Manago v. Davey et al

Filing 22

FINDINGS and RECOMMENDATIONS recommending that Plaintiff's First Amended Complaint states a cognizable claim against Defendants Davey, Sexton, Vander Poel, Maxfield, Valdez, Acevedo and Razo for retaliation in violation of the First Amendment, a nd it shall go forward on this basis. It does not state any other claims and the remaining claims are dismissed for failure to state a claim. re 13 Amended Prisoner Civil Rights Complaint filed by Stewart Manago ; referred to Judge O'Neill,signed by Magistrate Judge Sandra M. Snyder on 05/11/2016. Objections to F&R due by 6/6/2016 (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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STEWART MANAGO,

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Plaintiff,

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v.

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DAVEY, et al.,

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Case No. 1:16-cv-00399 LJO DLB PC
FINDINGS AND RECOMMENDATIONS
FINDING COGNIZABLE CLAIMS AND
DISMISSING REMAINING CLAIMS
TWENTY-ONE DAY DEADLINE

Defendants.

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Plaintiff Stewart Manago (“Plaintiff”), a state prisoner proceeding pro se and in forma

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pauperis,1 filed this civil rights action on March 24, 2016. He filed a First Amended Complaint on

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April 18, 2016. Plaintiff names D. Davey, M.V. Sexton, J. Vander Poel, A. Maxfield, A. Valdez, J.

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Aceveo and E. Razo as Defendants.
On April 27, 2016, the Court screened Plaintiff’s First Amended Complaint and found that it

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stated a First Amendment retaliation claim against Defendants Davey, Sexton, Vander Poel,

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Maxfield, Valdez, Acevedo and Razo. It did not state any other claims, and Plaintiff was ordered to

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file an amended complaint, or notify the Court of his willingness to go forward only on the

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cognizable claims.

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Plaintiff is subject to 28 U.S.C. § 1915(g), but the Court determined that the allegations in his complaint met the
imminent danger exception and permitted him to proceed in forma pauperis.

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On May 5, 2016, Plaintiff notified the Court that he wished to go forward only on the First

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Amendment retaliation claim. The Court now issues these Findings and Recommendations based on

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Plaintiff’s decision.

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A.

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SCREENING STANDARD
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). The

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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).

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“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall

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dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a

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claim upon which relief may be granted.” 28 U.S.C. § 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

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is 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, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly,

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550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual matter, accepted as true, to

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‘state a claim that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 555). While factual

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allegations are accepted as true, legal conclusions are not. Id.

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Section 1983 provides a cause of action for the violation of Plaintiff’s constitutional or other

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federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 1087, 1092

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(9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); Jones v.

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Williams, 297 F.3d 930, 934 (9th Cir. 2002). Plaintiff’s allegations must link the actions or

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omissions of each named defendant to a violation of his rights; there is no respondeat superior

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liability under section 1983. Iqbal, 556 U.S. at 676-77; Simmons v. Navajo County, Ariz., 609 F.3d

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1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009);

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Jones, 297 F.3d at 934. Plaintiff must present factual allegations sufficient to state a plausible claim

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for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).
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The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 556 U.S.

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at 678; Moss, 572 F.3d at 969.

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B.

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ALLEGATIONS IN FIRST AMENDED COMPLAINT
Plaintiff is currently incarcerated at California State Prison- Sacramento. The events at issue

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occurred while he was housed at Corcoran State Prison (“Corcoran”). Plaintiff is a member of the

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“Crips” street gang, and he has admitted his membership to prison officials since 1989.

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Plaintiff alleges that he has been retained in the Secured Housing Unit (“SHU”) at Corcoran

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in retaliation for reporting officers’ (1) sex crimes with inmates and patients; and (2) smuggling

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contraband into California prisons. Plaintiff believes that Defendants use influential inmates, whom

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Plaintiff labels as the “Inmate Task Force (‘ITF’)”, to attempt to discipline other inmates in

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exchange for illegal favors and preferential treatment.

