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Alvaro Quezada v. R. Fisher

January 3, 2012

ALVARO QUEZADA,
PLAINTIFF,
v.
R. FISHER, ET AL.,
DEFENDANTS.



FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT THIS ACTION BE DISMISSED AS DUPLICATIVE OF ACTION NO: 1:08-cv-01404-FRZ ORDER THAT PLAINTIFF'S OBJECTION SHOULD BE NO LONGER THAN FIFTEEN PAGES.

I. Procedural History

Plaintiff Alvaro Quezada ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed his original complaint on October 22, 2009, which is currently before the Court. Doc. 1. Upon review of the complaint, it appears to the Court that this action is proceeding on substantively identical issues to the second amended complaint that Plaintiff filed on June 1, 2009, in Quezada v. Hedgpeth, et al., 1:08-cv-01404-FRZ. Compare Quezada v. Fisher, et al., 1:09-cv-01856-LJO-GBC at Doc. 1-2 with Quezada v. Hedgpeth, et al., No. 2009 WL 1911765, 1:08-cv-01404-FRZat Doc. 18-19.

II. Screening

A. Screening Standard

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).

"'Under § 1915A, when determining whether a complaint states a claim, a court must accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff.'" Hamilton v. Brown, 630 F.3d 889. 892-93 (9th Cir. 2011) (quoting Resnick v. Warden Hayes, 213 F.3d 443, 447 (9th Cir.2000). "'Additionally, in general, courts must construe pro se pleadings liberally.'" Id. A complaint, or portion thereof, should only be dismissed for failure to state a claim upon which relief may be granted "if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); see also Synagogue v. United States, 482 F.3d 1058, 1060 (9th Cir. 2007); NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). In determining whether to dismiss an action, the Court must accept as true the allegations of the complaint in question, and 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, 421-22 (1969); Daniels-Hall v. National Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010).

B. Plaintiff's Complaint

Plaintiff is incarcerated at California State Prison, Corcoran and is suing under section 1983 for events which occurred while a prisoner at Kern Valley State Prison in Delano California. Doc.

1. In his complaint, Plaintiff names the following defendants: 1) R. Fisher (Captain); 2) C. Jose (Sergeant); 3) D. I. Doria (Sergeant); 4) C. Scott (Correctional Officer); and 5) H. Ortiz (Correctional Officer). Doc. 1 at 2-4. Plaintiff seeks declaratory relief, compensatory and punitive damages. Doc. 1 at 3.

1. Defendant Fisher

Plaintiff alleges that Defendant Fisher "launched [a] conspiracy to violate plaintiff's [First]

Amendment rights [because of] Plaintiff's active role as an 'Inmate Advisory Counsel Representative'" ("IAC"). Doc. 1 at 4, 26. Plaintiff alleges that he was penalized by Defendant Fisher because Plaintiff sent a complaint on August 14, 2006, to the Warden for KVSP (Mike Knowles), regarding Defendant Fisher's "willful disregard" for the IAC representatives. Doc. 1 at 4, 21-22, 26. According to Plaintiff, Defendant Fisher displayed a lack of respect to the IAC body which were attempting to implement "pro-social programs for the 'General Population through [SB-737 ].'" Doc. 1 at 4, 26.

On January 10, 2007, Defendant Fisher was the chairperson for Plaintiff's Unit Classification Committee ("UCC") for Plaintiff's annual review. Doc. 1 at 4, 26. Plaintiff requested that the UCC consider Plaintiff's "needs, interest, and desires" and requested that he be classified so that the Daily Movement Sheet ("DMS") would reflect Plaintiff current "Chrono" which already identified Plaintiff as an "other." Doc. 1 at 4, 26. According to Plaintiff, he introduced his informative chrono ("128-G") specifying that Plaintiff was housed with "non-affiliated others" and Plaintiff submitted a roster that confirmed Plaintiff was the officially elected IAC Representative for the "others" of the B2 housing unit. Doc. 1 at 4, 26-27. Although Plaintiff identifies himself as "of Hispanic origin," Plaintiff states that he explained to the UCC that he wished to be classified as "other," and not as Mexican for the purpose of clarification and to eliminate any erroneous association to the Hispanic prison gangs or other disruptive groups based on KVSP officials implementation of race-based lock-downs. Doc. 1 at 5, 27.

According to Plaintiff, Defendant Fisher "conspired in the meeting of the minds" with other UCC members, R. Thomas and G. Garcia and the said conspiracy was for the purpose of denying Plaintiff's request to be categorized as "other" rather than as "Mexican." Doc. 1 at 5, 27. Plaintiff alleges that in furtherance of this retaliatory conspiracy, Defendant Fisher instructed Plaintiff's "Housing Control Officer" Harrison to confine Plaintiff with the rest of the Hispanic prison gang members that were currently on lock-down and awaiting a criminal investigation. Doc. 1 at 5, 27. Additionally, Plaintiff alleges that he has a chrono signed by Defendant Fisher acknowledging that Plaintiff was neither affiliated with the "Southern Hispanic Scenario" nor any disruptive groups or gangs. Doc. 1 at 5-6, 27. According to Plaintiff, Defendant Fisher knowingly disregarded all of Plaintiff's informative documents that clearly proved that Plaintiff's was not affiliated with any prison gang or disruptive group. Doc. 1 at 6, 27.

On January 11, 2007, Plaintiff filed another "constructive notice" to the newly appointed warden, A. Hedgpeth, in which Plaintiff complained that he was being placed on lock-down, and subjected to a punitive cell search that was specifically targeting the "Hispanic Disruptive groups" that were under a criminal investigation. Doc. 1 at 6, 28. Plaintiff further expressed to Hedgpeth that he was being retaliated against by KVSP officials for his current civil suit, and for numerous appeal grievances that he filed against the KVSP administration. Doc. 1 at 6, 28. On January 22, 2007, Plaintiff filed a 602 grievance regarding the retaliatory UCC decision that was rendered by Defendant Fisher and the UCC. Doc. 1 at 6, 28.

Plaintiff asserts that the grievance initially filed on January 22, 2007, regarding the adverse UCC decision rendered by Defendant Fisher and the UCC body on January 10, 2007, was systematically hindered by the appeals coordinators. Doc. 1 at 7, 28. According to Plaintiff, his appeal was "unlawfully screened out" six times from February 8, 2007, through June 20, 2007. Doc. 1 at 7, 28.

On March 29, 2007, Plaintiff filed a staff complaint against B. Gricewich, the appeals coordinator, for "willfully manipulating the UCC appeal grievance" that Plaintiff attempted to file on January 22, 2007. Doc. 1 at 8. Plaintiff asserts that KVSP officials also refused to process Plaintiff's grievance against Gricewhich. Doc. 1 at 8. On May 22, 2007, Plaintiff filed another "constructive notice" to A. Hedgpeth regarding B. Gricewhich's refusal to process Plaintiff's staff complaint. Doc. 1 at 8. On June 11, 2007, Plaintiff filed another "constructive notice" to N. Grannis, the Chief Inmate Appeals Coordinator, regarding the "retaliatory ...


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