The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
ORDER and FINDINGS AND RECOMMENDATIONS
Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. Pending before the court are: 1) a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), filed by defendants Cate, Garcia, Berna, Cronjagar,*fn1 Gomez and Florez, on February 22, 2011, to which plaintiff filed his opposition on March 3, 2011, to which these defendants filed a reply on March 8, 2011; 2) plaintiff's "motion for default judgment," filed on February 25, 2011, to which defendants filed an opposition on March 15, 2011, after which plaintiff filed his reply on March 24, 2011; 3) a motion to dismiss pursuant to Fed. R. Civ. 12(b)(6), filed on February 28, 2011, by defendant Park, to which plaintiff filed his opposition on March 11, 2011, after which defendant Park filed a reply on March 18, 2011; 4) a motion to dismiss, pursuant to Rule 12(b)(6), brought by defendants McClure, Ruff, Williams, Burt, Fischer and Buechner, filed on March 28, 2011, to which plaintiff filed his opposition on April 13, 2011, after which these defendants filed their reply on April 15, 2011; and 5) plaintiff's motion for extension of time to provide contact information on unserved defendants, Kissel and Roman, filed on May 11, 2011, which is denied as moot at this time, these defendants having been subsequently re-served.
Motion for Default Judgment
Plaintiff moves the court to enter a judgment of default by the defendants for their failure to serve an answer or take timely action. Motion for Default, pp. 1-4. The court takes judicial notice of the case docket.*fn2 Prior to the filing of plaintiff's motion, executed waivers of service had been timely filed by defendants Garcia, Berna, Florez and Cate. See docket # 36. Executed waivers of service were timely filed by defendants Gomez and Cronjagar at docket # 39. These defendants, Cate, Garcia, Berna, Cronjagar, Gomez and Florez filed their motion to dismiss timely, on February 22, 2011, in accordance with the signed waivers. An executed waiver of service was returned signed at docket # 44 on behalf of defendant Park, whose motion to dismiss was filed simultaneously, on February 28, 2011. Executed waivers of service appear to have been timely filed for defendants Williams, Burt, McClure, Buechner, Ruff, Fischer. Docket # 57 & # 58. These defendants, McClure, Ruff, Williams, Burt, Fischer and Buechner, filed their motion to dismiss timely from the time at which they were served in accordance with the waivers. Prior to the filing of plaintiff's default motion, waivers for defendants Kissel and Roman had been returned unexecuted (docket # 37). Following an order for plaintiff to provide additional information, plaintiff's subsequent request for judicial intervention to obtain more information as to these defendants was granted; service upon these defendants has been reordered as of May 20, 2011. Docket # 72. In addition to alleging that defendants were in default,
plaintiff also takes issue with the fact, in his reply, that the motions to dismiss only challenge some of his claims and seeks an entry of default as to the unchallenged or unanswered claims. Reply, pp. 4-5. Defendants have brought their motions pursuant to Fed. R. Civ. P. 12(b)(6), failure to state a claim upon which relief can be granted. Such a motion must be brought prior to filing a responsive pleading, i.e., answer. See Fed. R. Civ. P. 12(b). By not challenging every claim within the amended complaint, defendants are not thereby in default. Plaintiff's motion will be denied.
This case proceeds on a first amended complaint against some fifteen defendants (two of whom are as yet unserved*fn3 ), as modified by the Order, filed on October 28, 2010, dismissing nine defendants and, in addition, dismissing defendant Matthew Cate in an individual capacity.*fn4 The gravamen of this action is plaintiff's allegation regarding extended housing in the SHU (special/security housing unit) or Ad Seg (administrative segregation) arising from his continued validation as a prison gang member from 2003 on, predicated on allegedly inadequate and/or fraudulent supporting evidence. First Amended Complaint (FAC), pp. 15-25. Plaintiff claims the gang validation SHU placement despite the lack of documentation of gang activity in his files will continue to impact him negatively with regard to parole consideration and classification score and levels as long as the placement is retained in his files. Id., at 25.