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Plaintiff contends that Defendants Davey and Sexton conspired with the ITF to “perpetuate

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the use of inmate task force through various acts of retaliation, intimidation, cover-up, tampering and

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hampering investigations. . .” ECF No. 13, at 2.

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On October 11, 2012, the California Department of Corrections and Rehabilitation set forth

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new procedures for validating gang members and determined that validated inmates would no longer

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be considered for Administrative Segregation in the SHU unless there were also behavioral issues.

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On December 26, 2013, Plaintiff arrived at the Corcoran SHU to serve an indeterminate SHU

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term for allegedly being an associate of the Black Guerilla Family (“BGF”) prison gang. Prison

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officials decided to retain Plaintiff in the SHU in January 2014 and April 2014.

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From December 26, 2013, through July 28, 2015, Defendants had no evidence that Plaintiff

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was promoting BGF gang activities, and that they knew that he was not a BGF member based on

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documents in his C-File.

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On July 28, 2015, Defendants retained Plaintiff in the SHU in part based on a false prison

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gang validation as a BGF member. Plaintiff contends that this was done in retaliation for his civil

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action Manago v. Williams, of which Defendants knew, and because of his willingness to report staff

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criminal activity, file grievances and assist the Office of Internal Affairs with criminal

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investigations. Plaintiff contends that Defendants knew that he did not pose a threat to the safety and
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security of the institution, and knew that he has stopped various “major security threats.” ECF No.

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13, at 9. He also alleges that they knew that he assisted in preventing staff sex crimes and other

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criminal activities.

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Plaintiff contends that in March 2016, an officer prepared a confidential report indicating that

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Plaintiff was being targeted for assault/murder, substantiating his safety concerns. He alleges that

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Defendants knew of his safety concerns as early as December 2013, but failed to inform Plaintiff of

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the threats against him and failed to protect him from potential attacks. Plaintiff had been assaulted

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previously because he was labeled as a “snitch.”

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Defendant Maxfield told Plaintiff of inmates’ alleged plan to assault him on March 16, 2016.

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From January 7, 2014, through July 16, 2014, Defendant Davey was responsible for allowing

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staff to change Plaintiff’s single cell status to double cell status, with the intent of housing Plaintiff

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with a known gang rival. However, the rival gang members refused to come into Plaintiff’s cell.

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Plaintiff also alleges that Defendant Davey failed to supervise Corcoran staff to ensure that

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rules, policies and procedures were enforced on July 28, 2015.

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C.

DISCUSSION

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1.

First Amendment Retaliation

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“Prisoners have a First Amendment right to file grievances against prison officials and to be

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free from retaliation for doing so.” Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) (citing

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Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009)). Also protected by the First Amendment is

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the right to pursue civil rights litigation in federal court without retaliation. Silva v. Di Vittorio, 658

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F.3d 1090, 1104 (9th Cir. 2011). “Within the prison context, a viable claim of First Amendment

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retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action

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against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4)

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chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably

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advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005).

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Here, Plaintiff alleges that Defendants retaliated against him by retaining him in the SHU

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because of his grievances and civil litigation. The Court finds that this states a retaliation claim

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against Defendants Davey, Sexton, Vander Poel, Maxfield, Valdez, Acevedo and Razo.2

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2.

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Conspiracy
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Section 1983

To state a claim for conspiracy under section 1983, Plaintiff must show the existence of an

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agreement or a meeting of the minds to violate his constitutional rights, and an actual deprivation of

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those constitutional rights. Avalos v. Baca, 596 F.3d 583, 592 (9th Cir. 2010); Franklin v. Fox, 312

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F.3d 423, 441 (9th Cir. 2001).

