The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
MOTION TO DISMISS BE GRANTED IN PART AND DENIED IN PART
AND CERTAIN CLAIMS AND DEFENDANTS BE DISMISSED
OBJECTIONS, IF ANY, DUE WITHIN
Findings And Recommendations
Plaintiff Kavin M. Rhodes ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On March 20, 2006, Plaintiff filed a second amended complaint. Doc. 89. On February 12, 2007, the undersigned recommended that Plaintiff's claims thirteen through thirty-three, which occurred between January 2, 2002 through November 15, 2003, should be dismissed without prejudice for failure to exhaust administrative remedies. Doc. 94. On March 9, 2007, the District Judge adopted the Findings and Recommendations and dismissed claims thirteen through thirty-three of Plaintiff's second amended complaint without prejudice for failure to exhaust administrative remedies. Doc. 97. Plaintiff appealed the Court's order on April 4, 2007. Doc. 103. On September 8, 2010, the United States Court of Appeals for the Ninth Circuit issued a published decision, reversing the Court's order and remanding for further proceedings. Doc. 212.
On March 10, 2011, the Court granted Plaintiff leave to file a third amended complaint, in effect a supplemental complaint. Doc. 224. On June 9, 2011, Plaintiff filed his third amended complaint. Doc. 239.
Prior to the Court screening Plaintiff's third amended complaint pursuant to 28 U.S.C. § 1915A, on June 24, 2011, Defendants Blevins, Huebner, A. Lopez, Sara Malone, C. Nelson, V. Pazo, Robertson, M. Robinson, and J. Tidwell filed a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Doc. 240. On August 23, 2011, Plaintiff filed his opposition. Doc. 245. No reply was filed. The matter is submitted pursuant to Local Rule 230(l). The Court will now screen Plaintiff's third amended complaint and consider Defendants' arguments raised in their motion to dismiss.
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). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).
A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id.
B. Summary Of Third Amended Complaint ("TAC")
Plaintiff makes the following allegations in his third amended complaint. Counts One through Thirteen concern events that occurred at California Correctional Institution ("CCI"), in Tehachapi, California.
On December 26, 2001, Plaintiff placed in the mail a civil rights complaint concerning this action. TAC 2. Plaintiff named as Defendants M. Robinson, R. Blevins, V. Pazo, J. Tidwell, and A. Lopez, among others. Id. On January 2, 2002, Defendants Pazo, R. Wenneker, and Tidwell approached Plaintiff. Id. Defendant Tidwell stated that he knew Plaintiff had filed a lawsuit. Id. Plaintiff feared for his safety and denied filing one. Id. Defendant Tidwell attempted to intimidate Plaintiff into turning over a copy of his complaint, which Plaintiff continued to deny being filed. Id. Because Plaintiff refused to turn over the complaint, Defendants Pazo, Tidwell, and Wenneker went into Plaintiff's cell to search for it. Id. They could not find it, and then confiscated Plaintiff's carrying case for his CD player, sunglasses, A/C adapter, pens, pencils, and writing tablets. Id. Plaintiff contends a violation of the First Amendment.
On January 3, 2002, at 7:30 a.m., Defendants Tidwell and Wenneker appeared at Plaintiff's cell door, where Defendant Tidwell told Plaintiff that he needed to escort him to the unit office. Id. at 3. During the escort, Plaintiff observed Defendant Pazo going towards Plaintiff's cell with a large laundry cart. Id. Plaintiff was locked in the clinic holding for several hours. Id. Upon being allowed to return to his cell, Plaintiff discovered that three large boxes, containing Plaintiff's legal property, had been confiscated by Defendants Tidwell, Wenneker, and Pazo. Id. The property was delivered to R&R to Defendants Robinson and Blevins. Id. Plaintiff's property was never returned. Id. Defendant Lopez, an original Defendant in this action, adjudicated Plaintiff's subsequent inmate grievance. Id. Plaintiff contends a violation of the First Amendment.
On January 13, 2002, Plaintiff appeared before the classification committee. Id. at 4. Defendant Lopez, the chair of the committee, retaliated against Plaintiff for filing this action by firing Plaintiff from his inmate job assignment as a SHU (security housing unit) legal clerk, without explanation. Id. Plaintiff contends a violation of the First Amendment.
Legal documents from January 4, 2002 to January 30, 2002, sent by the Court, were read, copied, and held by Defendants Robinson and Blevins. Id. at 5. Defendants used this knowledge of Plaintiff's complaint to engage in retaliation. Id. The undersigned conspired with Defendants by sending mail from the Court to Defendants rather than Plaintiff. Id. Plaintiff received his mail obviously opened and re-sealed with tape, with the notation "Legal Mail per R&R" written on it. Id. Plaintiff contends a violation of the First Amendment.*fn1
Defendants D. Chapman, E. Hanson, S. Buentempo, Dr. S. Skeen, Dr. McDill, A. Lopez, C. Nelson, and K. Todd fabricated Rules Violation Reports as retaliation. Id. at 6. On January 8, 2002, Defendant Buentempo appeared at Plaintiff's cell door and told him that Defendant Chapman had asked Defendant Buentempo to take Plaintiff to a classification hearing for a job change. Id. Plaintiff was then formally removed from his legal clerk position. Id. Plaintiff contends a violation of the First Amendment.
