Gordon v. Cate et al

Filing 6

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND. Signed by Judge Richard Seeborg on 11/14/11. (Attachments: # 1 Appendix Certificate of Service)(cl, COURT STAFF) (Filed on 11/15/2011)

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1 2 3 *E-Filed 11/15/11* 4 5 6 7 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 United States District Court For the Northern District of California 8 SAN FRANCISCO DIVISION 11 12 No. C 11-3593 RS (PR) MARVIN R. GORDON, ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND Plaintiff, 13 v. 14 15 MATTHEW CATE, et al., 16 Defendants. / 17 INTRODUCTION 18 This is a federal civil rights action filed pursuant to 42 U.S.C. § 1983 by a pro se state 19 20 prisoner. The Court now reviews the complaint pursuant to 28 U.S.C. § 1915A(a). DISCUSSION 21 22 23 A. Standard of Review A federal court must conduct a preliminary screening in any case in which a prisoner 24 seeks redress from a governmental entity or officer or employee of a governmental entity. 25 See 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and 26 dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may 27 28 No. C 11-3593 RS (PR) ORDER DISMISSING COMPLAINT 1 be granted or seek monetary relief from a defendant who is immune from such relief. See id. 2 § 1915A(b)(1),(2). Pro se pleadings must be liberally construed. See Balistreri v. Pacifica 3 Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). A “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim 4 5 to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) 6 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial 7 plausibility when the plaintiff pleads factual content that allows the court to draw the 8 reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting 9 Twombly, 550 U.S. at 556). Furthermore, a court “is not required to accept legal conclusions United States District Court For the Northern District of California 10 cast in the form of factual allegations if those conclusions cannot reasonably be drawn from 11 the facts alleged.” Clegg v. Cult Awareness Network, 18 F.3d 752, 754–55 (9th Cir. 1994). 12 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: 13 (1) that a right secured by the Constitution or laws of the United States was violated, and 14 (2) that the alleged violation was committed by a person acting under the color of state law. 15 See West v. Atkins, 487 U.S. 42, 48 (1988). 16 B. 17 Legal Claims Plaintiff alleges that defendants, officials and employees of Soledad State Prison and 18 the California Department of Corrections and Rehabilitation (“CDCR”), violated his 19 constitutional rights. His claims arise from a search of his cell which yielded contraband, 20 specifically two screwdrivers. According to the complaint, defendants charged him with 21 misconduct, found him guilty, reassigned him to different housing, and confiscated his 22 property. Plaintiff’s specific claims are that (1) defendants M. Lopp, S.E. Baumgardner, F. 23 Ramos, R. Martinez, and S. Caravello, all correctional officers, retaliated against plaintiff in 24 violation of his First and Eighth Amendment rights; (2) Lopp, Baumgardner, Ramos, 25 Martinez, Caravello, R. Grounds, Warden of Soledad, and M. Cate, Director of CDCR, 26 deprived him of property in violation of due process; (3) Lopp, Baumgardner, Ramos, 27 No. C 11-3593 RS (PR) ORDER DISMISSING COMPLAINT 28 2 1 Martinez, and Caravello “overcharged plaintiff for an offense actually committed in 2 retaliation” to prevent filing of administrative grievances; (4) Cate, Grounds, and Martinez 3 have denied inmates the right to be heard prior to placement in segregated housing; 4 (5) Caravello, Martinez, and Grounds knowingly prepared a false misconduct report; 5 (6) Lopp, Mensing, and Clavijo knowingly prepared and submitted as evidence a false 6 “confiscation receipt” in violation of due process;1 (7) Cate and Grounds deliberately 7 deprived him of a mattress and pillow in violation of the Eighth Amendment; (8) Cate and 8 Grounds deprived him of outdoor exercise time, deliberately subjected him to “excruciatingly 9 cold temperatures” and excessive noise, all in violation of the Eighth amendment;2 (9) Cate United States District Court For the Northern District of California 10 and Grounds placed him on a “more