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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*E-Filed 11/15/11*

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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SAN FRANCISCO DIVISION

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No. C 11-3593 RS (PR)

MARVIN R. GORDON,

ORDER DISMISSING COMPLAINT
WITH LEAVE TO AMEND

Plaintiff,

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v.

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MATTHEW CATE, et al.,

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Defendants.
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INTRODUCTION

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This is a federal civil rights action filed pursuant to 42 U.S.C. § 1983 by a pro se state

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prisoner. The Court now reviews the complaint pursuant to 28 U.S.C. § 1915A(a).
DISCUSSION

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A.

Standard of Review
A federal court must conduct a preliminary screening in any case in which a prisoner

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seeks redress from a governmental entity or officer or employee of a governmental entity.

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See 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and

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dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may

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No. C 11-3593 RS (PR)
ORDER DISMISSING COMPLAINT

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be granted or seek monetary relief from a defendant who is immune from such relief. See id.

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§ 1915A(b)(1),(2). Pro se pleadings must be liberally construed. See Balistreri v. Pacifica

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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

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to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)

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(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial

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plausibility when the plaintiff pleads factual content that allows the court to draw the

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reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting

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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

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cast in the form of factual allegations if those conclusions cannot reasonably be drawn from

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the facts alleged.” Clegg v. Cult Awareness Network, 18 F.3d 752, 754–55 (9th Cir. 1994).

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements:

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(1) that a right secured by the Constitution or laws of the United States was violated, and

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(2) that the alleged violation was committed by a person acting under the color of state law.

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See West v. Atkins, 487 U.S. 42, 48 (1988).

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B.

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Legal Claims
Plaintiff alleges that defendants, officials and employees of Soledad State Prison and

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the California Department of Corrections and Rehabilitation (“CDCR”), violated his

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constitutional rights. His claims arise from a search of his cell which yielded contraband,

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specifically two screwdrivers. According to the complaint, defendants charged him with

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misconduct, found him guilty, reassigned him to different housing, and confiscated his

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property. Plaintiff’s specific claims are that (1) defendants M. Lopp, S.E. Baumgardner, F.

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Ramos, R. Martinez, and S. Caravello, all correctional officers, retaliated against plaintiff in

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violation of his First and Eighth Amendment rights; (2) Lopp, Baumgardner, Ramos,

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Martinez, Caravello, R. Grounds, Warden of Soledad, and M. Cate, Director of CDCR,

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deprived him of property in violation of due process; (3) Lopp, Baumgardner, Ramos,

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No. C 11-3593 RS (PR)
ORDER DISMISSING COMPLAINT

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Martinez, and Caravello “overcharged plaintiff for an offense actually committed in

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retaliation” to prevent filing of administrative grievances; (4) Cate, Grounds, and Martinez

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have denied inmates the right to be heard prior to placement in segregated housing;

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(5) Caravello, Martinez, and Grounds knowingly prepared a false misconduct report;

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(6) Lopp, Mensing, and Clavijo knowingly prepared and submitted as evidence a false

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“confiscation receipt” in violation of due process;1 (7) Cate and Grounds deliberately

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deprived him of a mattress and pillow in violation of the Eighth Amendment; (8) Cate and

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Grounds deprived him of outdoor exercise time, deliberately subjected him to “excruciatingly

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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

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and Grounds placed him on a “more onerous and hybrid” work privilege entitlement group in

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violation of due process, and by so doing, (10) have denied him access to yard, telephone,

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library and other rehabilitative programs in violation of the Eighth Amendment; (11) Cate,

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Grounds, Mensing, Calvijo and Lopp have rendered the process for obtaining confiscated

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property unworkable; and (12) unnamed defendants have chilled his exercise of his First

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Amendment rights; and (13) Cate, Grounds, J. Truett, a correctional officer, and P. Mullen, a

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correctional officer, have prevented inmates from raising any claim relating to patterns of

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abuses by state actors, thereby violating the Eighth Amendment.

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Liberally construed, Claim 3, as stated in the complaint, is cognizable under § 1983.

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Plaintiff has not, however, alleged facts sufficient to state claims against R. Grounds and M.

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Cate, who occupy supervisory positions. Because there is no “pure” respondeat superior

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liability under section 1983, the requisite causal connection for section 1983 purposes may

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be established when an official sets in motion a “series of acts by others which the actor

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knows or reasonably should know would cause others to inflict” constitutional harms.

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Preschooler II v. Clark Co. Sch. Bd. of Trustees, 479 F.3d 1175, 1183 (9th Cir. 2007)

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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

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(citation removed). In order to hold supervisors liable under § 1983, a plaintiff must show

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“(1) that he possessed a constitutional right of which he was deprived; (2) that the [named

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defendants] had a policy; (3) that the policy ‘amounts to deliberate indifference’ to

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[plaintiff’s] constitutional right; and (4) that the policy is the “moving force behind the

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constitutional violation.” Anderson v. Warner, 451 F.3d 1063, 1070 (9th Cir. 2006)

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(citations removed). There also must be a “direct causal link” between the policy or custom

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and the injury, and plaintiff must be able to demonstrate that the injury resulted from a

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“permanent and well settled practice.” Id., citing McDade v. West, 223 F.3d 1135, 1141 (9th

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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

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Consequently, Claims 2 & 5–6 are DISMISSED with leave to amend.

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Claims 1, 4 & 7–13 are DISMISSED without leave to amend on grounds that they are

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unrelated to the other claims. See Fed. R. Civ. P. 15 & 20. If plaintiff seeks relief for Claims

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1, 4 & 7–13, he must file a separate civil rights action or actions.

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In light of the foregoing, the complaint is DISMISSED with leave to amend. Plaintiff

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shall file an amended complaint within 30 days from the date this order is filed. The first

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amended complaint must include the caption and civil case number used in this order

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(11-3593 RS (PR)) and the words FIRST AMENDED COMPLAINT on the first page.

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Because an amended complaint completely replaces the previous complaints, plaintiff must

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include in his first amended complaint all the claims he wishes to present and all of the

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defendants he wishes to sue. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992).

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Plaintiff may not incorporate material from the prior complaint by reference. Failure to file

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an amended complaint in accordance with this order will result in dismissal of this action

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without further notice to plaintiff.

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It is plaintiff’s responsibility to prosecute this case. Plaintiff must keep the Court

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informed of any change of address by filing a separate paper with the clerk headed “Notice

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of Change of Address.” He must comply with the Court’s orders in a timely fashion or ask

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for an extension of time to do so. Failure to comply may result in the dismissal of this

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action pursuant to Federal Rule of Civil Procedure 41(b).

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IT IS SO ORDERED.

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DATED: November 14, 2011
RICHARD SEEBORG
United States District Judge

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United States District Court
For the Northern District of California

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No. C 11-3593 RS (PR)
ORDER DISMISSING COMPLAINT

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