Suarez v. Cate, et. al.

Filing 83

ORDER signed by District Judge Kimberly J. Mueller on 2/4/16 ORDERING that the findings and recommendations filed 6/30/15, are adopted in part, with the above replacing that portion of the magistrate judge's findings that is not consistent wi th the discussion here; Defendant Beard's motion to dismiss 58 is granted as to Plaintiff's claims for injunctive relief intended to cure the alleged violations of his Fourteenth Amendment due process rights and otherwise denied; Scott Kernan is substituted in as a defendant in place of Jeffrey Beard; and Defendant Kernan is directed to file an answer to the complaint within 14 days from the date of this order. (Becknal, R)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

MAHER SUAREZ,

12

Plaintiff,

13
14

No. 2:12-cv-2048-KJM-EFB P

v.

ORDER

SCOTT KERNAN, et al.,1

15

Defendants.

16
Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief

17
18

under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided

19

by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

20

On June 30, 2015, the magistrate judge filed findings and recommendations, which were

21

served on all parties and which contained notice to all parties that any objections to the findings

22

and recommendations were to be filed within fourteen days. Plaintiff and defendant have filed

23

objections to the findings and recommendations and defendant has filed a response to plaintiff’s

24

objections.

25

/////

26

1

27
28

Scott Kernan became Secretary of the California Department of Corrections and Rehabilitation
(CDCR) in January 2016, following the retirement of Jeffrey Beard effective January 1, 2016.
Secretary Kernan is therefore substituted in as a defendant in place of former Secretary Beard.
See Fed. R. Civ. P. 25(d).
1

1

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this

2

court has conducted a de novo review of this case. Having carefully reviewed the file, the court

3

adopts the recommendations for the reasons set forth in this order.

4

This matter is before the court on the motion to dismiss brought by former CDCR

5

Secretary Beard. The magistrate judge recommends that defendant Beard’s motion to dismiss be

6

granted as to plaintiff’s claims for injunctive relief intended to cure the alleged violations of his

7

Fourteenth Amendment due process rights, but denied to the extent they are intended to cure the

8

alleged violations of his equal protection rights. Defendant objects, arguing that any equal

9

protection claims against the CDCR Secretary were already dismissed and that the claims against

10

the Secretary “are limited to [plaintiff’s] request for the cessation of certain practices that

11

allegedly deprived him of due process and his request for an order to remediate those alleged

12

violations.” ECF No. 75 at 3 (emphasis added). Defendant’s objection is not supported by the

13

record. First, the court did not dismiss plaintiff’s equal protection claims. See ECF No. 43 at 19-

14

21; ECF No. 46. Second, the court did not limit plaintiff’s request for injunctive relief to his due

15

process claims. On June 17, 2014, the undersigned adopted the magistrate judge’s findings and

16

recommendations, which construed plaintiff’s complaint as including “claims for prospective

17

injunctive relief against the current Secretary of CDCR concerning the challenged CDCR policies

18

and procedures plaintiff identifies in his allegations.” ECF No. 43 at 30-31; ECF No. 46. The

19

challenged CDCR policies and procedures that plaintiff identifies in his allegations include those

20

tied to his equal protection claims. For these reasons, defendant’s objections are overruled.

21

Plaintiff objects to the magistrate judge’s finding that his due process claims against the

22

Secretary of CDCR fall within the subject matter of a pending class action, Ashker v. Governor of

23

Cal., No. C-09-5796 CW (N.D. Cal.), that plaintiff is a member of the Ashker class, and that his

24

due process claims should therefore be dismissed under the authority of Crawford v. Bell, 599

25

F.2d 890, 892-93 (9th Cir. 1979). As the magistrate judge found, Crawford holds that “a district

26

court may properly dismiss portions of an individual lawsuit that are duplicative of a pending

27

class action in which the plaintiff is a class member.” ECF No. 73 at 2. Plaintiff objects that he

28

is not seeking the same relief here as is sought by the Ashker plaintiffs and, in particular, that a
2

1

decision in favor of the Ashker plaintiffs would not result in plaintiff’s release from the Pelican

2

Bay SHU or expungement of the evidence used to validate him as a gang member from his prison

3

file.

4

Plaintiff’s due process claim is a challenge to the quantum of evidence used to validate

5

him as a gang membership and the reliability of the confidential statements relied on during the

6

validation process. See ECF No. 43 at 16-17. He seeks relief in the form of orders requiring,

7

inter alia, his transfer from the Pelican Bay SHU and expungement from his file of any reference

8

to gang affiliation based on unreliable evidence or evidence insufficient to support a gang

9

validation. See ECF No. 1 at 20.

10

Plaintiff is a member of the Ashker class. The Ashker plaintiffs seek broad relief

11

concerning policies and procedures regarding placement and retention of gang affiliates in the

12

Pelican Bay SHU, and for the reasons set forth in the findings and recommendations that relief

13

would not be available to plaintiff in this action. Moreover, plaintiff has been transferred from

14

the Pelican Bay SHU, see ECF No. 81, and his request for relief from the SHU is therefore moot.

15

By this action plaintiff also seeks to set aside his gang validation. While plaintiff is a

16

member of the Ashker class, the Ashker plaintiffs are not challenging individual gang validation

17

determinations. See Plaintiffs’ Supplemental Complaint, ECF No. 388, filed March 11, 2015 in

18

Ashker v. Brown, Case No. 4:09-cv-05796-CW.2 Plaintiff’s remaining due process claim is not

19

duplicative of claims raised in Ashker and the expungement of gang validation information from

20

his prison record is not available to him as a member of the Ashker class. However, it is settled in

21

this action that the CDCR Secretary is only a defendant to the extent plaintiff seeks relief related

22

“to policies and procedures regarding gang validation and the placement/retention of gang

23

affiliates in the SHU.” ECF No. 43 at 29; ECF No. 46. Plaintiff’s due process claim challenges

24

his individual validation as a gang member; it does not implicate CDCR policies and procedures

25

regarding gang validation. Thus, even though defendant Beard only sought dismissal on the

26

ground that the relief plaintiff seeks is encompassed by the Ashker class action, prior rulings in

27
28

2

The court may take judicial notice of the Ashker complaint. See MGIC Indem. Corp. v.
Weisman, 803 F.2d 500, 504 (9th Cir. 1986).
3

1

this action establish that he is not a proper defendant on plaintiff’s due process claim. For these

2

reasons, plaintiff’s due process claim against defendant Beard will be dismissed.

3

Accordingly, IT IS HEREBY ORDERED that:

4

1. The findings and recommendations filed June 30, 2015, are adopted in part, with the

5

above replacing that portion of the magistrate judge’s findings that is not consistent with the

6

discussion here;

7

2. Defendant Beard’s motion to dismiss (ECF No. 58) is granted as to plaintiff’s claims

8

for injunctive relief intended to cure the alleged violations of his Fourteenth Amendment due

9

process rights and otherwise denied;

10

3. Scott Kernan is substituted in as a defendant in place of Jeffrey Beard; and

11

4. Defendant Kernan is directed to file an answer to the complaint within 14 days from

12

the date of this order.

13

DATED: February 4, 2016

14
15
16

UNITED STATES DISTRICT JUDGE

17
18
19
20
21
22
23
24
25
26
27
28
4