onerous and hybrid” work privilege entitlement group in 11 violation of due process, and by so doing, (10) have denied him access to yard, telephone, 12 library and other rehabilitative programs in violation of the Eighth Amendment; (11) Cate, 13 Grounds, Mensing, Calvijo and Lopp have rendered the process for obtaining confiscated 14 property unworkable; and (12) unnamed defendants have chilled his exercise of his First 15 Amendment rights; and (13) Cate, Grounds, J. Truett, a correctional officer, and P. Mullen, a 16 correctional officer, have prevented inmates from raising any claim relating to patterns of 17 abuses by state actors, thereby violating the Eighth Amendment. 18 Liberally construed, Claim 3, as stated in the complaint, is cognizable under § 1983. 19 Plaintiff has not, however, alleged facts sufficient to state claims against R. Grounds and M. 20 Cate, who occupy supervisory positions. Because there is no “pure” respondeat superior 21 liability under section 1983, the requisite causal connection for section 1983 purposes may 22 be established when an official sets in motion a “series of acts by others which the actor 23 knows or reasonably should know would cause others to inflict” constitutional harms. 24 Preschooler II v. Clark Co. Sch. Bd. of Trustees, 479 F.3d 1175, 1183 (9th Cir. 2007) 25 26 1 27 2 This is a consolidation of Claims 6 & 7 listed in the complaint. This is a consolidation of Claims 9, 10 & 11 listed in the complaint. No. C 11-3593 RS (PR) ORDER DISMISSING COMPLAINT 28 3 1 (citation removed). In order to hold supervisors liable under § 1983, a plaintiff must show 2 “(1) that he possessed a constitutional right of which he was deprived; (2) that the [named 3 defendants] had a policy; (3) that the policy ‘amounts to deliberate indifference’ to 4 [plaintiff’s] constitutional right; and (4) that the policy is the “moving force behind the 5 constitutional violation.” Anderson v. Warner, 451 F.3d 1063, 1070 (9th Cir. 2006) 6 (citations removed). There also must be a “direct causal link” between the policy or custom 7 and the injury, and plaintiff must be able to demonstrate that the injury resulted from a 8 “permanent and well settled practice.” Id., citing McDade v. West, 223 F.3d 1135, 1141 (9th 9 Cir. 2002). Plaintiff’s allegations as to Grounds and Cate do not meet these requirements. United States District Court For the Northern District of California 10 Consequently, Claims 2 & 5–6 are DISMISSED with leave to amend. 11 Claims 1, 4 & 7–13 are DISMISSED without leave to amend on grounds that they are 12 unrelated to the other claims. See Fed. R. Civ. P. 15 & 20. If plaintiff seeks relief for Claims 13 1, 4 & 7–13, he must file a separate civil rights action or actions. 14 In light of the foregoing, the complaint is DISMISSED with leave to amend. Plaintiff 15 shall file an amended complaint within 30 days from the date this order is filed. The first 16 amended complaint must include the caption and civil case number used in this order 17 (11-3593 RS (PR)) and the words FIRST AMENDED COMPLAINT on the first page. 18 Because an amended complaint completely replaces the previous complaints, plaintiff must 19 include in his first amended complaint all the claims he wishes to present and all of the 20 defendants he wishes to sue. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). 21 Plaintiff may not incorporate material from the prior complaint by reference. Failure to file 22 an amended complaint in accordance with this order will result in dismissal of this action 23 without further notice to plaintiff. 24 25 26 27 No. C 11-3593 RS (PR) ORDER DISMISSING COMPLAINT 28 4 1 It is plaintiff’s responsibility to prosecute this case. Plaintiff must keep the Court 2 informed of any change of address by filing a separate paper with the clerk headed “Notice 3 of Change of Address.” He must comply with the Court’s orders in a timely fashion or ask 4 for an extension of time to do so. Failure to comply may result in the dismissal of this 5 action pursuant to Federal Rule of Civil Procedure 41(b). 6 IT IS SO ORDERED. 7 DATED: November 14, 2011 RICHARD SEEBORG United States District Judge 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 No. C 11-3593 RS (PR) ORDER DISMISSING COMPLAINT 28 5

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