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Plaintiff alleges that on July 28, 2015, Defendants conspired to violate his constitutional

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rights. His conspiracy theory, however, is not supported by anything other than his speculation. As

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explained above, “[f]actual allegations must be [sufficient] to raise a right to relief above the

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speculative level . . . .” Twombly, 127 S.Ct. at 1965. Therefore, a bare allegation that Defendants

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conspired to violate Plaintiff’s constitutional rights will not suffice to give rise to a conspiracy claim

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under section 1983.

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b.

Section 1985

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A claim brought for violation of section 1985(3) requires “four elements: (1) a conspiracy;

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(2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the

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equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in

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furtherance of this conspiracy; (4) whereby a person is either injured in his person or property or

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deprived of any right or privilege of a citizen of the United States.” Sever v. Alaska Pulp Corp., 978

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F.2d 1529, 1536 (9th Cir. 1992) (citation omitted). A racial, or perhaps otherwise class-based,

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invidiously discriminatory animus is an indispensable element of a section 1985(3) claim. Sprewell

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v. Golden State Warriors, 266 F.3d 979, 989 (9th Cir. 2001) (quotations and citation omitted).
Plaintiff’s section 1985(3) conspiracy claim fails for two reasons. First, as in his section

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1983 conspiracy claim, he has failed to allege specific acts in furtherance of the conspiracy.

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Plaintiff’s allegations are conclusory and speculative at best. See Sanchez v. City of Santa Ana, 936

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Plaintiff will be instructed on service when these Findings and Recommendations are adopted.

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F.2d 1027, 1039 (9th Cir. 1990) (“A mere allegation of conspiracy without factual specificity is

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insufficient to support a claim.”). Second, Plaintiff fails to allege any kind of racial, or otherwise

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class-based, invidious discriminatory animus, which is an indispensable element of a section 1985(3)

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claim. Sprewell, 266 F.3d at 989 (quotations and citation omitted).

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Plaintiff therefore fails to state a conspiracy claim under section 1985(3).

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3.

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The Racketeer Influenced and Corrupt Organizations Act (“RICO”) authorizes a private right

RICO

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of action by “[a]ny person injured in his business or property by reason of a violation of section

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1962.” 18 U.S.C. § 1964(c). In order to state a civil RICO claim, a plaintiff must sufficiently allege

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“(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity (5) causing injury

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to plaintiffs’ business or property.” Ove v. Gwinn, 264 F.3d 817, 825 (9th Cir.2001).

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Plaintiff alleges that Defendants Davey and Sexton violated RICO “for multiple RICO

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predicate acts, including obstruction of justice. . .” ECF No. 13, at 23. However, civil rights

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violations do not fall within the statutory definition of “racketeering activity.” Bowen v. Oistead,

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125 F.3d 800, 806 (9th Cir.1997). Moreover, Plaintiff fails to show that he suffered any injury to his

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business or property due to actions that would be defined as racketeering activity under section 1961.

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See Oscar v. Univ. Students Co-op. Ass’n, 965 F.2d 783, 785 (9th Cir.1992) (en banc) (“injuries to

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property are not actionable under RICO unless they result in tangible financial loss to the plaintiff”

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and “personal injuries are not compensable under RICO”).

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Plaintiff therefore fails to state a claim under RICO and this cannot be cured by amendment.

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The Eighth Amendment protects prisoners from inhumane methods of punishment and from

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inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006).

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Although prison conditions may be restrictive and harsh, prison officials must provide prisoners with

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food, clothing, shelter, sanitation, medical care, and personal safety. Farmer v. Brennan, 511 U.S.

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825, 832-33, 114 S.Ct. 1970 (1994) (quotations omitted). Prison officials have a duty under the

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Eighth Amendment to protect prisoners from violence at the hands of other prisoners because being

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violently assaulted in prison is simply not part of the penalty that criminal offenders pay for their

Eighth Amendment

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offenses against society. Farmer, 511 U.S. at 833-34 (quotation marks omitted); Clem v. Lomeli,

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566 F.3d 1177, 1181 (9th Cir. 2009); Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005).

