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Ruben M. Davis, Cdcr #C-23494 v. R. Fregoso; E. Loya

September 25, 2012

RUBEN M. DAVIS, CDCR #C-23494, PLAINTIFF,
v.
R. FREGOSO; E. LOYA;
M. RESLER; J. ROCHA
DEFENDANTS.



The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S SECOND AMENDED COMPLAINT PURSUANT TO FED.R.CIV.P.12(b) AND 12(b)(6) [ECF No. 32]

I. PROCEDURAL BACKGROUND

Ruben M. Davis ("Plaintiff"), a prisoner currently incarcerated at California State Prison - Los Angeles County located in Lancaster, California, proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on July 29, 2010. Currently, Plaintiff is proceeding with his Second Amended Complaint which was filed on May 9, 2011. [Doc. No. 18.] Defendants Fregoso, Loya, Resler and Rocha have filed a Motion to Dismiss pursuant to FED.R.CIV.P. 12(b)*fn1 and 12(b)(6). [Doc. No. 27.] Plaintiff has filed his Opposition, to which Defendants have replied. [Doc. Nos. 36, 39.] The Court has determined that Defendants' Motion is suitable for disposition upon the papers without oral argument and that no Report and Recommendation from the assigned magistrate judge is necessary. See S.D. CAL. CIVLR 7.1(d)(1), 72.3(e).

II. FACTUAL ALLEGATIONS

Plaintiff was housed at Calipatria State Prison ("CAL") in 2008. (See SAC at 4.) On August 4, 2008, Plaintiff's cellmate, Eric Lindfors, had a meeting with an Imperial County Public Defender who was requesting Lindfor's assistance in testifying on behalf of his client, another inmate who had been housed at CAL. (Id.) Specifically, Deputy Public Defender Henry Yorgey noted that Lindfors had previously filed grievances against Defendant Rocha, a CAL correctional officer, and he wanted Lindfors to testify that Defendant Rocha engaged in corruptive practices. (Id.) Lindfors agreed to testify. (Id.)

Approximately one month later, Plaintiff alleges Defendant Rocha approached him and said "you better get Lindfors to shut his mouth or else he will end up like inmate Flores." (Id.) It is alleged that Inmate Flores was retaliated against by Defendants Rocha and Resler for filing grievances against them by planting a weapon in his cell. (Id.)

In that same time frame, Plaintiff was approached by Inmate Cervantes who told Plaintiff that Defendants Rocha and Resler knew which inmates were providing testimony against Defendant Rocha. (Id.) Defendants Rocha and Resler would verbally harass Plaintiff and his cellmate by threatening to retaliate against them if Plaintiff continued to testify. (Id. at 5.) Plaintiff wrote to the Deputy Public Defender regarding his fear of retaliation by Defendants Rocha and Resler. (Id.)

That same evening, Plaintiff was informed by Inmate Singerman that Defendants Rocha and Resler "had pulled [Singerman] to the side and told him that Lindfors is snitching on Rocha and Resler." (Id. at 6.) Singerman told Plaintiff that he was ordered to tell Lindfors "that he better keep his mouth shut" otherwise Plaintiff's legal mail would never "leave the prison." (Id.) Singerman would not provide Plaintiff or Lindfors with a declaration because he feared retaliation by Defendants Rocha and Resler. (Id.) On October 4, 2008, Defendants Resler and Rocha pulled Inmate Singerman aside again. Plaintiff claims Defendant Resler began "rambling on about retaliating against Plaintiff and Lindfors." (Id.) However, Defendant Rocha is alleged to have said to Defendant Resler to "be quiet, you are going to ruin the surprise I have for Lindfors." (Id.) Again, Inmate Singerman refused to provide Plaintiff or his cellmate with a declaration because he did not "want any problems with those crooked cops." (Id.)

Two days later, on October 6, 2008, Plaintiff learned that his facility was placed on lockdown in order that cell searches may be conducted. (Id.) Defendant Resler, while passing out dinner trays, said to Plaintiff and his cellmate that he would be searching their cell the next day and he could not "wait to come up in there (Plaintiff's cell)." (Id. at 7.) Plaintiff and his cellmate believed that was a threat to find planted contraband in their cell so they wrote letters to their families, Deputy Public Defendant Yorgey, and Warden Small informing them they were being retaliated against and likely would end up in "the hole" by the end of the week. (Id.) They sent the letters under a different inmate's name to avoid detection. (Id.)

