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Stewart Manago v. Gonzalez

December 18, 2012

STEWART MANAGO, PLAINTIFF,
v.
GONZALEZ, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

FIRST SCREENING ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND and DISMISSING PLAINTIFF'S MOTION FOR STATUS REPORT AS MOOT (Docs. 1, 28) THIRTY-DAY DEADLINE

I. FIRST SCREENING ORDER

Plaintiff, Stewart Mango, ("Plaintiff") is a state prisoner who is currently proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed his Complaint in this action ("Complaint #1") on August 1, 2011. (Doc. 1.) Initially, Plaintiff's application to proceed in forma pauperis was granted. (Docs. 2, 4, 6, 7.) Subsequently, his in forma pauperis status was revoked and the case was eventually dismissed without prejudice for Plaintiff's failure to pay the filing fee in full and judgment was entered. (Docs. 9, 12, 13.) Plaintiff filed an appeal on February 27, 2012. (Doc. 14.) Remand was requested and granted per Federal Rule of Appellate Procedure 12.1. (Doc. 18, 22.) Prior to remand, on March 30, 2012, Plaintiff filed a new complaint ("Complaint #2) which was opened under case number 1:12-cv-00488-DLB which was consolidated with this action on September 6, 2012 on the conclusion that they involved a common question of law and fact. (Doc. 26)

A. Screening Requirement

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). Since this action has been consolidated, both Complaints #1 and #2 are subject to screening.

B. Summary of Plaintiff's Complaints

In Complaint #1, Plaintiff names defendants from Kern County, Sacramento County, and Pelican Bay State Prison. Specifically, Plaintiff names the following Defendants who "are believed to be residents of Kern County, California:" F. Gonzalez, Former Warden; M.D. Stainer, Chief Deputy Warden; K. Holland, Chief Deputy Warden; T. Steadman, Associate Warden; M. Bryant, Facility Captain; J. Gutierrez, Correctional Captain; M. Dunlop, Correctional Lieutenant; J. Gentry, Former Lieutenant; Contreras, Sergeant; J. Tyree, Sergeant;

K. Sigston, Facility Sergeant; J. Franco, Program Sergeant; A. Smith, Sergeant; K. Soto, Sergeant; K. Sampton, Appeals Coordinator; E. Stelfer, Correctional Counselor; T. Turmezei, Officer; Adame, Officer; W. Gutierrez, Officer; and A. Cantu. Plaintiff names the following as Defendants who "are believed to be residents of Sacramento County, California:" M. Buechner, Special Agent; D. Jakabosky, Special Agent; W. Webb, CSR Staff; B. Powell, CSR Staff; A. Ortiz, Sergeant; and Inmate R. Harris (CDCR No. J-82216). Plaintiff also names Correctional Officer S. Burris from Pelican Bay State Prison as a defendant in this action.

In Complaint #1, Plaintiff generally alleges that he filed an action back in 2008 which resulted in the termination of correctional officer, Mary Brockett, because of Plaintiff's "criminal complaints" that she subjected him to sexual harassment and sexual assault which were investigated, found to be meritorious, and resulted in her termination. Plaintiff alleges that the named defendants confiscated, read, and disseminated his privileged legal communications from that action; that he was subjected to a retaliatory transfer to California Correctional Institution; and that he was wrongly validated as a Black Gorilla Family (prison gang) member when he has been a life long Project Wats Crips (street gang) member. These two gangs are known enemies of each other within the California prison system. Plaintiff delineates the following ten causes of action: (1) for violation of his rights under the First Amendment to engage in jail-house lawyer activities; (2) for violation of his right to freedom of association under the First Amendment; (3) for violation of his rights to free speech and freedom of association under the First Amendment;

(4) for violation of his rights under the First Amendment to be free from retaliation; (5) for violation of his right to associate with members of his own racial group under the First Amendment and the Equal Protection Clause; (6) for violation of his rights to not be subjected to cruel and unusual punishment, deliberate indifference, and the risk of retaliation and retribution;

(7) for violation of his rights to not be subjected to cruel and unusual punishment based on false classification and placement in the secured housing unit ("SHU") based on corruption and retaliation; (8) for violation of his rights to not be subjected to cruel and unusual punishment by being "illegally" housed in management cell in retaliation for legitimate jail-house lawyer activities; (9) for unconstitutional conspiracy activities; and (10) for failure to lawfully administer and supervise.

In Complaint #2 Plaintiff names the same Defendants as he named in Complaint #1.

