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Alvaro Quezada v. A. Herrera

March 29, 2012

ALVARO QUEZADA,
PLAINTIFF,
v.
A. HERRERA, ET AL.,
DEFENDANTS.



FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED Docs. 13, 14 OBJECTIONS DUE WITHIN THIRTY DAYS

Findings and Recommendations

I. Procedural History, Screening Requirement, and Standard

On March 17, 2010, Plaintiff Alvaro Quezada ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983, alleging Defendants conspired and retaliated against Plaintiff for complaining and criticizing the double standard that inmates have to wear hairnets but Sacramento personnel inspectors do not. Doc. 1. On March 1, 2011, the Court issued a screening order, dismissing Plaintiff's complaint, with leave to amend. Doc. 8. On July 1, 2011, Plaintiff filed a first amended complaint. Doc. 13. Plaintiff also submitted various exhibits with his amended complaint. Ex. Am. Compl., Doc. 14.

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, 556 U.S. 662, __, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)), and courts "are not required to indulge unwarranted inferences," Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 129 S. Ct. at 1949.

While prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, the pleading standard is now higher, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). Under § 1983, plaintiff must demonstrate that each defendantpersonally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S. Ct. at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 129 S. Ct. at 1949-50; Moss, 572 F.3d at 969.

Section 1983 provides a cause of action for the violation of constitutional or other federal rights by those acting under color of state law. E.g., Patel v. Kent School Dist., 648 F.3d 965, 971 (9th Cir. 2011); Jones, 297 F.3d at 934. For eachdefendant named, plaintiff must show a causal link between the violation of his rights and an action or omission of the defendant. Iqbal,129 S. Ct. at 1949-50; Starr v. Baca, 652 F.3d 1202, 1205-06 (9th Cir. 2011); Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009). There is norespondeat superior liability under § 1983, and each defendant may only be held liable for misconduct directly attributed to him or her. Iqbal, 129 S. Ct. at 1949-50; Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009).

II. Allegations in Plaintiff's First Amended Complaint

In Plaintiff's first amended complaint, he names Defendants A. Herrera, Supervising Correctional Cook; M.C. Davis, Correctional Sergeant; P. Daniels, Office Assistant for Main Kitchen; and D. Tarnoff, Appeals Coordinator, who were all employed by Kern Valley State Prison ("KVSP"). Am. Compl. at 1, 3-4, Doc. 13. Plaintiff was punished and retaliated against for engaging in his right to complain about issues of health and safety. Id. at 5. On February 21, 2008, Defendant Herrera demanded that Plaintiff put on a hairnet before work in the kitchen. Id. at 5-6. Plaintiff voiced "health concerns" regarding unidentified Sacramento personnel inspectors who were not wearing hairnets. Id. at 5. Plaintiff was penalized by being sent back to his housing unit and not allowed to report for work that day in retaliation for complaining and criticizing the double standard that inmates have to wear hairnets but Sacramento personnel inspectors do not. Id. at 6. Plaintiff verbally warned Defendant Herrera that he was going to write him up for these retaliatory acts. Id. On the same date, February 21, 2008, Defendant Herrera filed a rule violation report ("RVR"), charging Plaintiff with refusing to wear a hairnet. Ex. Am. Compl. at 9, Doc. 14. In Plaintiff's response to the RVR, he stated that he should not have been required to wear a hairnet. Id. at 5.

On February 25, 2008, Plaintiff filed a 602 inmate appeal against Defendant Herrera. Id. at 9. In Plaintiff's inmate appeal, he wrote that if Defendant Herrera was "so adamant about enforcing the hairnet rule, then he should have all free staff / unidentified personnel . . . [also] wear a hairnet." Id.

Defendants Herrera and Davis had a "meeting of the minds" to file a false retaliatory RVR. Am. Compl. at 7, Doc. 13. Plaintiff filed numerous complaints against the Appeals Coordinator, as Plaintiff is repeatedly engaged in "activism" through "verbal communication" with KVSP Food Service Managers. Id. Defendant Herrera's purpose in removing Plaintiff from the kitchen was to prevent Plaintiff from addressing the unidentified Sacramento inspectors about "health and safety concerns." Id. Plaintiff filed a separate civil action in Federal Court against the Appeals Coordinator regarding retaliation against inmates that have a reputation for complaining. Id.

On March 22, 2008, Plaintiff was found guilty of the RVR for refusing to wear a hairnet. Id. On March 24, 2008, Plaintiff filed a staff complaint, alleging misconduct by Defendant Herrera for filing the false RVR. Id. at 9. The appeal was maliciously screened out as duplicative. Id. Defendant Herrera retaliated against Plaintiff's First Amendment right to complain and criticize. Id. Defendant Davis conspired with Defendant Herrera to fabricate a false RVR. Id. at 11.

On May 13, 2008, the librarian paged Plaintiff to the library, in order to complete a motion his Ninth Circuit appeal. Am. Compl. at 13, Doc. 13; Ex. Am. Compl. at 71, Doc. 14. On May 22, 2008, Defendant Davis imposed a disciplinary RVR in retaliation for Plaintiff being at the library. Am. Compl. at 13. Defendant Davis had a meeting of the minds with Plaintiff's supervisor, Defendant Daniels. Id. at 11. Defendant Davis ordered Defendant Daniels to file a disciplinary report stating that Plaintiff went to the law library instead of going to work. Id. at 12. Defendant Davis's actions only furthered the conspiracy with Defendant Herrera. Id.

On May 29, 2008, June 16, 2008, Defendant Tarnoff screened out Plaintiff's appeals as duplicative. Ex. Am. Compl. at 28, 31, Doc. 14. On June 2, 2008, Plaintiff immediately filed a staff complaint against Defendant Davis for maliciously participating in a conspiracy to fabricate a false RVR with ...


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