After Plaintiff had been fired by Defendant Lopez, Plaintiff appealed the decision. Id. at 7. Defendant Chapman responded to the appeal by taking Plaintiff back to classification less than thirty days after his January 13, 2002 classification hearing, and Plaintiff was put up for transfer. Id. Defendant Chapman stated that Plaintiff could work in the main library. Id. While working in the main library, Plaintiff was harassed by Defendants Tidwell and Pazo and restricted from doing any legal work. Id. The transfer was cancelled. Id. On January 8, 2003, Defendant Chapman had Plaintiff brought back to classification hearing to remove Plaintiff from the main library. Id. As Plaintiff was leaving, Plaintiff overheard Defendant C. Nelson whispering to Defendant Chapman regarding Plaintiff's single cell status. Id. Plaintiff was later seen by Defendant Skeen, who stated that she would write a chrono to retain Plaintiff on single status, but that Plaintiff would probably be transferred. Id. Plaintiff contends a violation of the First Amendment.
On January 5, 2003, Plaintiff was taken back to classification and referred to IDDTT. Id. at 8. Defendant Skeen informed Plaintiff that he would be retained on single cell status. Id. Shortly after, Defendant C. Nelson, with Defendant Hansen present, asked Plaintiff why he did not want to be double-celled. Id. After Plaintiff told them, both Defendants laughed. Id. On February 25, 2003, Defendant Hansen, with Defendant Nelson present, called Plaintiff into the office and stated that he had spoken with Defendant McDill, who had cleared Plaintiff for double celling. Id. Plaintiff had never been evaluated by Defendant McDill. Id. On February 26, 2003, Defendant Hansen brought Plaintiff back to classification committee, chaired by Defendant Chapman. Id. Defendant Chapman asked why Plaintiff did not want to be double celled. After Plaintiff told the truth, Defendant Chapman stated, "Lock him up!" Plaintiff was placed in a holding cell to go to the "hole" (administrative segregation). Id. Plaintiff witnessed Defendant Chapman say to Defendant Hansen, "what do you really want to do with [Plaintiff]?" Id. Defendant Hansen replied that Plaintiff should be locked up. Defendant Skeen produced a 114-D lock up order, finding that there were no psychological issues to preclude double-celling." Id. This contradicted Plaintiff's previous chronos from January 16, 2003 and February 5, 2003. Id. Plaintiff contends a violation of the First and Eighth Amendment.
On February 27, 2003, Plaintiff was issued a CDC 115 authored by Defendant J. Ramos, which stated that Plaintiff attempted to cause conditions likely to threaten institutional security. Id. at 9. Defendant A. Lopez saw Plaintiff on February 28, 2003. Id. He told Plaintiff that the 115 was flimsy, and Plaintiff would go to classification committee on March 6, 2003. Id. On March 4, Plaintiff received a revised 115, which changed the charge to "threatening to kill a cell mate", which would result in a lengthy SHU term. Id. At the committee hearing on March 6, Defendant A. Lopez admitted that he had re-classified the 115, which was based on fabricated charges. Id. While at committee, Defendant K. Todd was extremely hostile towards Plaintiff, threatening to have him committed to a psychiatric facility if he continued to file grievances. Id. Defendant Todd had denied all of Plaintiff's grievances against Defendant Lopez. Id. Plaintiff contends a violation of the First Amendment.
Defendant S. Skeen began to try and coax Plaintiff into agreeing to take psychotropic medication, an attempt, Plaintiff contends, to render Plaintiff docile and passive and unable to pursue his First Amendment rights. Id. at 10. Defendant S. Skeen conspired to harm Plaintiff in furtherance of Defendant Todd's threats to have Plaintiff committed to a psychiatric facility. Id. Plaintiff contends a violation of the First and Eighth Amendment.
Plaintiff submitted a grievance contending misconduct by Defendants Lopez, Todd, Chapman, Hansen, Buentempo, Skeen, McDill, and Nelson. Id. at 11. On April 2, 2003, while in the hole, Defendants P. Matzen and J. Garza came to Plaintiff's cell door and displayed the inmate grievance. Id. Defendant Matzen asked whether Plaintiff was sure he wanted to proceed further with the appeal. Id. Defendant Garza slowly put on his black gloves to intimidate Plaintiff. Id. Plaintiff replied yes. Id. After Defendants Matzen and Garza left, Defendant A. Lopez appeared very soon after with Defendants Matzen and Garza. Id. Defendant Lopez shouted that Plaintiff would be put up for transfer, and threatening Plaintiff with violence. Id. Defendant Lopez repeatedly ordered Plaintiff to get out of his cell. Id. Plaintiff contends a violation of the First Amendment.
