to the Magistrate Judge for further proceedings consistent

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with this order.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill _____

March 30, 2019

UNITED STATES CHIEF DISTRICT JUDGE
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