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Lopez v. Schwarzenegger

October 4, 2010

ANDREW RICK LOPEZ, PLAINTIFF,
v.
ARNOLD SCHWARZENEGGER, ET AL., DEFENDANTS.



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

FINDINGS AND RECOMMENDATIONS

Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action filed pursuant to 42 U.S.C. § 1983. By a concurrently filed order, the court has found a number of defendants appropriate for service. However, as to plaintiff's remaining defendants and claims, the court will recommend dismissal for the reasons set forth below.

As plaintiff was previously informed, 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).

A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.

A complaint must contain more than a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 (2007). "The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure 1216, pp. 235-235 (3d ed. 2004). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, No. 07-1015, 2009 WL 1361536 at * 12 (May 18, 2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.

In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740, 96 S.Ct. 1848 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843 (1969).

Although the court in the original screening order set forth in detail the defects to be remedied in any amended complaint, plaintiff does not appear, despite the significant passage of time he has had to do so, to have adequately heeded it with respect to a number of the named defendants and his claims. In the original complaint, plaintiff had named nearly 30 defendants; it is not even clear in the amended complaint how many defendants he seeks to name. Within the case caption, plaintiff names 24 defendants. Amended Complaint (AC), p. 1. In the portion of the form complaint under the heading of "Defendants," plaintiff lists 23 individuals. Id. at 2-3. Within the body of the 40-page amended complaint wherein he sets forth names and responsibilities of the defendants (on information and belief), he sets forth 18 defendants, but then adds a 19th (Cronjeager), without alleging what his/her responsibilities are. AC, pp. 5-10. Nevertheless, the court by careful review of the amended complaint has found some fifteen defendants appropriate for service (with one, Matthew Cate, only appropriate in an official capacity).

Plaintiff begins inauspiciously by launching into his sweeping allegations that the California Department of Corrections and Rehabilitation (CDCR) ignores its obligations as set forth in CAL. CODE REGS. tit.xv, permitting policies, practices and procedures that permit "employee prison gangs to expand and climb the ranks within the CDCR...allowing the code-of-silence and unlawful activities of employee gangs to continue unabated." AC, p. 12. Plaintiff alleges that CDCR policies and practices result in false, unreliable confidential information being documented and placed in inmate files. Id. CDCR and the defendant Governor's "failures to remove employee gangs and stamp out the code-of-silence" results in a policy or practice of deliberate indifference to the rights of inmates, according to plaintiff. Id. at 13. A February 10, 1995, memorandum written by then-Deputy Director of the CDCR institutions division, David Tristan, regarding a warden's meeting agenda acknowledges the CDCR code-of-silence custom, policy or practice signified dishonesty in reporting or failing to report prisoner rights' violations, including due process rights and the right to free speech with regard to disciplinary and validation issues. Id.

Plaintiff finally begins to relate the alleged policies, albeit in a generic manner, to himself, asserting that the aforementioned policies and practices have resulted in his having been denied due process with regard to disciplinary charges and gang validation and inactive status.

AC, p. 13. He also claims that he has been subjected to false and retaliatory disciplinary charges and guilty findings, that he has been denied parole and subjected to the SHU (security housing unit), denied law library access and suffered retaliation for the filing of grievances and court actions and that both CDCR and the BPH (Board of Parole Hearings) have intentionally placed and maintained inaccurate records in plaintiff's files and have refused plaintiff's requests to remove them, which has resulted, and will continue to result, in determinations that are adverse to him. Id.

Plaintiff then, in even greater detail than he did in his original complaint, goes on to recount what appears to be his incarceration history, referencing his having been incarcerated at DVI,*fn1 from June 1992 until October 1994. AC, p. 14. In an apparent non sequitur, although he does not name (former CDCR Director) Alameida as a defendant, plaintiff then claims that in 2008, Alameida escaped "due to his health" federal obstruction of justice charges related to his CDCR employment. Id. Without specifying when, what case he is referencing, who was named and what was at issue, plaintiff states that 30 days after he filed a § 1983 action against a CDCR employee,*fn2 unnamed CDCR employees issued disciplinary charges against him, alleged confidential information against him and placed him in segregation. AC, pp. 14, 28. Plaintiff conclusorily contends that Alameida approved these actions. Id. at 14.

Plaintiff alleges that when he was subsequently incarcerated at CSP-Sac (California State Prison-Sacramento) from October, 1994 through January of 1997, at which point he was transferred to High Desert State Prison (HDSP), the § 1983 action that he filed at DVI was pending and his ability to litigate his unidentified case was obstructed due to prison lockdowns, loss of property by employees and an inability to maintain legal assistance. AC, p. 14. At this point, the court notes that plaintiff has failed to link any of these allegations to any named defendants, and it appears grandiose on its face, that he appears to be at least implying that institutional lockdowns, for example, were imposed at CSP-Sac for the purpose of hindering his § 1983 case filed at DVI. Moreover, property losses and difficulties in obtaining legal assistance appear to be common occurrences in prison and do not, of themselves, implicate a CDCR policy or practice.

Plaintiff continues with his historical litany, alleging that after his arrival at HDSP in Jan., 1997, prison employees (unnamed again) "'misplaced' a large amount" of plaintiff's legal property, which was ultimately forwarded to him in August 2002, after he missed an AEDPA deadline, even though an (unidentified) prison employee had submitted a declaration in 1997 to the federal court that plaintiff had received all of his property. AC, p. 14. Plaintiff then references a § 1983 complaint he says that he filed in August, 1998, primarily involving HDSP employees, still pending. Id. Again, plaintiff fails to identify the case at this point.*fn3 Plaintiff alleges that following the filing of the action in 1998, HDSP employees "including CDCR employee gang affiliates, increased acts of retaliation" against him. Id. Again, plaintiff links no named defendants to this generic allegation. Plaintiff asserts he filed a grievance against a P. Haas, an individual not named as a defendant in this action. Id. Plaintiff then claims that he was denied a transfer from HDSP although he was eligible and had not been found guilty of a disciplinary charge since 1996. Id. Then, after unnamed HDSP employees told an inmate that they were going "to 'make an example'" of plaintiff for being a "'legal begal [sic],'" Plaintiff was ...


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