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Gregory A. Franklin v. L.E. Scribner

April 4, 2011


The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge


CDCR #E-66269,

On May 17, 2010, Plaintiff Gregory Franklin, a state prisoner proceeding pro se, filed a Third Amended Complaint [Doc. No. 23] pursuant to 42 U.S.C. § 1983, alleging violations of his First, Fourteenth, and Eighth Amendment rights. Defendants move to dismiss all claims in the Third Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).*fn1 Defendants also move to dismiss several claims for failure to exhaust administrative remedies. Plaintiff filed an opposition [Doc. No. 66], Defendants filed a reply [Doc. No. 63], and Plaintiff filed a sur-reply [Doc. No. 72]. For the following reasons, the Court GRANTS IN PART and DENIES IN PART Defendants' motion.


Plaintiff is a prisoner currently incarcerated at Calipatria State Prison, proceeding pro se and in forma pauperis on his Third Amended Complaint ("TAC") filed pursuant to 42 U.S.C. § 1983. The following description of events is taken from the TAC and is not to be construed as findings of fact by the Court.*fn2

On March 8, 2007, Plaintiff filed a civil rights complaint against thirteen defendants, all of whom were employed at the time by the California Department of Corrections at Calipatria State Prison in Calipatria, California. See Franklin v. Scribner, et al., Civil Case No. 3:07-cv-438-WVG (RBB) ("the 2007 action"). The 2007 action was not resolved until September 29, 2010, when the district court entered summary judgment in favor of defendants as to Plaintiff's two remaining Eighth Amendment claims. Plaintiff alleges that Defendants in this action have committed various acts of retaliation against him in violation of the First Amendment as a result of him filing and pursuing the 2007 action.

Specifically, Plaintiff alleges that immediately after the United States Marshal served his complaint on the thirteen defendants in the 2007 action, between July 14, 2007 and July 19, 2007, Defendants in this case began retaliating in various ways, including taking Plaintiff's property, fabricating rules violations, and confining Plaintiff to his cell 24 hours per day for numerous days at a time. As a result, Plaintiff claims he suffered weight loss, cut gums, chest pains, headaches, sleep deprivation, and mental anguish which required medication.

Plaintiff alleges seven particular instances of retaliation, beginning with the events of July 16, 2007, when at approximately 11:00 p.m., Defendant Arias wrote him up for a serious rules violation because he covered up his cell light with a shirt. Defendant Madden acted as the reviewing officer and Defendant Davis was the hearing officer. Plaintiff was found guilty of a serious rules violation for misuse of state property (the shirt). As a result, Plaintiff was confined to his cell for 10 days, he lost his phone privileges for 30 days, and he suffered headaches, undue stress, mental anguish, and insomnia.

Plaintiff alleges that on July 18 and 25, 2007, several days after being served with the 2007 complaint, Defendant Vargas withheld five first class domestic envelopes to which Plaintiff was entitled as an indigent inmate. At the time, the prison was on lock down status and Plaintiff could only communicate through the mail. As a result of Defendant Vargas' actions, Plaintiff experienced headaches, undue stress, and mental anguish.

Plaintiff further alleges that on July 20, 2007, Defendant Arias issued a serious rules violation against Plaintiff for calling him a bad name. Defendant Madden acted as the reviewing officer and Defendant Davis was the hearing officer. Plaintiff was found guilty of a serious rules violation and lost 30 days of good time credits, 30 days of phone privileges, and 10 days of yard time. Plaintiff alleges that the serious rules violation was unwarranted and pursued by Defendants after being served with the 2007 complaint. As a result, Plaintiff had to endure 24 hours per day cell illumination which caused him to suffer headaches, insomnia, irritation, and mental anguish.

On August 11, 2007, Plaintiff was one amongst a group of inmates who returned to their cells in an untimely manner after being locked out of the building by Correctional Officer Reyes. Plaintiff received a serious rules violation, although the other inmates did not. Defendant Madden was the reviewing officer, and Lieutenant Duran was the hearing officer. At the hearing, Plaintiff called several witnesses who stated that they were also locked out but did not receive rules violations. The serious rules violation was dismissed.

Plaintiff alleges that on August 12, 2007, Defendant Hopper instructed Defendant Trujillo not to allow Plaintiff in the recreation yard and to keep him confined in his cell. Plaintiff requested permission to speak with Defendant Hopper, but Hopper refused.

