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Manago v. Williams

July 20, 2010

STEWART MANAGO, PLAINTIFF,
v.
BRAD WILLIAMS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER and FINDINGS AND RECOMMENDATIONS

Presently pending for decision by this court are the following motions recently filed by plaintiff: (1) Motion for Judicial Intervention, filed June10, 2010 (Dkt. No. 84); (2) Motion for a Senate Investigation, filed June 17, 2010 (Dkt. No. 85); (3) Motion for Protective Order, filed June 21, 2010 (Dkt. No. 86); (4) Motion for Reconsideration, filed June 21, 2010 (Dkt. No. 87); (5) Motion for Temporary Restraining Order, filed June 24, 2010 (Dkt. No. 88); and (6) Motion to Compel Discovery from Defendant Mary Brockett (Dkt. No. 81).

Plaintiff is presently incarcerated at California Correctional Institution, Tehachapi ("CCI"). This case proceeds on plaintiff's amended complaint, filed November 26, 2008, against individual defendants employed at California State Prison-Sacramento (referred to herein as "CSP-S," "CSP-Sac" or "CSP-Sacramento"), and the Office of Internal Affairs-Northern Region ("OIA") of the California Department of Corrections and Rehabilitation ("CDCR" or "Department"). The amended complaint alleges, inter alia, that although plaintiff was transferred to CSP-S in 2000 for the express purpose of facilitating his mental health treatment, he was there sexually harassed by correctional officer Mary Brockett. Plaintiff asserts that he participated in a sting operation against Brockett that resulted in her dismissal and that thereafter staff retaliated against plaintiff in several ways, including denying him adequate mental health treatment. The amended complaint alleges causes of action for excessive force, retaliation, deliberate indifference to plaintiff's mental health needs, failure to investigate plaintiff's complaints of sexual misconduct and to protect him accordingly, and failure to provide adequate supervision of correctional and mental health staff. (Dkt. No. 20, at 18-20.)

On February 26, 2010, this court recommended that plaintiff's motion for a temporary restraining order, his third request for injunctive relief, be denied. (Dkt. No. 74.) The district judge adopted this recommendation by order filed March 31, 2010. (Dkt. No. 76.) On May 14, 2010, this court recommended that defendants' motions to dismiss be granted in part and denied in part. (Dkt. No. 78.) In addition, the court denied plaintiff's motions for sanctions against defendants and their counsel, plaintiff's motion for judicial intervention, plaintiff's motion for protective order and his motion for court-ordered confidential calls. (Id.)

I. Motion for Judicial Intervention (Dkt. No. 84), and Motion for a Senate Investigation (Dkt. No. 85)

Both of these motions seek an order of this court directing the United States Attorney's Office and/or the California State Senate to investigate plaintiff's "Request for Senate Investigation" (Dkt. No. 84, Exh. A). Plaintiff asserts that he brings these matters before the court pursuant to 42 U.S.C. § 1985. The attached "Request" sets forth the chronology of this litigation and other allegations, including plaintiff's assertion that CDCR officials are engaged in ongoing criminal conduct and corruption, that the CDCR administration promotes policies and practices supporting organized crime within the Department cloaked in an ongoing "code of silence," and that CDCR officials have retaliated against plaintiff and other inmates for "whistle blowing," including improper reliance on the gang validation procedure. Plaintiff states that he has submitted the same information to CDCR staff, the Department's Office of Internal Affairs, the Secretary and Undersecretary of CDCR, the Office of the Inspector General and the Governor. (Dkt. No. 84, at 34.)

This court is without authority to direct that an investigation be conducted by the California Senate or the U.S. Attorney's Office. The tripartite system of our government depends upon the separate and co-equal powers of its judicial, legislative, and executive branches. Each of the entities plaintiff has contacted must evaluate plaintiff's allegations within the parameters of their respective authority.

Nor does plaintiff demonstrate that he has satisfied the preconditions for bringing suit on these matters pursuant to 42 U.S.C. § 1985.*fn1 Section 1985, Title 42, United States Code, proscribes conspiracies to interfere with civil rights. See, e.g., Haddle v. Garrison, 525 U.S. 121 (1998); Kush v. Rutledge, 460 U.S. 719 (1983); Griffin v. Breckenridge, 403 U.S. 88, 102-03 (1971). Plaintiff is limited to pursuing in this court only those cognizable allegations which he has administratively exhausted at the time he filed his complaint. McKinney v. Carey, 311 F.3d 1198 (9th Cir. 2002). As this court explained at length in its last order, with detailed analysis of each of plaintiff's administrative grievances, the Prison Litigation Reform Act ("PLRA") provides that "[n]o action shall be brought with respect to prison conditions under section 1983 [et seq.] of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted."

