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Osvaldo R. Gonzalez v. M. Libatique

September 9, 2011

OSVALDO R. GONZALEZ, PLAINTIFF,
v.
M. LIBATIQUE, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Suzanne H. Segal United States Magistrate Judge

MEMORANDUM AND ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND

I. INTRODUCTION

On July 6, 2011, plaintiff Osvaldo R. Gonzalez ("Plaintiff"), a California state prisoner proceeding pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983 (the "Complaint") against various defendants. For the reasons stated below, the Complaint is dismissed with leave to amend.*fn1

Congress mandates that district courts perform an initial screening of complaints in civil actions where a prisoner seeks redress from a governmental entity or employee. 28 U.S.C. § 1915A(a). This Court may dismiss such a complaint, or any portions thereof, before service of process if it concludes that the complaint (1) is frivolous or malicious, (2) fails to state a claim upon which relief can be granted, or (3) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1-2); see also Lopez v. Smith, 203 F.3d 1122, 1126-27 & n.7 (9th Cir. 2000) (en banc).

II. ALLEGATIONS OF THE COMPLAINT

Plaintiff alleges that the following six named defendants violated his civil rights: (1) Parole Agent Mark Libatique, badge no. 5749 ("Agent Libatique"); (2) California Department of Corrections and Rehabilitation Secretary, Matthew Cate ("Secretary Cate"); (3) Hearing Officer, R. Wagner("Officer Wagner"); (4) Los Angeles County Sheriff, Leroy Baca ("Sheriff Baca"); (5) Parole Agent T. White, badge no. 5749-DAPO ("Agent White"); and (6) Parole Agent Tranisha Tate, badge no. 4404 ("Agent Tate") (collectively, "Defendants"). (Complaint at 3-3a). Plaintiff is suing Defendants in their individual and official capacities. (Id.).

Although Plaintiff's allegations are unclear, the Complaint appears to allege five interrelated claims arising from Plaintiff's arrest stemming from a parole violation. (Complaint at 5). First, Plaintiff alleges that his "first amendment rights to petition the governmen [sic] for redress of habeas corpus and grievances, lawsuit" were violated. (Id.). Second, Plaintiff alleges that his "first amendment rights to access the courts, file lawsuit and habeas petition" have been violated. (Id.). Third, Plaintiff claims his "fourteenth amendment rights to equal protection under the law" have been violated. (Id.). Fourth, Plaintiff alleges that his "rights under the fourteenth amendment--retaliation threats if testify at parole hearing" have been violated. (Id.). Fifth, Plaintiff alleges his "first amendment rights--retaliation and threats of retaliation if he participate [sic] in parole hearing" have been violated. (Id.).

Plaintiff alleges that Defendants Agent Libatique, Agent Tate, Agent White, Secretary Cate, and Officer Wagner authorized Plaintiff's arrest and placed Plaintiff in county jail. (Id.). Plaintiff claims that at the time of his arrest he was in possession of several legal documents pertaining to a pending civil rights case Plaintiff had filed in the Fifth Circuit Court of Appeals. (Id.). Plaintiff alleges that among those papers was "a rough appellate brief that the [P]laintiff was working on, potential exhibits and other important documents" concerning Plaintiff's filed claim. (Id. at 5a). Plaintiff claims he notified Agent Tate that he "needed those papers." (Id.). Plaintiff alleges Agent Tate reached inside Plaintiff's duffel bag, grabbed a handful of papers, and subsequently left them on her own desk. (Id.). Defendants then transported Plaintiff to the Los Angeles County Jail, where Plaintiff alleges Defendants then deposited the rest of Plaintiff's papers, although it is unclear where the papers were left. (Id.). Plaintiff asserts he requested access to the above mentioned papers "several times," but was unsuccessful at obtaining his papers during the duration of his fifty-day stay at the Los Angeles County Jail before being transferred to state prison. (Id. at 5-5a). Plaintiff claims "[h]e has been unable to find out what happened to that case, and his papers." (Id. at 5a).

Plaintiff alleges Defendants Agent Libatique, Sheriff Baca, Agent Tate, Secretary Cate, Officer Wagner, and Agent White "housed Plaintiff, a State Prison Inmate, in the Los Angeles County Jail, knowing that doing so would deprive him of access to habeas corpus and civil rights forms. They also knew he would be deprived access to CDCR [California Department of Corrections and Rehabilitation] 602 and BPH [Board of Parole Hearings] grievances and complaint forms." (Id.). Further, "these [D]efendants also knew that Plaintiff would be deprived of access to the courts, and be subject to deprivation of law library, law books, case law and copying services." (Id.).

Plaintiff claims he was in the process of filing a habeas corpus petition in state court "challenging the special conditions of parole" which Plaintiff was accused of violating and which ultimately led to his incarceration. (Id.). Plaintiff alleges that, due to Defendants' actions, he could not find the particular forms to file the above mentioned habeas corpus petition. (Id.).

On June 3, 2011, Plaintiff claims he called Agent Libatique. (Id. at 5b). After Plaintiff identified himself to Agent Libatique, Plaintiff alleges Agent Libatique "went ballistic, issuing several threats and retaliatory actions." (Id.). Plaintiff alleges Agent Libatique stated, "[y]ou better sign the wavier and take whatever the BPH [] offers you. I'm like a robot. If you make me go to the hearing, I'm gonna [sic] make sure you get a year in prison." (Id.). Plaintiff claims Agent Libatique's actions violated Plaintiff's rights under the First Amendment, as well as 42 U.S.C. § 1983 and § 1985. (Id.).

Plaintiff alleges the Defendants, "through and by their actions, have violated Plaintiff's constitutional rights to access to the courts, to redress of grievances, retaliation and threats of retaliatory actions." (Id.). As a result of Defendants' conduct, Plaintiff also alleges Defendants "violated Plaintiff's federally protected rights to file habeas corpus, grievances, litigate pending case(s), and file this case." (Id.).

Plaintiff seeks compensatory damages in the amount of $10,000.00 against each Defendant as to Plaintiff's first three claims. (Id. at 6). Plaintiff also seeks punitive damages against each Defendant in the amount of $25,000.00 as to Plaintiff's first three claims. (Id.). Plaintiff further seeks compensatory damages against Defendant Agent Libatique, in the amount of $25,000.00 as to Plaintiff's fourth and fifth claims. (Id.) Finally, Plaintiff seeks punitive damages against Defendant Agent Libatique, in the ...


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