(PC) Gallegos v. Fernandez et al

Filing 11

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 11/21/2024 GRANTING Plaintiff's 7 Motion to Proceed IFP and DIRECTING Plaintiff to complete and return the Notice of Election form within 21 days. Plainti ff's 5 Request to Strike R. Fernandez as a defendant is GRANTED and the Clerk is DIRECTED to strike R. Fernandez as a defendant in this action. It is RECOMMENDED that Plaintiff's 2 Motion for Preliminary Injunctive Relief be denied without prejudice. Referred to Judge Daniel J. Calabretta. Objections due within 14 days after being served with these findings and recommendations. (Spichka, K.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BENJAMIN ROBERT GALLEGOS,

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No. 2:24-cv-2526 DJC CKD P

Plaintiff,
v.

ORDER AND

CALIFORNIA STATE PRISON,
SACRAMENTO,

FINDINGS AND RECOMMENDATIONS

Defendant.

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Plaintiff is a state prisoner proceeding pro se and seeking relief pursuant to 42 U.S.C. §

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1983. Plaintiff also seeks injunctive relief. This proceeding was referred to this court by Local

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Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

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I. Request to Proceed In Forma Pauperis

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Plaintiff requests leave to proceed in forma pauperis. As plaintiff has submitted a

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declaration that makes the showing required by 28 U.S.C. § 1915(a), his request will be granted.

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Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§

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1914(a), 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the

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initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court.

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Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding

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month’s income credited to plaintiff’s prison trust account. These payments will be forwarded by
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the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account

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exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).

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II. 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 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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The court has reviewed plaintiff’s complaint and finds that plaintiff may proceed on a

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claim for injunctive relief against defendant California State Prison, Sacramento for denial of

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plaintiff’s First Amendment right to intimate association premised upon plaintiff being denied

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visitation with his wife.

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At this point, plaintiff has two options: proceed on the claim identified above or file an

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amended complaint in an attempt to cure deficiencies with respect to the other claims. If plaintiff

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chooses to proceed on the claim described above, the court will construe this as a request to

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voluntarily dismiss the additional claims and defendants pursuant to Rule 41(a)(1)(i) of the

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Federal Rules of Civil Procedure.

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With respect to plaintiff’s other claims and assertions, plaintiff is informed as follows:

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1. Plaintiff asserts he has been denied and is being denied visits with his wife in

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retaliation for some “whistle blower” action on the part of the wife and plaintiff’s filing of

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lawsuits against correctional staff. To state a claim for retaliation, plaintiff must point to facts

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indicating a causal connection between the adverse action and the protected conduct, Watison v.

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Carter, 668 F.3d 1108, 1114 (9th Cir. 2012), which plaintiff has not done that in his complaint. It

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is not sufficient to plead that plaintiff suffered some harm as the result of protected conduct.

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Plaintiff must point to specific facts which permit the court to “draw the reasonable inference that

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the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

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2. Plaintiff does not have an absolute right to receive visitors while in prison. Dunn v.

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Castro, 621 F.3d 1196, 1203 (9th Cir. 2010). Generally, the denial of visitation does not amount

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to cruel and unusual punishment prohibited by the Eighth Amendment. Overton v. Bazzetta, 539

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U.S. 126, 137 (2003).

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3. Vague and conclusory allegations of official participation in civil rights violations are

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not sufficient. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). For example, a

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supervisor such as a warden is not liable for damages simply because he or she is a supervisor.

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There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or

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connection between a defendant’s actions and the claimed deprivation. Rizzo v. Goode, 423 U.S.

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362 (1976).
4. Plaintiff cannot proceed on claims against defendants he does not identify such as

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“Doe” defendants.
Finally, plaintiff is informed that the court cannot refer to a prior pleading in order to

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make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended

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complaint be complete in itself without reference to any prior pleading.

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III. Pending Motions

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A. Preliminary Injunctive Relief

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Plaintiff has filed a motion seeking preliminary injunctive relief. However, at this stage

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the court has no jurisdiction to order preliminary injunctive relief as no defendant has been served

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with process. Accordingly, the court will recommend that plaintiff’s motion for preliminary

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injunctive relief be denied without prejudice to refiling after defendant California State Prison,

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Sacramento appears in this action.

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B. Request to Strike Defendant Fernandez

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Plaintiff indicates that in his complaint he erroneously identified R. Fernandez as a

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defendant. Because there are no allegations against Fernandez, the court will order the Clerk of

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the Court to strike Fernandez as a defendant.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 7) is granted.

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2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees

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shall be collected and paid in accordance with this court’s order to the Director of the California

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Department of Corrections and Rehabilitation filed concurrently herewith.

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3. Plaintiff has the option to proceed immediately on a claim for injunctive relief against

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defendant California State Prison, Sacramento for denial of plaintiff’s First Amendment right to

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intimate association. In the alternative, plaintiff may choose to file an amended complaint to fix

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the deficiencies identified in this order with respect to the remaining claims.

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4. Within 21 days from the date of this order, plaintiff shall complete and return the

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attached Notice of Election form notifying the court whether he wants to proceed on the screened

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complaint or whether he wants time to file an amended complaint.

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5. If plaintiff fails to return the attached Notice of Election within the time provided, the

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court will construe this failure as consent to dismiss the deficient claims and proceed only on the

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cognizable claim identified above.

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6. Plaintiff’s request that R. Fernandez be stricken as a defendant (ECF No. 5) is granted.

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7. The Clerk of the Court shall strike R. Fernandez as a defendant in this action.

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IT IS HEREBY RECOMMENDED that plaintiff’s motion for preliminary injunctive

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relief (ECF No. 2) be denied without prejudice.

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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 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, plaintiff may file written objections

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with the court. The document should be captioned “Objections to Magistrate Judge’s Findings

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

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time waives the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th

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Cir. 1991).

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Dated: November 21, 2024
_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BENJAMIN ROBERT GALLEGOS,

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No. 2:24-cv-2526 DJC CKD P

Plaintiff,

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v.

NOTICE OF ELECTION

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R. FERNANDEZ, et al.,

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Defendants

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Check only one option:

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_____ 1. Plaintiff wishes to proceed on claim for injunctive relief against defendant California

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State Prison, Sacramento for denial of plaintiff’s First Amendment right to intimate association.

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_____ 2. Plaintiff wants time to file a first amended complaint.

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DATED:

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____________________

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Plaintiff

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