Plaintiff alleges that his gang validation in November 2000, relied on six items: four alleged informant statements and two CDC 128 B forms based on alleged staff documentation. FAC, p. 15. The Nov. 15, 2000 128 B-2 form/report rejected four additional CDC-128 B forms as not meeting the gang validation criteria. Id. Thereafter, one of the two CDC 128 B reports found reliable in November of 2000, was stamped as also failing to meet the requisite criteria. Id. In 2003 and 2004, without notice to plaintiff, the same ten items originally submitted in 2000 were re-evaluated and plaintiff was validated as a prison gang member. Id. Defendant Roman was involved in the 2003 gang validation, Id. Plaintiff was unaware of the reevaluations until late 2004, when non-party R. Comfort issued a CDC 128 G form refusing to approve plaintiff's SHU term based on unreliable validation documentation; he deferred the validation but approved a 60-day Ad Seg placement extension for case follow-up. Id.
Plaintiff alleges that he told defendant Park that the confidential memoranda used to validate him as a gangmember were unreliable and the CDC 1030 forms regarding the confidential information provided plaintiff did not allow him proper notice, depriving him of a "fair opportunity to be heard." FAC, p. 15. Plaintiff also provided defendant Park with copies of the CDC 128 B form copies which had been stamped clearly with "'does not meet criteria,' and explained that the re-evaluators had unlawfully located and utilized 'clean' copies," i.e., copies that had not been stamped. Id., at 16. Although in a April 20, 2005, phone conversation defendant Park acknowledged plaintiff's position and had received the forms stamped as not meeting the gang validation criteria, plaintiff alleges defendant Park violated his due process rights and his liberty interest in release from the SHU and to parole because the gang and SHU status was relied on to find him unsuitable for parole in BPH hearings on August 1, 2007, and on December 7, 2009, and will continue to do so until expunged. Id. In addition, he claims Corcoran State Prison's SHU constitutes "atypical and significant confines," by which plaintiff no doubt intends to invoke Sandin v. Conner, 515 U.S. 472, 484, 115 S. Ct. 2293, 2300 (1995) (state regulations give rise to a liberty interest protected by the Due Process Clause of the federal constitution only if those regulations pertain to "freedom from restraint" that "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.")*fn5
The 60-day ad seg extension expired on February 7, 2005, with no action taken; on April 25, 2005, non-party Powell issued a 90-day extension "'to complete the casework.'" FAC, p. 16. In or around September of 2005, plaintiff was validated as a gangmember based on nine of the ten items which had been submitted in November of 2000 in a CDC 128 B-2 form, "fraudulently" back-dated to April 13, 2005 (evident by reference to the April 25, 2005, CDC 128G form), signed by defendants Ruff, Fischer and Williams. Id., at 16. The items used included those previously documented as not meeting the required criteria for gang validation.
Id. Plaintiff reiterates the deprivations from which he suffers as a result of the allegedly wrongful gang validation and SHU placement as set forth with regard to defendant Park. Id., at 17. In addition, he claims that there is an established state law "'inactive' review procedure" for release of those who have been properly validated from the validated gang SHU to general population once six years have lapsed since the latest item used to determine SHU placement, which should have led to his release from the SHU on June 8, 2006, separate and apart from the allegedly unconstitutional gang validations of 2000, 2003, 2004 and 2005, Id., at 17-18.
Defendants Berna and Garcia conducted a search of plaintiff's cell on October 3, 2006; on November 14, 2006, defendant Berna gave plaintiff a CDC 128 B dated Nov. 13, 2006, stating that the search had turned up a list of CDC numbers and names of three inmates. FAC, p. 18. Defendant Berna also gave plaintiff a CDC 1030 form which stated that a confidential informant had identified plaintiff "as functioning under the NF/NS format and/or guidelines." Id. The basis for the CDC 1030 form to be a confidential memorandum is claimed to be a June 8, 2006, confidential memorandum by defendant Garcia. Id. Although the Nov. 13, 2006, CDC 128 B was not submitted for use against plaintiff, defendant Berna within it claims plaintiff's continued association with prison gang members/associates and it remains in plaintiff's prison file and has an adverse effect. Id.