On October 9, 2008, when the search began in Lindfors's facility, Plaintiff "observed Rocha and Resler enter the building together with personal carrying bags in their hands." (Id. at 8.) Plaintiff claims that Defendant Rocha and Resler "had a meeting" with Defendant Loya. (Id.) Plaintiff attempted to inform other correctional officers, Defendants E. Garcia and Fregoso, of their fear of retaliation. (Id.) Plaintiff requested that Garcia and Fregoso search his cell in place of Rocha and Resler but they refused. (Id. at 9.) Fregoso is alleged to have walked away while Plaintiff claims Defendant Garcia said he would "relay those concerns to his supervisor." (Id.) Later, Plaintiff spoke to Sergeant Rutledge relaying his concerns. (Id.) Sergeant Rutledge promised to speak to another supervisor. (Id.) A few minutes later, Sergeant Rodriquez came to his cell and Plaintiff"reiterated all of the concerns above." (Id.) Sergeant Rodriguez, in turn, spoke to Lieutenant Valenzuela about Plaintiff's concerns. (Id. at 10.) Plaintiff alleges that Lieutenant Valenzuela "clearly tipped [Defendant Resler] off to [Plaintiff's] complaints' of retaliation by Defendants Resler and Rocha. (Id. at 10.)

Plaintiff claims Defendants Rocha, Resler, and Loya gathered to have a meeting. (Id.) During this conference and in the events following, Plaintiff claims Defendant Loya kept looking at Plaintiff's cell "with a smirk" on his face. (Id.) Plaintiff, along with Inmate Lindfors, wrote on a "piece of blue paper" their version of the incidents that were happening, recorded the date and time, and placed the paper behind a picture in a photo album in their cell. (Id. at 10.) Later that day, Correctional Officers Manning and Lizarraga conducted a "thorough cell and property search" of Plaintiff's cell. (Id. at 11.) This search included an "x-ray scan of all of Plaintiff's personal property." (Id.) There were no findings of contraband. (Id. at 12.) Plaintiff and his cellmate were "cleared" to return to their cell. (Id.)

Before Plaintiff and his cellmate entered their cell, Plaintiff claims Defendant Loya "walked into their cell," and came out to inform the escorting correctional officers that he had "just discovered an inmate manufactured weapon inside Plaintiff's cell, inside Plaintiff's accordion legal folder sticking out in open view." (Id.) Plaintiff and his cellmate were placed under arrest and sent to the "clinic holding cells." (Id. at 12.) Plaintiff and Inmate Lindfors informed Sergeant Rutledge of the blue note they had placed in their cell and asked Sergeant Rutledge to retrieve the note. (Id.) Sergeant Rutledge returned to the cell, "retrieved the blue note, made a memorandum to it and turned it all in to Captain Miller. (Id.)

Later that day, Sergeant Mata issued a "lock-up order" to Plaintiff and his cellmate for possession of an inmate weapon and "ordered separate [correctional officers] to escort them to the hole." (Id.) Plaintiff claims this allowed Defendant Rocha to have "full access to Plaintiff's personal property still inside" his cell. (Id.) Plaintiff claims Defendant Rocha "proceeded to trash and destroy both inmates' legal, educational, appliances, clothing and religious personal property." (Id.) Plaintiff filed administrative grievances objecting to the destruction of his property. (Id. at 13.)

Captain Miller came to Ad-Seg the next day to conduct Plaintiff's initial disciplinary hearing. (Id.) Miller confirmed that Sergeant Rutledge had found the blue note and had turned it over to her. (Id.) On October 21, 2008, Plaintiff received his Rules Violation Report charging him with possession of an inmate manufactured weapon. (Id.) In this report, along with the accompanying documents, was a report by Defendant Fregoso claiming that he was in the cell with Defendant Loya when he found the weapon. (Id. at 14.) However, Defendant Loya's report indicated that Defendant Fregoso "was out on the tier" at the time he allegedly found the weapon in Plaintiff's cell. (Id.)

Plaintiff alleges Lieutenant Beltron investigated the conspiracy claim against Rocha, Resler and Loya. (Id. at 15.) Beltran allegedly told Plaintiff that he was "offended" that Plaintiff accused "'his boys' of corruption." (Id.) Beltran then denied Plaintiff's grievances. (Id.)

III.

DEFENDANTS'MOTION TO DISMISSPURSUANT TO FED.R.CIV.P. 12(b)

As a preliminary matter, the Court will first consider Defendant Fregoso's argument that the claims against him in Plaintiff's Second Amended Complaint should be dismissed for failing to exhaust available administrative remedies pursuant to ...


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