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Wolfe v. Alameida

August 6, 2008

MARION C. WOLFE, JR., PLAINTIFF,
v.
EDWARD S. ALAMEIDA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Introduction

Plaintiff, evidently now a former state prisoner proceeding pro se,*fn1 seeks relief pursuant to 42 U.S.C. § 1983. Pending before the court is defendants' motion to dismiss, filed on 9/13/07, to which plaintiff filed an opposition, after which defendants filed their reply. This action now proceeds on plaintiff's third amended complaint, filed on 11/15/06, plaintiff's second amended complaint having been dismissed/stricken with leave to amend. Because this case has a somewhat tortured history, the court finds it useful and most efficient to provide background and context by quoting from a prior order:

Plaintiff's original complaint, filed on 12/16/03, named some eighteen defendants in a lengthy complaint accompanied by no less than four volumes of exhibits, exhibits which were not specifically cross-referenced in the complaint itself. This court dismissed plaintiff's broad-sweeping, largely tenuous, and occasionally incoherent allegations as, inter alia, violative of Fed. R. Civ. P. 8. Plaintiff was admonished, should he choose to file an amended complaint, not to submit additional exhibits. See Order, filed on March 30, 2004, p. 7.

Nevertheless, upon filing his first amended complaint, plaintiff, in addition to failing to cure the defects of the original complaint, filed three volumes of exhibits. When the first amended complaint was subsequently dismissed, the three volumes of exhibits were stricken and plaintiff was directed, in any second amended complaint, not to exceed 20 pages in length and to file no additional exhibits. See Order, filed on October 13, 2004, pp. 9-10.

Upon plaintiff's filing of a second amended complaint, this court found service appropriate upon, and directed service upon some sixteen defendants, but recommended dismissal of four defendants from this action. See Orders, filed on June 15, 2005, and on July 21, 2005, and Findings and Recommendations, filed on June 14, 2005. The findings and recommendations were adopted, by Order, filed on September 20, 2005, and defendants Alleva, Bradley, Joyce and Smith were dismissed from this action. The sixteen defendants upon whom the court directed service of process included defendants Jeanne S. Woodford; Edward S. Alameida; Deuel Vocational Institute employees: Claude E. Finn; S.R. Moore; B. Simon; S. Schlatter; Bobby Jones; J. Anotiada; R.D. McElmore; Facio; CSP-Old Folsom employees: Mike Knowles; Diana K. Butler; Michael D. Bunnell; James T. Blair; Douglas C. Peterson; Tami Falconer.

Defendants brought a motion to strike the second amended complaint. Defendants' motion was granted and plaintiff was directed not to rely on exhibits to form the factual predicate or substance of his allegations in a third amended complaint, finding defendants' point well-taken that plaintiff had relied too heavily on exhibits. See Order, filed on September 7, 2006.

In the present motion to strike the third amended complaint, defendants assert that plaintiff has failed to rectify the defects of his second amended complaint. The court will deny the motion to strike the entire amended allegations, at least in part because plaintiff has made an effort not to rely so extensively on his exhibits to form the predicate of those allegations, but will grant defendants' motion to screen the third amended complaint.

Upon review of the third amended complaint,[] the court finds that, albeit arguably tenuously, plaintiff states a cognizable claim for relief pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b) as to the following previously served defendants: Bobby Jones; S.

Schlatter; Douglas C. Peterson; R. D. McElmore; Facio; Bunnell (as to the claim of retaliation in the form of requiring repeated urine tests from plaintiff for filing grievances only). from Order and Findings and Recommendations, filed on 6/15/07, pp. 2-3, adopted by Order, filed on 9/13/07, dismissing defendants Alameida, Finn, Moore, Simon, Falconer, Butler, Blair, Knowles, Woodford, and Anotiada, as well as all claims against defendant Bunnell, with the exception of the claim of subjecting plaintiff to repeated urine tests as a form of retaliation for filing grievances.

Third Amended Complaint

Thus, this action proceeds on a third amended complaint, which, as noted, was filed on 11/15/06, and subsequently modified, as set forth above, such that only the following defendants and claims remain: Bobby Jones; S. Schlatter; Douglas C. Peterson; R. D. McLemore;*fn2 Facio; Bunnell (as to Bunnell, the claim of retaliation in the form of requiring repeated urine tests from plaintiff for filing grievances only).

Defendant Jones

As to defendant B. Jones, plaintiff claims that this individual, a senior registered nurse and plaintiff's work supervisor while plaintiff was a paid RC medical clerk, submitted a "fraudulent" CDC-101 work supervisory report on 4/11/02, for a date when Jones did not work, to remove plaintiff from his job, a retaliatory act for plaintiff's having exercised his First Amendment right to file grievances related to defendant Jones' actions in discriminating against African Americans in the areas of promotions, pay increases and dismissal. In addition, defendant Jones is accused of "suggesting" plaintiff "abandon pursuit" of "civil/criminal relief" related to plaintiff's criminal conviction. Third Amended Complaint (TAC), p. 4. As a more nefarious form of retaliation, plaintiff alleges that defendant Jones was personally involved and conspired with an unknown RN to inject plaintiff with "deadly Hep. C and incurable Herpes viruses on 12/11/01 under the ruse of a 'flu shot.'" Plaintiff contends that defendant thereafter conspired to conceal blood tests showing the viruses and that defendant Jones knew by way of a 12/05/01 blood test noted in plaintiff's medical records that he was not infected at the time of the flu shot. Plaintiff alleges violations of his rights under the First, Fourteenth and Eighth Amendments by defendant Jones. TAC, 4-5.

Defendant S. Schlatter

Plaintiff, alleging violations of his rights under the First and Fourteenth Amendments as to defendant Schlatter, Deuel Vocational Institute (DVI) law librarian, contends that this defendant denied him access to the courts by not providing adequate services for plaintiff to timely file his "completed non-frivolous civil rights action," identified as Civil Case Number 02AS03043. TAC, 5. Plaintiff avers that on 4/26/02, plaintiff apprised Schlatter of a 5/07/02, filing deadline for his civil malpractice action based on his sentencing date but that this defendant refused plaintiff's "request for copies, two hole punch, and fee waiver," stating that he "had to check into the matter through the California Supreme Court...." Id. at 6. Plaintiff filed an emergency appeal Log No. DVI 02-00843(10) on 4/29/02, to which defendant Schlatter responded, "knowing this is illegal," that the CDC was not required to provide assistance in civil matters. Id. When plaintiff, on 4/29/02, mailed the civil action without the fee waiver, copies or two-hole punching, it was returned by the court clerk on 5/03/04 for failure to comply with court rules (regarding copies, fee waiver, etc.). Plaintiff filed the complaint on 5/22/02, but it was ultimately dismissed as untimely. Id.

Plaintiff also alleges that somehow when (non-defendant) Officer Reed returned a sealed, unopened envelope, on 5/03/02, that contained a denial of plaintiff's habeas petition to the Third District Court of Appeal regarding his criminal conviction, and stated, "Now who you gonna sue," this indicates that defendant Schlatter was involved with the state appellate and supreme courts and a court clerk named "Conrad," keeping courts apprised of plaintiff's intent to sue, which information assured the denials of plaintiff's state criminal appeal and habeas corpus petition filings. Id. Plaintiff alleges that Schlatter's 4/29/02 inquiry to the state court was not to ascertain deadlines, since he knew in advance that neither the Third DCA or state supreme court ...


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