The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FOURTH SCREENING ORDER FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE PROCEED ON THE FOURTH AMENDED COMPLAINT ONLY AGAINST DEFENDANT D. D. ORTIZ FOR RETALIATION, AND THAT ALL OTHER CLAIMS AND DEFENDANTS BE DISMISSED WITHOUT LEAVE TO AMEND (Doc. 46.) OBJECTIONS, IF ANY, DUE IN 30 DAYS
Jeffrey K. Gomez ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed his original Complaint on March 29, 2004. (Doc. 1.) On March 9, 2005, the Court dismissed Plaintiff's Complaint for failure to state a claim, with leave to amend. (Doc. 6.) On May 10, 2005, Plaintiff filed the First Amended Complaint. (Doc. 9.) On October 2, 2006, the Court dismissed the First Amended Complaint for failure to state a claim, with leave to amend. (Doc. 10.) On January 30, 2007, Plaintiff filed the Second Amended Complaint. (Doc. 18.) On October 15, 2008, the Court issued findings and recommendations to dismiss the Second Amended Complaint for failure to state a claim. (Doc. 21.) On November 20, 2008, Plaintiff filed objections and lodged a proposed Third Amended Complaint. (Docs. 22, 23.) On January 27, 2009, the Court vacated the findings and recommendations and filed the Third Amended Complaint. (Docs. 25, 26.) On January 28, 2009, the Court issued an order directing Plaintiff to file a Fourth Amended Complaint curing deficiencies in the Third Amended Complaint. (Doc. 27.) On August 14, 2009, Plaintiff filed the Fourth Amended Complaint, which is now before the Court for screening. (Doc. 46.)
II. 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, 127 S.Ct. 1955, 1964-65 (2007)). "[P]laintiffs [now] face a higher burden of pleadings facts . . ," Al-Kidd v. Ashcroft, 580 F.3d 949, 977 (9th Cir. 2009), and while a plaintiff's allegations are taken as true, courts "are not required to indulge unwarranted inferences," Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).
III. SUMMARY OF FOURTH AMENDED COMPLAINT
Plaintiff's Fourth Amended Complaint names seventy-seven defendants and twenty Doe defendants, for violations of due process and equal protection, retaliation, failure to protect, improper processing of inmate appeals, and claims arising from the Americans with Disabilities Act ("ADA"). Plaintiff alleges as follows.
CSP-Sacramento, San Quentin State Prison, and Salinas Valley State Prison
Plaintiff alleges that from April 1993 until January 2003, while he was incarcerated at California State Prison-Sacramento, San Quentin State Prison, and Salinas Valley State Prison ("SVSP"), defendants violated his constitutional rights. Plaintiff claims he was erroneously validated as an active gang member in 1995 at San Quentin. Plaintiff filed a grievance but was paroled before he received a final decision; however, Plaintiff assumed the grievance was granted. In 2000, Plaintiff was re-incarcerated and transferred to SVSP. An investigation was conducted to determine Plaintiff's gang status, but Plaintiff did not receive results of the investigation before he was transferred to Corcoran State Prison ("CSP").
Corcoran State Prison - Retention in the SHU and Retaliation
On January 9, 2003, Plaintiff was transferred from SVSP to CSP and housed in facility/building 4B-4L which is designated for validated gang affiliates. On January 16, 2003, Plaintiff attended a classification hearing and a decision was made to retain him in the SHU because his file labeled him a member of the Aryan Brotherhood gang.
On February 18, 2003, after receiving information from the Gang Investigator at SVSP, CDCR Headquarters validated Plaintiff in writing as an "inactive" gang associate. Plaintiff maintains that the "inactive" status entitled him to be released from the SHU into the General Population.
On March 11, 2003, defendants Schrednitz and Villareal issued a lock-up order retaining Plaintiff in the SHU, although they knew his "inactive" status had been confirmed. On March 13, 2003, Plaintiff attended a classification hearing and vehemently objected to the lock-up order, referring to the February 18, 2003 validation. Defendants D.D. Ortiz, Galaviz, Rings and Schrednitz recommended Plaintiff's retention in the SHU. Defendant Galaviz said, "Welcome to Corcoran -- 602 that." Defendant Schrednitz told Plaintiff not to talk to "anyone" and "Don't go to Yard," if he ever wanted to be released to the General Population.
For months, Plaintiff gave notice to defendants of the February 18, 2003 validation of his "inactive" status, but they failed to release him from the SHU.
On May 13, 2003, three days before the expiration of his determinate SHU term for assault, Plaintiff was approved for retention in the Administrative Segregation Unit instead of the SHU. On May 22, 2003, defendants D.D. Ortiz, R. Hall, and Schrednitz agreed, out of retaliation, to retain Plaintiff in the SHU, falsely documenting he was a validated gang associate.
On September 12, 2003, Plaintiff appeared before the Department Review Board (DRB). Defendant Kalvelage decided to retain Plaintiff in the validated SHU while an investigation was conducted, ignoring Plaintiff's explanation that SVSP had already conducted a full investigation that could be verified by phone.
