Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Vincente Solomon v. J. Negrete

June 20, 2011

VINCENTE SOLOMON, PLAINTIFF,
v.
J. NEGRETE, ET AL., DEFENDANTS.



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

FINDINGS AND RECOMMENDATIONS

Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. By separate order, the court has found several of plaintiff's allegations in his first amended complaint, regarding retaliation for the filing of grievances and inadequate medical care against a number of defendants appropriate for service. However, plaintiff will not be permitted to proceed willy-nilly against a multitude of defendants on a number of unrelated claims.

As plaintiff has been 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, __ U.S. __, 129 S.Ct. 1937, 1949 (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).

Plaintiff's claims are solely for money damages. AC, p. 3. Plaintiff has set forth some sixteen claims in a 75-page complaint, consisting largely of exhibits, naming more than thirty defendants (although it is difficult to be precise as he lists a number of defendants under "defendants" and scatters both those names and others not so listed in the body of his allegations). While this is an improvement over his original one hundred plus defendants in a three-hundred-page original filing,*fn1 and the undersigned is allowing this action to proceed as to some of plaintiff's claims, the court will not permit plaintiff to proceed on a number of allegations that remain violative of Rule 8(a)(2) of the Federal Rules of Civil Procedure, which requires "a short and plain statement of the claim showing that the pleader is entitled to relief...." Even if the factual elements of the cause of action are present, but are scattered throughout the complaint and are not organized into a "short and plain statement of the claim," dismissal for failure to satisfy Rule 8(a)(2) is proper. McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1996) (stating that a complaint should set forth "who is being sued, for what relief, and on what theory, with enough detail to guide discovery" (emphasis added)). A complaint that fails to comply with rules 8(a) and 8(e) may be dismissed with prejudice pursuant to Fed. R. Civ. P. 41(b). Rule 8; Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981)). Further, "[t]he propriety of dismissal for failure to comply with Rule 8 does not depend on whether the complaint is wholly without merit," McHenry 84 F.3d at 1179.

Once again, moreover, in asserting multiple unrelated claims against different defendants, plaintiff presents the kind of "mishmash of a complaint" that has been roundly repudiated. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) ("[u]nrelated claims against different defendants belong in different suits"). Fed. R. Civ. P. 18(a) provides: "A party asserting a claim, counter-claim, cross-claim, or third-party claim may join, as independent or alternative claims, as many claims as it has against an opposing party." "Thus multiple claims against a single party are fine, but Claim A against Defendant 1 should not be joined with unrelated Claim B against Defendant 2." George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). "Unrelated claims against different defendants belong in different suits[.]" Id.

It is true that Fed. R. Civ. P. 20(a) provides that "[p]ersons ...may be joined in one action as defendants if: (A) any right is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or fact common to all defendants will arise in the action." However, "[a] buckshot complaint that would be rejected if filed by a free person -- say, a suit complaining that A defrauded the plaintiff, B defamed him, C punched him, D failed to pay a debt, and E infringed his copyright, all in different transactions -- should be rejected if filed by a prisoner." Id. at 607.

The court has found colorable plaintiff's allegation that he was placed in the SHU (security housing unit) from December 31, 2006 to July 28, 2007, in retaliation for having filed a grievance against defendant Torres after she allegedly threatened to have him beaten, raped and killed by other inmates and defendants Norgaard, and Wright allegedly covered up her conduct and kept him in SHU when he refused to withdraw his complaint. However, plaintiff goes on to allege, contradictorily, that when he continued to refuse to drop his complaint on defendant Torres (and others), he was forced out of the SHU and sent back to defendant Torres' building "to be assaulted and could've been killed." Amended Complaint (AC), p. 3. This portion of his claim is not colorable because he does not name who forced him to return to the building where Torres worked nor does he clarify whether he was ever actually assaulted in any way. This portion of his allegations should be dismissed.

Plaintiff's allegations against defendants Caresco, Bryant and Steadman will also be dismissed, wherein he claims that after his SHU term was up on March 12, 2008 (evidently a different one from the one referenced immediately above), he was written up for a "minor" 115 prison disciplinary offense for which he had already been punished. AC, p. 68.*fn2 Plaintiff believes that defendants rationale for retaining him in the SHU, that plaintiff had enemies on every yard, was pretextual. Plaintiff also claims that J. Negrete; Corr. Counselor II T. Miner wrongly retained him in the SHU even though a write-up was dismissed and ordered re-heard.

Id., at 72. Plaintiff simply provides an inadequate factual predicate for his claim and, in any case, simply being retained in the SHU or administrative segregation does not implicate plaintiff's constitutional rights. A prisoner has no protected liberty interest in not being confined in the security housing unit where placement and retention therein were "within the range of confinement to be normally expected" by prison inmates. Resnick v. Hayes, 213 F.3d 443, 448-49 (9th Cir.2000); May v. Baldwin, 109 F.3d 557, 565 (9th Cir.1997) (noting that "the Ninth Circuit explicitly has found that administrative segregation falls within the terms of confinement ordinarily contemplated by a sentence"). Plaintiff does not allege conditions of confinement in the SHU that implicate an atypical and significant hardship in relation to the ordinary incidents of prison life. Sandin v. Conner, 515 U.S. 472, 484, 115 S. Ct. 2293, 2300 (1995)

Plaintiff's wide-ranging claims regarding loss of personal property, including a stereo, jewelry, medical equipment (including a lack of reimbursement for eyeglasses), food, photos, books, legal work, a television against various defendants in different years apparently at different facilities are unrelated to the gravamen of the allegations on which he is being allowed to proceed and will be dismissed. In addition, the United States Supreme Court has held that "an unauthorized intentional deprivation of property by a state employee does not constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful post-deprivation remedy for the loss is available." Hudson v. Palmer, 468 U.S. 517, 533, 104 S. Ct. 3194 (1984); Taylor v. Knapp, 871 F.2d 803, 805 (9th Cir. 1989) ("[i]n Parratt v. Taylor, 451 U.S. 527, 101 S. Ct. 1908 (1981),*fn3 the Court held that where a deprivation of property resulted from the unpredictable negligent acts of state agents, the availability of an adequate state post-deprivation remedy satisfied the requirement of due process.") Thus, where the state provides a meaningful post-deprivation remedy, only authorized, intentional deprivations constitute actionable violations of the Due Process Clause. An authorized deprivation is one carried out pursuant to established state procedures, regulations, or statutes. Piatt v. McDougall, 773 F.2d 1032, 1036 (9th Cir. 1985); see also Knudson v. City of Ellensburg, 832 F.2d 1142, 1149 (9th Cir. 1987). The California Legislature has provided a remedy for tort claims against public officials in the California Government Code, §§ 900, et seq. Plaintiff has not alleged facts, to the extent that they can be discerned, which suggest that the deprivations by defendants Sheet, Cable, Mello, Heil, Grimm, Wallace, Cannon, Turner, Bonville, Davis, Foston, Hodges, Hollins, Blankenship, Gentry, R. Curliss, Lt. Schuyler were authorized. AC, pp. 69-70, 72-73. These claims and defendants should be dismissed.

The court has found plaintiff's claim that defendant Dr. Tate was deliberately indifferent to plaintiff's serious medical need when he allegedly abruptly discontinued plaintiff's chronic pain medication. AC, p. 70. Plaintiff also has allowed plaintiff to proceed on a claim of retaliation against defendant Dr. Stallcup for her alleged actions as a result of plaintiff's filing a grievance. Id., at 70-71. However, his bare and broad allegation that "Dr. Jaquin allows all of this," (id., at 70) seemingly penned in as an ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.