On November 15, 2006, although plaintiff established that the documentation being used to validate his gang affiliation was uncorroborated or otherwise lacked credibility, defendants Cronjagar, Gomez and Berna, who formed the Institution Gang Investigators (IGI), violated plaintiff's due process rights by forwarding confidential memoranda to the Office of Correctional Safety (OCS) without including plaintiff's arguments. FAC, pp. 6, 19-21. Plaintiff contends defendants Cronjagar, Gomez and Berna also caused him to be found unsuitable for parole in Aug. 2007 and Dec. 2009, caused his extended parole reconsideration dates and his unlawful confinement in CSP-Corcoran SHU, and will continue to have a negative impact on plaintiff absent expungement of the allegedly unsubstantiated documentation. Id., at 21.
On April 25, 2007, defendant Ruff validated plaintiff as a prison gang member and denied him inactive status based on the confidential memorandum defendant Garcia had written, dated June 8, 2006. FAC, p. 21. Plaintiff accuses defendant Ruff of having committed a felony, pursuant to Cal. Penal Code § 134, by having allegedly fraudulently claims that on October 23, 2000, a CDC 128 B-2 has issued identifying plaintiff as an active gangmember when no such documentation has ever existed. Id. Plaintiff realleges all of his claims of due process right violations and his claims regarding being confined to the SHU at CSP-Corcoran against this defendant in the processing of validation package without plaintiff's rebuttal with regard to the confidential memorandum. Id.
Plaintiff's efforts to bring his argument against the credibility of the June 8, 2006, memo were frustrated when defendant Berna, who admitted that he could not locate the rebuttal to be sent to OCS and defendants Gomez and Florez, in June 2007, failed to take any corrective action. FAC, p. 22. Plaintiff asserts that their conduct caused plaintiff to be retained in the SHU and "a lifer inmate has never been paroled from the gang SHU." Id.
Defendant Berna submitted two CDC 128 B's dated in December15 and 19 in 2008, as additional documents in support of the confidential memorandum because plaintiff was arguing that the memo alone was insufficient. FAC, p. 22. Defendants Fischer, McClure, Buechner on December 24, 2008, and defendants Williams, Burt and Kissel on June 15, 2009, issued CDC 128 B-2 forms validating plaintiff as a gang member. Id., at 22-23. These actions fraudulently documented the December 2008 CDC-128 B forms as supporting the unreliable confidential memorandum in violation of plaintiff's constitutional rights. Id., at 23.
Plaintiff contends that to avoid further false claims of gang affiliation, plaintiff, in 2007, took the "drastic steps" of not taking a cellmate and not speaking with those alleged to be functioning as gang affiliates. FAC, p. 23. Prison staff has informed plaintiff that he is now on a real prison gang hit list and his life endangered, the responsibility for which plaintiff imputes to the allegedly unreliable June 6, 2008, confidential memo written by defendant Garcia and "fraudulent' supporting documents," inasmuch as he contends that he would have otherwise been released from the gang SHU in 2006 and been paroled in 2007 or 2009. Id., at 24.
Plaintiff identifies as his first claim for relief, a violation of his Fourteenth Amendment due process rights in, inter alia, the "fabricating" of documents placed in his files adversely impacting him and refusing to remove those documents from his files. FAC, p. 31. His second claim for relief is that his right to due process under the California constitution have been violated by defendants as well as specific state penal code sections. Id., at 32. His third claim for relief is that the CDCR, in willfully failing to maintain accurate records leading to adverse determinations against him by CDCR and BPH violates a federal statute, 5 U.S.C. § 552a. Id. Plaintiff's fourth claim for relief is that his First Amendment right to free speech and to access the courts have been violated by retaliation by defendants for filing grievances and court actions in the form of, inter alia, the re-validation of plaintiff as a prison gang member based on unreliable evidence. Id., at 32-33. Plaintiff's fifth claim is that he has been subjected to cruel and unusual punishment by the conduct of defendants. Id., at 33. His sixth claim for relief, like his second, is a claim predicated on state law; in this claim, he alleges that he has been subjected to cruel or unusual conditions in violation of Art. I, Section 17 of the California constitution. Id., at 34. Plaintiff's seventh and final claim appears to be ...