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Armando Herrera v. Gardner

July 26, 2011

ARMANDO HERRERA, PLAINTIFF,
v.
GARDNER, ET AL., DEFENDANTS.



ORDER AND FINDINGS AND RECOMMENDATIONS

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Plaintiff has filed motions for preliminary injunctive relief, a motion to stay, and a motion to amend his complaint. Defendants have filed a motion to dismiss, which plaintiff has not opposed.

I. Motions for Injunctive Relief

The court heard arguments on plaintiff's motions for preliminary injunctive relief on April 20, 2011.

As set out in the court's April 15 order:

Plaintiff claims that defendants knowingly classified him as an associate to the Mexican Mafia gang, even though in the past he was housed in protective custody because the Mexican Mafia gang is his enemy. He declares that if he is housed with gang members they will kill him.

Specifically, plaintiff has declared under penalty of perjury that in 1981 he was placed in protective custody because his brother had dropped out of the gang. Dckt. No. 8. Recently, an inmate allegedly told plaintiff that he was going to stab him because the inmate knew that plaintiff's brother had been a dropout. Plaintiff claims that correctional officers told plaintiff that they would not protect him because plaintiff had filed a lawsuit against CDCR board members. Plaintiff also alleges that, in the past, prison officials put him with his enemies in retaliation for 'giving officers names to the courts' and he was beaten by ten inmates and had to be hospitalized.

Plaintiff attaches a document, dated 7/16/82, that appears to be a prison record. The document states:

Subject was endorsed by the CSR for CTF SHU on 10/2/81 based on potential for future mainline housing which cannot be accomplished [illegible]. . . Folsom due to possible enemy factors. Committee notes CDC 812 which lists [illegible] at San Quentin and which lists Subject as an EME (Mexican Mafia associate). CDC 812 also refers to Brother, Ernest Herrera, B-51237 who is currently out on PC status at San Quentin due to EME dropout status . . . . In the CAC investigation, departmental records reflected Subject is an associate of the prison gang known as EME (Mexican Mafia). Subject denies ever having been a member of the gang and he contends that he can program in the CTF Central GP is he is released to mainline . . .

Dckt. No. 8 at 3. He also attaches another document dated 8/5/81, which is more difficult to read, but states in part:

S made personal appearance before this committee as a new arrival, who was placed in Ad. Seg. because of information in his file which indicates that his life might be in danger at this institution. Specifically, S's brother Earnest Herrera B-51237, is a PC case at SQ, due to dropping out of the EME. In interview S presented a facade claiming that . . . and said he knows that his brother is a PC from the EME, but he . . . . Realistically, we know that this is not true that if one brother's in disfavor with a gang, the other brother can be in extreme jeopardy. Based on this we're not willing to take a chance on his life and are retaining him Indeterminably. SHU staff can determine whether or not transfer to SQ might resolve the situation as the EME are locked down at that institution, S might be able to walk a mainline . . . . He seem to indicate that in fact he may realize that he might be in some danger and presenting a brave front.

Id. at 4.

Plaintiff submitted another pleading under penalty of perjury in which he declares that he has been put in administrative segregation because defendants classified him as an associate to the Mexican Mafia gang. See Dckt. No. 32. He declares that the reason that defendants are 'lying [and] . . . saying I'm an associate to the prison gang' is that they can house him with members of the Mexican Mafia, who will kill him. Id.

Dckt. No. 50.

The court ordered defendants to show cause why the court should not issue an order restraining defendants and CDCR from allowing plaintiff to come into contact with Mexican Mafia gang members, associates or sympathizers, and set the motion for hearing. Dckt. No. 50. At the hearing, plaintiff submitted further exhibits in support of his motion. See Dckt. No. 55 (letter from family member to defendant Lee and Warden Dickinson stating that plaintiff has been falsely accused of being a gang member, and that he had been in protective custody; other letters from family members; copies of internal appeals and prison records). The court ordered defendants to submit further briefing explaining the procedures CDCR is taking and will take in the future to ensure plaintiff's safety. Dckt. No. 56. Defendants ...


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