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Avina v. Crondagar

May 14, 2010

JOSE AVINA, PLAINTIFF,
v.
J. CRONDAGAR, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF CERTAIN CLAIMS AND DEFENDANTS

(Doc. 12)

OBJECTIONS, IF ANY, DUE WITHIN 30 DAYS

Findings and Recommendations Following Screening

I. Background

A. Procedural History

Plaintiff Jose Avina ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action by filing his complaint on February 25, 2009. On June 25, 2009, the Court screened Plaintiff's complaint and ordered Plaintiff either to file a first amended complaint or notify the Court of his willingness to proceed only on claims found to be cognizable in the order. On October 29, 2009, Plaintiff filed his first amended complaint.

B. Screening Requirement

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).

A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id. at 1949.

II. Summary of First Amended Complaint And Analysis

Plaintiff is incarcerated at Corcoran State Prison ("CSP") in Corcoran, California, where the events giving rise to this action occurred. Plaintiff names as Defendants: lieutenant Institutional Gang Investigator ("IGI") J. Cronjager*fn1 , IGI M. Lunes, members of Office of Correctional Safety ("OCS") M. Ruff, Everett W. Fisher, and Reuben Roman, chief deputy warden R. Lopez, Sgt. Moore, IGI J. C. Garcia, IGI Sgt. M. Dotson, IGI Captain F. Fields, appeals coordinator V. J. Castillo, acting chief deputy warden D. Ortiz, Director of CDCR Doe 1, recorder of CDCR Doe 2, and Does 3 through 6, responsible for training Corcoran and OCS defendants.

Plaintiff alleges retaliation in of the First Amendment, and a violation of the Due Process Clause of the Fourteenth Amendment.*fn2 Plaintiff seeks injunctive relief and monetary damages.*fn3

A. Claims Against J. Cronjager and Lunes

Plaintiff was incarcerated in the Security Housing Unit due to a validation as a gang member since December 13, 1999. (Am. Compl. ¶ 19.) Plaintiff alleges that on November 8, 2006, Defendants Cronjager and Lunes placed Plaintiff in the 4B-4R rotunda cages. (Am. Compl. ¶ 23.) Defendant Cronjager handed Plaintiff a CDC 1030 confidential disclosure form and took pictures of him. (Id.) The CDC 1030 alleged confidential informant identification that Plaintiff was an active associate from the middle of August 2003 through September 2004, and passed verbal and written gang information on behalf of the NS (Northern Structure) prison gang. (Am. Compl. ¶ 24.) Plaintiff disputed the evidence as vague and not supported by any evidence. (Id.) Plaintiff stated that the confidential information was a laundry list, which CDCR in another lawsuit had agreed it would no longer rely upon. (Am. Compl. ¶ 25.) Defendant Lunes exclaimed, "We don't give a shit about your legal begal (sic) bullshit!" (Id.) Defendant Cronjager told Plaintiff to express whatever he wanted to say now, and Plaintiff told Defendant that he would need at least 24 hours to prepare a defense. (Am. Compl. ¶ 26.) Defendant Cronjager became angry and stated, "We ...


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