42 U.S.C. § 1997e(a). Not only does plaintiff fail to assert that he has exhausted his allegations of departmental conspiracy through the administrative grievance process but, even if he had, these issues would need to be pursued in separate actions based on the further requirement of the PLRA that all administrative remedies be exhausted prior to filing suit.

Thus, the court has no authority to grant any relief based on plaintiff's motion for judicial intervention or motion for a senate investigation. Accordingly, these motions will be denied.

II. Motion for Reconsideration (Dkt. No. 87)

Pursuant to this motion, plaintiff seeks reconsideration of the court's order entered March 3, 2010 (Dkt. No. 75), which adopted findings and recommendations filed January 28, 2010 (Dkt. No. 57). Plaintiff alleges that defendants' counsel, Shanan Hewitt, made false representations to the court in her declaration filed January 20, 2010 (Dkt. No. 56), and failed to comply with the court's orders filed July 13, 2009 (Dkt. No. 28) (setting forth general rules of compliance)*fn2 and January 14, 2010 (Dkt. No. 55) (which directed CDCR to respond to plaintiff's allegations that his rib injury was not being treated). Plaintiff seeks monetary sanctions and a court order requiring an independent medical examination.

The following background is pertinent. In his motion for preliminary injunction filed April 21, 2009, while plaintiff was housed at CSP-S, plaintiff alleged that he was at risk of assault and/or murder because prison staff were telling inmates that plaintiff was a "snitch" for providing testimony against Brockett. (Dkt. No. 23.) Plaintiff was thereafter transferred to the CCI. On October 16, 2009, plaintiff filed a "Motion for Special Hearing" wherein he alleged that on September 8, 2009, before his transfer to CCI, plaintiff had been assaulted by inmates at CSP-S and responding prison staff had "kicked plaintiff in his left rib area, and broke plaintiff['s] rib and failed to provide medical care in order to cover up this incident." (Dkt. No. 34, at 2.)

Plaintiff alleged, "[w]hen plaintiff kept complaining to staff and medical staff they subjected plaintiff to retaliatory transfer without further treatment or x-rays." (Id.) Plaintiff alleged that the assault was a "set up" by prison staff and that he remained in "serious pain without treatment" at CCI. (Id. at 3, 4.)

In response to these allegations, the prior magistrate judge ruled as follows (Dkt. No. 55, at 3-5):

As for plaintiff's statement that he has not been treated for injuries he received in the alleged assault at CSP-Sac, plaintiff makes that allegation as part of his request for a "special hearing," not as part of his motion for a preliminary injunction. Moreover, plaintiff does not allege that the defendants named in this action had any involvement in the treatment of injuries that allegedly stemmed from an assault by plaintiff's fellow inmates or from prison officials' attempts to stop the assault. Nonetheless, the allegation that plaintiff's injuries have not been treated is sufficiently serious, if true, such that the court construes it as a request for additional injunctive relief that requires a prompt response. Therefore the court will order the California Attorney General's office, as general counsel for the CDCR, to file a response to the allegation that plaintiff's rib injuries have not been treated. See 28 U.S.C. § 1651 [authorizing the issuance of a writ as necessary and appropriate]. . . . The court will hold review on the motion for a special hearing in abeyance until it receives a response concerning the treatment of plaintiff's injuries. . . . CDCR will file a response to the allegation that plaintiff's injuries are not being treated, as alleged in his motion for special hearing (Docket No. 34), no later than five days after the date of this order. . .

A timely response was filed by defendants' counsel, Shanan Hewitt, appearing on behalf of the CDCR. (Dkt. No. 56.) Hewitt stated that CDCR had requested that she, "rather than the California Attorney General's Office," respond to the Court's order. (Id. at 1, n. 1.) Hewitt responded as follows to plaintiff's allegations (id. at 1-2):

[T]he California Department of Corrections and Rehabilitation ("CDCR") hereby responds to Inmate Stewart Manago's (CDC No. E-02564) allegations regarding medical treatment at California ...


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