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Gray v. Hernandez

August 27, 2009

GREGORY LEE GRAY, PLAINTIFF,
v.
ROBERT HERNANDEZ ET AL., DEFENDANTS.



The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge

ORDER ADOPTING REPORT AND RECOMMENDATIONS Doc. Nos. 14 and 26

Plaintiff Gregory Lee Gray ("Plaintiff"), a state prisoner appearing pro se and in forma pauperis, initiated this action under 42 U.S.C. § 1983 on June 26, 2008, claiming his civil rights were violated in June 2007 when he was housed at R.J. Donovan State Prison. (Doc. No. 1, "Compl.") Named defendants Hernandez, Marrero, Sterling, and Peterson, move to dismiss Plaintiff's Complaint pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6). (Doc. No. 14, "Mot.") Plaintiff filed an opposition to the motion. (Doc. No. 22.)

On May 13, 2009, Magistrate Judge Leo S. Papas issued a Report and Recommendations (Doc. No. 26, "R&R") recommending this court GRANT in part and DENY in part the motion to dismiss. Plaintiff and Defendants each filed objections to the R&R. (Doc. No. 28, "Pl. Obj."; Doc. No. 30, "Defs.' Obj.") Plaintiff also submitted a reply to Defendants' objections. (Doc. No. 33, "Pl. Reply.")

Having carefully considered the thorough and thoughtful R&R, the record before the court, Plaintiff's and Defendants' objections, and the applicable authorities, the court wholly ADOPTS THE R&R.

I. Background

On January 22, 2007, while housed at Donovan State Prison, Plaintiff filed a grievance against Defendants Hernandez, Marrero, Sterling, and Peterson, complaining they had denied him access to the law library and to the courts. (Compl. at 1.) Plaintiff's grievance and subsequent appeals were denied up to the third level of review. Plaintiff then filled out a SC-100 form in preparation for filing a suit in Small Claims Court against the same defendants. (Compl. at 3.) Prior to filing the suit, Plaintiff gave Defendants Sterling and Peterson each a note in which he informed them he was suing them for $1666.20 for denying him access to the law library and for failing to provide him with materials necessary to file legal papers. (Id.) In the note, Plaintiff offered to settle the suit for $200 from each defendant provided the funds were not applied toward any restitution he owed. (Id.)

Rather than responding to the "offer," Defendants Sterling and Peterson filed rule violation charges against Plaintiff, stating Plaintiff attempted to extort money from them in an unlawful manner in violation of California Code of Regulations ("CCR") § 3013, and they were concerned for their safety and security. (Compl., Exh. A.) On June 18, 2007, Plaintiff was charged with extortion and placed in Administrative Segregation ("Ad Seg") by Defendant Marrero pending an investigation. (Id. at 3.) Plaintiff contends Defendants filed the charges and placed him in Ad Seg to prevent him from filing his Small Claims Court action. On July 29, 2007, following an internal investigation and evidentiary hearing, Plaintiff was found not guilty of any Rules violations and the charges were dismissed. On August 16, 2007, Plaintiff filed his Small Claims Court lawsuit. (Compl. at 5.) He was ultimately released from Ad Seg on August 22, 2007 after completion of the Chief Disciplinary Officer's review of the proceedings. (Compl., Exh. D.) Plaintiff was subsequently transferred to Mule Creek State Prison on October 2, 2007 and then to High Desert State Prison on November 14, 2007.

Plaintiff sought administrative review of the officers' conduct through the prison appeals process. (Compl., Exh. D.) Plaintiff's grievance was denied at the Second Level of Review and at the Director's Level. (Id.) The review reports concluded Defendants acted in good faith in filing their reports and in complying with CCR § 3312(a)(3), and there was no evidence Defendants had maliciously fabricated false charges against Plaintiff. (Id.)

Plaintiff alleges claims for violation of his constitutional rights under the First, Eighth, and Fourteenth Amendments. He sues all defendants in their official and individual capacities, seeking injunctive relief and actual and punitive damages.

II. Legal Standard

The court reviews a magistrate judge's R&R according to the standards set forth in Fed. R. Civ. P. 72(b) and 28 U.S.C. § 636. The court reviews de novo those portions of the report to which objection is made. United States v. Raddatz, 447 U.S. 667, 673-74 (1980). "A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id.

Fed. R. Civ. P. 12(b)(6) allows for dismissal of a claim in "extraordinary" cases. United States v. Redwood City, 640 F.2d 963, 966 (9th Cir. 1081). In evaluating a 12(b)(6) motion, the court must accept the complaint's allegations as true, and construe them in a light most favorable to the plaintiff. See Concha v. London, 62 F.3d 1493, 1500 (9th Cir. 1995). The court should grant 12(b)(6) relief only where the complaint lacks either a "cognizable legal theory" or facts sufficient to support a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). At the same time, the complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). //

III. Discussion

A. Tardy Response to the Complaint

In his objections, Plaintiff reiterates his position that Defendants' motion is moot because they responded to the Complaint outside the 20-day period set by Rule 12(a). However, Defendants waived service of process and were thus entitled to 60 days to reply under ...


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