On April 4, 2003, Defendant A. Lopez had Defendant Hopkins fabricate a 114 D lockup order for Plaintiff allegedly refusing numerous direct orders to exit his cell and be taken back to general population. Id. at 12. Plaintiff had requested in his inmate grievance to be retained in the hole to protect against further retaliation. Id. Plaintiff then received a CDC 115 authored by Defendant M. Dunlop. Id. The first hearing officer assigned to hear the rules violation, lieutenant Galvan, refused because no staff would say that they issued direct orders. Id. On May 22, 2003, Defendant J. L. Peterson appeared and found Plaintiff guilty without any evidence. Id. On May 23, 2003, Plaintiff was interviewed by Defendant Dunlop regarding an unrelated matter, and admitted that after he wrote the 115 at issue, Defendant discovered that no staff had given Plaintiff direct orders. Id. Defendants Lopez and Todd brought Plaintiff back to classification committee in absentia and released Plaintiff back to classification. Id. Plaintiff received a classification chrono dated April 3, 2003, authored by Defendants Lopez, White, Todd, and McLaughlin stating that Plaintiff had agreed to the committee's actions. Id. Plaintiff contends a violation of the First Amendment.
On April 28, 2003, Plaintiff submitted an appeal against Defendants Todd, Lopez, White, and McLaughlin regarding the classification chrono. Id. at 13. On June 23, 2003, Plaintiff received a response, in which Defendant J. Gutierrez responded that Defendant L. Garcia had interviewed Plaintiff twice, and he refused to attend the classification because he did not want to be released back to general population. Id. Plaintiff contends that he never spoke to Defendant Garcia about anything, and that Defendants Garcia and Gutierrez had thus joined the conspiracy of retaliation against Plaintiff. Id. Plaintiff contends a violation of the First Amendment.
On June 17, 2003, Defendants Lopez, Zanchi, Chapman, Garza, Jones, Sherrit, Newby, Arellano, Watson, Genova, and G. Garcia conspired to fulfill Defendant Lopez's threat of cell-extraction. Id. at 14. Defendants Garza and J. Jones each discharged the entire contents of a MK-46 pepper spray dispenser into Plaintiff's cell. Id. After Defendant Garza emptied his dispenser, he opened the food port of Plaintiff's cell door and discharged the entire contents of a MK-9 pepper spray into the cell, transforming Plaintiff's cell into a proverbial gas chamber. Id. Plaintiff was denied medical care while in the holding cage. Id. Plaintiff summoned a medical MTA Deperio, who informed Plaintiff that the cell extraction was outside of policy because medical had not been notified. Id. Upon Plaintiff's arrival at Lancaster State Prison on June 17, 2003, Plaintiff forwarded an amended appeal to Defendant N. Grannis, chief of the inmate appeals branch, informing of Defendant Lopez's actions. Id. Plaintiff contends a violation of the First Amendment, and excessive force in violation of the Eighth Amendment. Id.
On July 7, 2003, Defendant N. Grannis sent a rejection notice to Plaintiff, stating that the office provided only the Director's level review. Id. at 15. On August 8, 2003, Plaintiff received this notice. Id. Plaintiff immediately made an attempt to submit an amendment to the appeal to Defendant S. Whitlach, appeals coordinator at CCI. Id. On September 16, 2003, Defendant Whitlach sent a response, rejecting Plaintiff's amendment, which Plaintiff received on December 25, 2003. Id. Plaintiff then wrote a letter to Defendant Whitlach, explaining that his amendment to the appeal had been forwarded in a timely manner, and returned the appeal back to Defendant Whitlach for processing. Id. at 16. On October 1, 2004, Defendant Whitlach refused to process the grievance because it was untimely. Id. Plaintiff then forwarded his appeal again to Defendant Grannis. On December 24, 2004, Defendant Grannis again rejected the appeal, for the same reason. On January 11, 2005, Plaintiff again submitted his appeal, this time including an additional inmate grievance against Defendants Grannis and Whitlach. Id. On June 25, 2005, Plaintiff received a response from Defendant Grannis, which Plaintiff believes is a reversal of Defendant Grannis's previous position. Id. at 16-17. The response returned Plaintiff's appeal, and also stated that the matter had been fully adjudicated and a decision rendered. Id. Plaintiff believes Defendants Grannis and Whitlach are part of a conspiracy against Plaintiff. Id.
Plaintiff contends a violation of the Supremacy Clause, 18 U.S.C. §§ 1961, 1962(d), and 1341, RICO (Racketeer Influenced and Corrupt Organizations ...