On September 24, 2003, defendants D.D. Ortiz, G. Rangel and Schrednitz agreed to retain Plaintiff in the SHU. When Plaintiff objected that his retention was a "set up," defendant D.D. Ortiz stated, "Teach you to stop filing, think about that for the next six-year review." Plaintiff understood the reference to "filing" to refer to the filing of inmate grievances. Plaintiff filed grievances complaining about his retention in the SHU, but Defendants refused to release him. Plaintiff requested but was not given copies of documents forming the basis of his retention in the validated SHU, to allow him to adequately defend against the retention.
Defendant Monroe denied Plaintiff's due process and liberty interest by failing to go to a higher authority with facts of his unlawful retention. Plaintiff claims those acts also denied him the protections afforded similarly situated inmates.
On March 10, 2004, after a full investigation, Plaintiff's "inactive" status was validated by CDCR Headquarters, re-confirming the February 18, 2003 determination.
On March 18, 2004, defendants ignored the evidence of Plaintiff's "inactive" status and again agreed to retain him in the validated SHU. Plaintiff objected and defendant D. Stockman said, "You're done, 602 it!" and told the escort staff to remove him. Plaintiff filed a grievance, and defendant Andrews responded to the grievance despite the fact that a response by Andrews violated the impartiality requirement.
On May 17, 2004, Plaintiff received another lock-up order affirming he was properly designated "inactive" but nonetheless should be retained in the validated SHU building. On May 20, 2004, defendants Yamamoto, P. Stockman, Galaviz, and Schrednitz agreed to retain Plaintiff in the validated SHU, even though they were aware of Plaintiff's documentation.
Plaintiff is an ADA inmate who requires a cane. On October 5, 2004, defendants Norton and Monroe came to Plaintiff's cell and accused Plaintiff of refusing to exit the cell to speak to them. Plaintiff explained they had been misinformed and the issue was that he had been denied his needed cane. Defendant Norton responded by attempting to make it appear to the other inmates in the unit that Plaintiff was an informant, potentially jeopardizing Plaintiff's safety, by sliding documents -- pre-2002 CDC 1030's -- under his door while loudly saying, "You may now have something to hide now." Norton's comment was retaliatory because he wanted Plaintiff to come out and interview, but Plaintiff could not because he had no cane. Plaintiff contends that Norton and Monroe's actions of serving him old CDC 1030 forms were intended to obstruct his release from the SHU, and caused his DRB appearance to be cancelled. Norton acted in retaliation for Plaintiff filing a complaint against him.
On December 9, 2004, defendants held Plaintiff's classification hearing without his presence, denying him an opportunity to present his views, and improperly decided to retain him in the SHU.
On December 21, 2004, defendant Monroe conducted an interview as part of the prison's first-level response to Plaintiff's prison complaint challenging the pre-2002 CDC 1030's. Plaintiff objected that the interview was inappropriate because Monroe was involved and because he was a lower rank than Norton. The biased interview was relied upon to deny Plaintiff relief.
Plaintiff alleges that on numerous occasions between March 17, 2004 and April 5, 2005, he was retaliated against for filing grievances, for making verbal complaints during ICC hearings, and for complaining to the SHU building staff. Defendants made false reports against him, denied him access to the law library, denied him escort to medical exams, denied him interviews regarding staff complaints, denied him the opportunity to appear at rules violation hearings denied him showers except when handcuffed behind his back, denied him requests to see the nurse or doctor, and denied him x-rays.
On April 12, 2005, defendant Norton further retaliated against Plaintiff by having defendant Garcia serve Plaintiff with two CDC 1030 forms containing false information. Defendants did not comply with 15 CCR § 3378(c)(6) et seq. which requires at least 24 hours to review the documents and prepare a defense, allows Plaintiff to give a rebuttal documented by prison staff, and requires Plaintiff to be provided with copies prior to submission of the documents for consideration of his inactive status. On July 29, 2005, a validation package was submitted by defendant Norton, causing Plaintiff to be retained in the SHU. On August 1, 2005, another lock-up order was issued. On August 4, 2005, a classification hearing was held and defendants Ortiz, Stockman, and Schrednitz ignored Plaintiff's objections and agreed among themselves to retain him in the SHU.
On October 12, 2005, defendants Norton and Dotson came to Plaintiff's cell to interview him concerning a complaint Plaintiff filed against Norton. Plaintiff refused, explaining that Norton was prohibited from conducting a formal level interview concerning complaints against him. A heated discussion ensued, and Norton exclaimed, "It don't really matter because your (sic) a done deal anyway!" and walked off. That evening, Plaintiff received documentation dated August 15, 2005 that he had been validated as an "active" member of the Aryan Brotherhood. Plaintiff claims the decision to re-validate him was based on false allegations and Plaintiff was not given the opportunity to present evidence on his behalf.
On November 1, 2005, defendants Schrednitz and Keener issued another lock-up order causing Plaintiff to be retained in the SHU, despite his "inactive" status from February 18, 2003. Schrednitz' and Keener's actions were taken out of retaliation for Plaintiff filing grievances while at CSP and for writing to Warden Scribner about prison staff misconduct. On November 3, 2005, Schrednitz delivered five CDC 1030's to Plaintiff, based upon confidential memoranda that were used to validate him in 1995. The 1995 decision was based upon erroneous confidential information as follows:
1) that Plaintiff ordered a stabbing that an inmate refused to commit;
2) that Plaintiff had a piece of sprinkler while in ...