On September 16, 2007, Defendant Maciel allegedly withheld a personal package sent to Plaintiff in retaliation for being sued. The package included, inter alia, denture adhesives. On October 10, 2007, Plaintiff filed an inmate grievance form regarding the package. The grievance was granted, with a response that "the package was brought from receiving and release and brought to A Facility, can't explain what happen [sic] to the package afterward, will replace within a week." Plaintiff did not receive his package within a week, and inquired about the package with a correctional officer who in turn inquired with Defendant Maciel, who claimed that the package was not there. After Plaintiff produced his inmate grievance, Defendant Maciel stated that he had taken Plaintiff's package and sent it back. Plaintiff inquired with the company who sent the package. The company provided documentation indicating that the package had been returned and a replacement package had been sent at the request of officials at Calipatria. The replacement package was also returned to the company, and a second replacement package was sent. Plaintiff finally received the second replacement package several days after it was mailed.

Plaintiff alleges that he was placed on "C status" on September 18, 2007, for receiving two serious rules violations. Defendant Madden chaired the hearing. As a result, Plaintiff suffered various injuries arising out of his more restrictive custody. Plaintiff claims that one of the serious rules violations was fabricated and the other should not have been considered serious. Plaintiff claims that this action was taken in retaliation for his 2007 lawsuit.

Plaintiff also alleges that Defendant Small, in his capacity as Warden of Calipatria, violated his Eighth Amendment right to be free from cruel and unusual punishment by subjecting him to constant illumination in his cell. His cell has a large light right above his bunk, that is never turned off. In May 2008, Defendant Small issued a memorandum stating that inmates may not cover the light, and doing so would result in a serious rules violation and the revocation of privileges. Plaintiff states that he has suffered unrest, irregular sleeping habits, and extreme stress, due to the constant illumination in his cell.

Defendants move to dismiss Plaintiff's claims, arguing that his allegations are insufficient to state any plausible claim for relief. Defendants assert that Plaintiff did not exhaust his administrative remedies with respect to certain claims. Defendants further argue that they are immune from suit in their official capacities and there is no basis for Plaintiff's request for injunctive relief. Plaintiff opposes the motion. Defendants filed a reply in support of their motion, and Plaintiff filed a sur-reply in support of his opposition.


1. Legal Standard

A motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the claims in the complaint. See Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 633 (1999). "The old formula -- that the complaint must not be dismissed unless it is beyond doubt without merit -- was discarded by the Bell Atlantic decision [Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 n.8 (2007)]." Limestone Dev. Corp. v. Vill. of Lemont, 520 F.3d 797, 803 (7th Cir. 2008).

A complaint must be dismissed if it does not contain "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp., 550 U.S. at 570. "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." Ashcroft v. Iqbal, __ U.S.__ , 129 S.Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009). The court must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them, and must construe the complaint in the light most favorable to the plaintiff. Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 973 (9th Cir. 2004) (citing Karam v. City of Burbank, 352 F.3d 1188, 1192 (9th Cir. 2003)); Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995); N.L. Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986).

2. Standards Applicable to Pro Se Litigants

Where a plaintiff appears in propria persona in a civil rights case, the court must construe the pleadings liberally and afford the plaintiff any benefit of the doubt. Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). The rule of liberal construction is "particularly important in civil rights cases." Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). In giving liberal interpretation to a pro se civil rights complaint, courts may not "supply essential elements of claims that were not initially pled." Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). "Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss." Id.; see also Jones v. Cmty. Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984) (finding conclusory allegations unsupported by facts insufficient to state a claim under § 1983). "The plaintiff must allege with at least some degree of particularity overt acts which defendants engaged in that support the plaintiff's claim." Jones, 733 F.2d at 649 (internal quotation omitted).

The court must give a pro se litigant leave to amend his complaint "unless it determines that the pleading could not possibly be cured by the allegation of other facts." Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (quotation omitted) (citing Noll v. Carlson, 809 F.2d 1446, 1447 (9th Cir. 1987)). Thus, before a pro se civil rights complaint may be dismissed, the court must provide the plaintiff with a statement of the complaint's deficiencies. Karim-Panahi, 839 F.2d at 623-24. But where amendment of a pro se ...

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