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Steven Joseph Noble Iv v. Lt. v. J. Gonzalez

June 27, 2012

STEVEN JOSEPH NOBLE IV,
PLAINTIFF,
v.
LT. V. J. GONZALEZ,
DEFENDANT.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER FINDING COGNIZABLE CLAIM ORDER FOR THIS ACTION TO PROCEED ON AMENDED COMPLAINT AGAINST DEFENDANT GONZALEZ FOR RETALIATION UNDER THE FIRST AMENDMENT (Doc. 15.) ORDER REQUIRING DEFENDANT GONZALEZ TO RESPOND TO AMENDED COMPLAINT WITHIN THIRTY DAYS

I. BACKGROUND

Steven Joseph Noble IV ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the original Complaint on July 31, 2007. (Doc. 1.) The Court screened the Complaint pursuant to 28 U.S.C. § 1915 and entered an order on December 19, 2008, dismissing the Complaint for failure to state a claim, with leave to amend. (Doc. 12.) On February 24, 2009, Plaintiff filed an Amended Complaint. (Doc. 15.) The Court screened the Amended Complaint pursuant to 28 U.S.C. 1915 and entered an order on November 24, 2009, finding that Plaintiff stated a cognizable claim against Defendant Gonzalez for violation of due process, and initiating service of process. (Doc. 16.)

On May 14, 2010, the Court issued a scheduling order commencing discovery, and on January 19, 2011, Plaintiff filed a motion to compel. (Docs. 21, 23.) On May 27, 2011, the Court ordered Defendant to provide further discovery responses, and on July 1, 2011, Defendant submitted documents to the Court for in camera review. (Doc. 28.) In the course of reviewing materials submitted by Defendant, the Court conducted a sua sponte screening of the Amended Complaint pursuant to 28 U.S.C. 1915 and found that Plaintiff failed to state a due process claim. On January 10, 2012, the Court entered findings and recommendations, recommending dismissal of this action for failure to state a claim. (Doc. 29.) On March 8, 2012, the District Judge adopted in part the findings and recommendations, dismissed Plaintiff's due process claim without leave to amend, and referred the case back to the Magistrate Judge for re-screening of the Amended Complaint to determine if Plaintiff states a viable claim for retaliation. (Doc. 33.) The Amended Complaint is now before the Court for re-screening, pursuant to the March 8, 2012 order.

II. SCREENING REQUIREMENT

Pursuant to 28 U.S.C. § 1915(e)(2), the Court must conduct an initial review of the complaint for sufficiency to state a claim. "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 . . . is legally "frivolous or malicious," fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). If the court determines that the complaint fails to state a claim, leave to amend may be granted to the extent that the deficiencies of the complaint can be cured by amendment.

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 Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). "[P]laintiffs [now] face a higher burden of pleadings facts . . ," Al-Kidd v. Ashcroft, 580 F.3d 949, 977 (9th Cir. 2009), and while a plaintiff's allegations are taken as true, courts "are not required to indulge unwarranted inferences," Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).

III. SUMMARY OF AMENDED COMPLAINT

The events alleged in the Amended Complaint occurred at North Kern State Prison ("NKSP") in Delano, California, while Plaintiff was incarcerated there. Plaintiff names Correctional Lieutenant V. J. Gonzalez as the only defendant in this action.

Plaintiff alleges that between April 2006 and July 2006 he filed two Form 602 inmate appeals which inadvertently disgruntled and affected numerous prison officials. Both appeals were granted in Plaintiff's favor. On July 20, 2006, Plaintiff alleges he was attacked by several prison guards, in retaliation for filing and litigating the appeals.

As a result of the attack, Plaintiff was issued a CDC-115 Rules Violation Report ("RVR"), charged with attempted battery on a peace officer, and placed into administrative segregation ("Ad-Seg") to await adjudication of the RVR.

Plaintiff filed a Citizen's Complaint under California Penal Code § 832(f) and notified his family about the incident. One of Plaintiff's family members faxed the Warden of NKSP a copy of Plaintiff's Citizen's Complaint. The first Citizen's Complaint was ignored, and the second one (copy) was denied as untimely, even though under the regulations (CCR § 3391), a Citizen's Complaint may be filed within twelve months of the alleged misconduct.

On September 7, 2006, while still confined in Ad-Seg, Plaintiff was subjected to a disciplinary hearing presided over by Lt. Gonzalez who acted as the Senior Hearing Officer. Plaintiff sought to call witnesses and introduce documentary evidence and a video recording at the hearing. However, Lt. Gonzalez refused to allow Plaintiff to call any witnesses, present evidence, or speak on his own behalf. Lt. Gonzalez arbitrarily pronounced Plaintiff guilty and assessed penalties upon Plaintiff, causing a major disruption in Plaintiff's environment.

Plaintiff was assessed a forfeiture of one hundred fifty days of good time credits. In addition, fourteen unfavorable behavior points were added to Plaintiff's classification score, causing him to be ineligible for Level III facility housing where he received daily access to yard and/or dayroom activities, showers, phones, library, chapel services, special purchase items, and regular Friday-through-Sunday visiting. Plaintiff was also assessed a six-month Security Housing Unit ("SHU") term in the Ad-Seg unit, where he was deprived of even the minimum amount of personal property allowed by inmates in the regular ...


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