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Wiseman v. Hernandez

February 26, 2010

CHESTER RAY WISEMAN, PLAINTIFF,
v.
ROBERT J. HERNANDEZ, WARDEN; ET AL., DEFENDANT.



The opinion of the court was delivered by: Honorablelarryalanburns United States District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION

I. Introduction

Plaintiff Chester Ray Wiseman is a California prisoner currently incarcerated at Pleasant Valley State Prison in Coalinga, CA. The defendants are prison officials at R.J. Donovan Correctional Facility in San Diego, CA (where Wiseman was previously incarcerated), officials with the California Department of Corrections and Rehabilitation, and the Department of Corrections itself. Wiseman alleges that his constitutional rights were violated when he was denied access to the law library and deprived of outdoor exercise while incarcerated at R.J. Donovan.

The Court ADOPTS the R&R almost in its entirety. The only point of departure is that the Court does not believe amendment is justified with respect to certain defendants and claims.

II. Procedural History

Wiseman filed this lawsuit on July 14, 2008, and pursuant to 28 U.S.C. § 636(b) and Civil Local Rules 72.1(c) and (d) it was referred to Magistrate Judge Nita Stormes for a Report and Recommendation ("R&R"). On March 11, 2009, Wiseman filed a second amended complaint. The defendants filed a motion to dismiss two weeks later, on March 25, 2009. Judge Stormes issued her R&R on November 24, 2009, recommending that the motion to dismiss be granted in part and denied in part. Wiseman filed an objection on December 10, 2009. The defendants did not file an objection.

III. Legal Standards

This Court has jurisdiction to review the R&R pursuant to Rule 72 of the Federal Rules of Civil Procedure. "The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district court may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Fed. R. Civ. P. 72(b)(3). The district judge "must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).

Because Wiseman is a prisoner and is proceeding pro se, the Court construes his pleadings liberally and affords him the benefit of any doubt. See Karim-Panahi v. L.A. Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). That said, "[p]ro se litigants must follow the same rules of procedure that govern other litigants." King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).

IV. Wiseman's Claims

Wiseman divides his claims into three "counts." The first alleges he was "denied, prevented, delayed, and deprived of his rights to due process, access to a law library, legal assistance, access to the courts, equal protection under the laws, and subjected to cruel and unusual punishment." (Compl. at 3(a).*fn1 ) At root, this claim concerns three pending cases in state and federal court that Wiseman alleges he could not litigate because he was denied library access and basic legal assistance. On the Court's reading, this claim is only directed at defendants Hernandez, Garcia, Contreras, Marrero, Clardy, Van Cleave, Peterson, and presumably Sterling.*fn2 (See Compl. at 3(b)--(f).)

The second claim, very similar to the first, alleges that Wiseman "was denied, prevented, delayed, deprived of his rights to due process, access to his legal property, access to a law library, access to legal assistance, access to the courts, equal protection under the laws and subjected to undue cruel and unusual punishment." (Compl. at 4(a).) The section of Wiseman's complaint devoted to his second claim is lengthy and reads as a running commentary of grievances, but the core grievance appears to be that his legal property (presumably papers and research relating to his pending cases) was taken from him, stored, and never properly returned when he was placed in administrative segregation. Unlike his first claim, which names the specific defendants at whom the claim is directed, the second claim only references certain defendants in its running commentary: Hernandez, Morris, Warren, Van Cleave, Sterling, Cobb, and McBride.

Wiseman's third claim alleges that when he was housed in administrative segregation, for a period of six months, he was deprived of outdoor exercise. The third claim, like the second, does not explicitly name the defendants at whom it is directed, but in the accompanying statement of facts Wiseman names Hernandez, Garcia, Morris, McBride, Hubbard, and Moore.

V. Defendants' Motion to Dismiss and the Report and Recommendation

Defendants state six grounds upon which Wiseman's claims should be dismissed. The first two are grounds upon which certain defendants cannot be held liable in the first instance. The Department of Corrections, defendants argue, is absolutely immune under the Eleventh Amendment, and defendants Hernandez, Garcia, Contreras, Marrero, Clardy, Peterson, McBride, Moore and Hubbard cannot be held liable under a theory of respondeat superior. Defendants also argue that Wiseman has failed to exhaust his administrative remedies for his cruel and unusual punishment claim based upon his alleged deprivation of outdoor ...


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