The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
COMPLAINT DISMISSED WITH LEAVE TO THIRD AMENDED COMPLAINT DUE WITHIN THIRTY DAYS (ECF No. 45) AMEND SCREENING ORDER
Plaintiff Julian Gago De Medeiros ("Plaintiff") is a former state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff's original complaint was filed on March 25, 2005. (ECF No. 1.) He filed a First Amended Complaint on March 30, 2005 (ECF No. 4); it was dismissed with leave to amend on April 11, 2008. (ECF No. 10.) Plaintiff filed a Second Amended Complaint on April 14, 2009. (ECF No. 35.) Then on July 17, 2009, he filed another amended complaint titled "Second Amended Complaint." (ECF No. 45.) It is this July 17, 2009 Second Amended Complaint that is now before the Court for screening.
For the reasons set forth below, the Court finds that Plaintiff has failed to state a claim upon which relief may be granted.
II. SCREENING REQUIREMENTS
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. Iqbal, 129 S.Ct. at 1949.
III. SUMMARY OF COMPLAINT
Plaintiff alleges his rights to Equal Protection and Due Process have been violated and that he is being retaliated against in violation of the First Amendment. He names the following individuals as Defendants: James A. Yates, Warden; Gail Lewis, former Warden;
M. Quincel, Holds and Warrants Desk; J. L. Clayons, CC-I Corrections Counselor; N. E. Villa, CC-II, Appeals Coordinator; G. Duran, CC-I, Corrections Counselor; H. Allison, CC-II, Corrections Counselor; J. L. Spells, CC-I, Corrections Counselor; K. M. Turner, CC-I, Corrections Counselor; H. Hatten, CC-I, Corrections Counselor; J. Hurl, R&R Corrections Sergeant; M. Gellerson, R&R Corrections Officer; and S. Ghidell, R&R Corrections Officer. All above Defendants were employed at Pleasant Valley State Prison ("PVSP") at the time of the complained of incidents.
Plaintiff also names the following individuals as Defendants: California Board of Prison Terms; Paul Mena, Parole Unit Supervisor, Board of Prison Terms; D. H. McBean, Deputy Commissioner, Board of Prison Terms; J. Quintilliani, Deputy Commissioner, Board of Prison Terms; R. V. Mejia, Deputy Commissioner, Board of Prison Terms; Timothy O'Hara, Deputy Commissioner, Board of Prison Terms; R. Vazquez, Deputy Commissioner, Board of Prison Terms; T. J. Mackenberg, Deputy Commissioner, Board of Prison Terms; Jeanne S. Woodford, Director, California Department of Corrections; Edward Alameida, Jr., former Director, California Department of Corrections; and Does I through XXX.
Plaintiff makes the following specific allegations: On August 20, 1998, while Plaintiff was being held at PVSP, he was interviewed by U.S. Immigration and Naturalization Service*fn1 ("INS") agents. Plaintiff's INS file stated that he was a lawful permanent resident ("LPR"). One of the INS agents informed Plaintiff that the only reason for placing a detainer in his prison file was the state conviction, which, if not overturned on appeal, could act as grounds for initiation of removal proceedings. At the time, Plaintiff was in the process of appealing his conviction.
On September 15, 1998, Plaintiff was summoned to the Correctional Counselor's Office and presented with a copy of the immigration detainer by Defendant Clayons. Plaintiff was directed to sign the detainer receipt (Form CDC-661) prepared by Defendant Quincel. The form was dated September 11, 1998 and falsely stated that Plaintiff was the subject of an INS warrant for illegal entry into the United States. Plaintiff denied that he had entered the United States illegally and refused to sign the form. Plaintiff was not aware at the time that the California Department of Corrections and Rehabilitation automatically charged all alien LPRs with illegal entry.