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However, prison officials are liable under the Eighth Amendment only if they demonstrate deliberate

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indifference to conditions posing a substantial risk of serious harm to an inmate; and it is well settled

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that deliberate indifference occurs when an official acted or failed to act despite his knowledge of a

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substantial risk of serious harm. Farmer, 511 U.S. at 834, 841 (quotations omitted); Clem, 566 F.3d

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at 1181; Hearns, 413 F.3d at 1040.

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Plaintiff alleges that Defendants knew of his safety concerns in December 2013, but failed to

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inform him of the threats against him and failed to protect him from potential attacks. Plaintiff was

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also changed from single cell to double cell status in January 2014, though he states that rival gang

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members would not enter his cell.
Plaintiff’s allegations, however, do not rise to the level of an Eighth Amendment violation.

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While he cites prior attacks and potential danger, he does not sufficiently allege that Defendants

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were aware of a substantial risk of harm and failed to take action. For example, Plaintiff states that

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no assault occurred based on the cell status change. See Berg v. Kincheloe, 794 F.2d 457, 459 (9th

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Cir. 1986) (“a mere suspicion that an attack will occur” is not enough to support a cognizable Eighth

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Amendment claim); Williams v. Wood, 223 Fed. App’x 670, 671 (9th Cir. 2007) (“speculative and

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generalized fears of harm at the hands of other prisoners do not rise to a sufficiently substantial risk

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of serious harm to [plaintiff’s] future health”).

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For these reasons, Plaintiff fails to state a claim under the Eighth Amendment.

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5.

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Supervisory personnel may not be held liable under section 1983 for the actions of

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subordinate employees based on respondeat superior, or vicarious liability. Crowley v. Bannister,

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734 F.3d 967, 977 (9th Cir. 2013); accord Lemire v. California Dep’t of Corr. and Rehab., 726 F.3d

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1062, 1074-75 (9th Cir. 2013); Lacey v. Maricopa County, 693 F.3d 896, 915-16 (9th Cir. 2012) (en

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banc).

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Failure to Train and Supervise

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Rather, “[a] supervisor may be liable only if (1) he or she is personally involved in the

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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 (citing Snow, 681

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F.3d at 989) (internal quotation marks omitted); accord Lemire, 726 F.3d at 1074-75; Lacey, 693

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F.3d at 915-16. “Under the latter theory, supervisory liability exists even without overt personal

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participation in the offensive act if supervisory officials implement a policy so deficient that the

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policy itself is a repudiation of constitutional rights and is the moving force of a constitutional

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violation.” Crowley, 734 F.3d at 977 (citing Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989))

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(internal quotation marks omitted).

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Plaintiff contends that Defendants Davey, Sexton and Vander Poel failed to train, supervise

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or control their subordinates, or enacted policies that were the moving force behind the alleged

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violations. As explained above, Plaintiff states a claim against all Defendants for violation of the

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First Amendment based on their individual participation. He does not, however, state any kind of

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supervisory claim. Other than the First Amendment claim, he does not specifically allege a causal

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link between the supervisory defendants and his claimed constitutional violations, and he has not

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sufficiently described any policy that would support liability.

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Plaintiff therefore fails to state a claim based on supervisory liability.
D.

FINDINGS AND RECOMMENDATIONS

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Plaintiff’s First Amended Complaint states a cognizable claim against Defendants Davey,

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Sexton, Vander Poel, Maxfield, Valdez, Acevedo and Razo for retaliation in violation of the First

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Amendment, and it SHALL GO FORWARD on this basis. It does not state any other claims, and

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the remaining claims are DISMISSED FOR FAILURE TO STATE A CLAIM.

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These Findings and Recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within twenty-one

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

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objections with the Court. Such a 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 waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d

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1153 (9th Cir.1991).

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IT IS SO ORDERED.
Dated:

May 11, 2016

/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE

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