On October 20, 2001 and again on December 19, 2001, Plaintiff was directed by Defendants Duran and Allison to sign Form CDC-1515 titled "Notice and Conditions of Parole." This form included as a special condition of parole the prohibition of re-entry into this country by Plaintiff without permission. This special condition was approved on October 6, 2001 by Defendant Mena based on the false illegal entry charge. Plaintiff refused to sign this form, specifically objecting to the special condition on the basis that he had not illegally entered the country. ///
On February 1, 2002, a parole revocation hearing*fn2 was held before Defendant McBean. Plaintiff was charged with refusal to sign the Notice and Conditions of Parole form. During the hearing, Plaintiff repeatedly inquired about the legal basis and source of authority for the imposition of the prohibition against reentering the country. Plaintiff was informed that it resulted from the charge of illegal entry. Plaintiff objected and stated that the charge was false. He again refused to sign the form containing the special condition and was sentenced to six additional months of incarceration.
On April 23, 2002, Plaintiff was again directed by Defendants Duran and Allison to sign a new Notice and Conditions of Parole form with the exact same special condition. Plaintiff declined to sign and requested documentation supporting the illegal entry charge. Plaintiff was told to request the documentation from the prison records department. Plaintiff submitted a request for the documentation on May 1, 2002. A response was received on May 29, 2002 stating that all INS holds were issued for illegal entry and that Plaintiff should contact INS for further information. Plaintiff filed a grievance disputing the explanation. Defendant Villa refused to process the grievance claiming it was untimely. On July 9, 2002, Defendant Villa told Plaintiff not to resubmit the grievance "or else."
On June 17, 2002, another parole revocation hearing was held before Defendant Quintilliani for a new charge of refusing to sign the Notice and Conditions of Parole form. Plaintiff requested witnesses and documentation supporting the illegal entry charge. His requests were denied. He again refused to sign the form. Again, an additional six months was added to his term of imprisonment.
The same process was repeated five times with the same result. Specifically, on October 4, 2002, May 30, 2003, and November 26, 2003, Defendant Spells directed Plaintiff to sign the Notice and Conditions of Parole form with the special condition precluding re-entry; on May 18, 2003, Defendant Turner did the same; and on November 23, 2004, Defendant Hatten did so as well. On each and every occasion, Plaintiff refused to sign, and on each and every such occasion new parole violation charges were filed.
On February 10, 2003, Defendant Mejia conducted a parole revocation hearing. On July 25, 2003, January 12, 2004, and December 17, 2004, Defendant O'Hara conducted the revocation hearings. On July 12, 2004, Defendant Vazquez conducted the hearing. During each hearing, Plaintiff requested that he be allowed to present material witnesses (Defendants Quincel, Clayons, and Mena) who would have testified as to the source and validity of the illegal entry charge; each time Plaintiff's request was denied. Each hearing resulted in an additional six months of incarceration for Plaintiff's refusal to sign.
On March 11, 2005, Plaintiff received a letter from Defendant Hurl informing him of prison officials' intent to dispose of Plaintiff's boxes of legal materials related to his cases. Plaintiff filed a grievance in response to this letter.
Plaintiff seeks a temporary restraining order, preliminary injunction, other injunctive relief, declaratory relief, compensatory and punitive damages, costs, and attorney fees.
The Civil Rights Act under which this action was filed provides:
Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
42 U.S.C. § 1983. "Section 1983 . . . creates a cause of action for violations of the federal Constitution and laws." Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997) (internal quotations omitted).
A. Equal Protection Claim
Plaintiff alleges that his Equal Protection rights under the Fourteenth Amendment are being violated. Under the Equal Protection Clause, "all persons similarly circumstanced shall be treated alike" by governmental entities. F.S. Royster Guano Co.
v. Virginia, 253 U.S. 412, 415 (1920). However, "[t]he Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same." Tigner v. Texas, 310 U.S. 141, 147 (1940).
Equal protection claims alleging disparate treatment or classifications are subject to a heightened standard of scrutiny when they involve a "suspect" or "quasi-suspect" class, such as race or national origin, or when they involve a burden on the exercise of fundamental personal rights protected by the Constitution. See, e.g., City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 440 (1985). The heightened standard of strict scrutiny requires the State to show that the ...