In Complaint #2, Plaintiff again generally alleges that he filed an action back in 2008 which resulted in the termination of correctional officer, Mary Brockett, because of Plaintiff's "criminal complaints" that she subjected him to sexual harassment and sexual assault which were investigated, found to be meritorious, and resulted in her termination. Plaintiff alleges that the named defendants confiscated, read, and disseminated his privileged legal communications from that action; that he was subjected to a retaliatory transfer to California Correctional Institution; and that he was wrongly validated as a Black Gorilla Family (prison gang) member when he has been a life long Project Wats Crips (street gang) member. These two gangs are known enemies of each other within the California prison system. Plaintiff delineates the following four causes of action: (1) protection from violence by other staff and inmates within C.D.C.R.; (2) retaliation and retribution; (3) malicious misclassification, segregation, deliberate indifference to risk of retaliation; and (4) failure to train and supervise/supervisory liability.

Plaintiff only seeks monetary damages in both Complaints #1 and #2. It is noteworthy that, while he does not seek injunctive relief (i.e. removal of erroneous prison gang validation from his C-File), Plaintiff has filed a motion for preliminary injunction requesting just that. (Doc. 20.) However, as is also addressed in the concurrently issued order on that motion, Plaintiff has not identified whether any Defendant he has named in either Complaint #1 and/or #2 has the authority to correct and error in his C-File. Without such person being named and identified as knowing of and failing to correct the error so as to amount to a constitutional violation, such relief cannot be granted. Further, the erroneous validation as a member of a prison gang which is a know enemy gang of that to which Plaintiff belongs is the basis for his showing of imminent danger upon which his IFP status was allowed. (Doc. 24.) Without a cognizable claim addressing this specific issue, Plaintiff's IFP status may be revoked. See 28 U.S.C. 1915(g).

Plaintiff may be able to amend to correct the deficiencies in his pleadings. Thus, he is being given the applicable standards based on his stated claims and leave to file a first amended complaint in this action.

C. Pleading Requirements

1. Federal Rule of Civil Procedure 8(a)

"Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions," none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002); Fed. R. Civ. Pro. 8(a). Pursuant to Rule 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. Pro. 8(a). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. However, "the liberal pleading standard . . . applies only to a plaintiff's factual allegations." Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). "[A] liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled." Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982). "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).

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, 678 (2009), quoting Bell Atlantic 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.'" Iqbal, 556 U.S. at 678, quoting Twombly, 550 U.S. at 555. While factual allegations are accepted as true, legal conclusion are not. Iqbal. at 678; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009); Twombly, 550 U.S. at 556-557. While "plaintiffs [now] face a higher burden of pleadings facts . . ," Al-Kidd v. Ashcroft, 580 F.3d 949, 977 (9th Cir. 2009), the pleadings of pro se prisoners are still construed liberally and are afforded the benefit of any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). However, 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).

If he files a first amended complaint, Plaintiff should endeavor to make it as concise as possible. He should merely state which of his constitutional rights he feels were violated, by which Defendant(s), and the factual basis. Complaints #1 and #2 both present narratives of events followed by delineated claims for relief which re-allege and incorporate by reference all prior paragraphs such that there is no reference to any specific fact(s) upon which Plaintiff's claims are based. This format makes it extremely difficult, indeed impossible in some instances, for the Court to ascertain which facts Plaintiff feels support any of his multiple claims for relief. It is Plaintiff's duty to state cognizable claims for relief as the Court cannot speculate as to which facts Plaintiff believes may or may not support a violation of his constitutional rights that may be brought in a Section 1983 action.

An attempt is being made herein to analyze Plaintiff's claims and supporting allegations. However, if Plaintiff chooses to file a first amended complaint, he is encouraged not to follow the format used in Complaints #1 and #2; rather Plaintiff should delineate the specific right he feels was violated, name each Defendant that he feels violated that right, and then delineate the action(s) of each offending Defendant that Plaintiff believes show a violation of that specific constitutional right. It is Plaintiff's duty to correlate his claims for relief with their alleged factual basis against each named Defendant. The Court cannot speculate as to which facts Plaintiff believes show any given constitutional violation(s).

2. Linkage Requirement

The Civil Rights Act under which this action was filed provides:

Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983. The statute plainly requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by Plaintiff. See Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). The Ninth Circuit has held that "[a] person 'subjects' another to the deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made."Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). In order to state a claim for relief under section 1983, Plaintiff must link each named defendant with some affirmative act or omission that demonstrates a violation of Plaintiff's federal rights.

Plaintiff may not sue inmate R. Harris for civil rights violations. An inmate cannot act under color of law for an action under section 1983 to attach. Inmate R. Harris is dismissed as a Defendant with prejudice.

Further, in Complaint #1, Plaintiff states in all but one of his causes of action that "Defendants have violated" the discussed right. Even though his causes of action all re-allege and incorporate by reference all previous paragraphs of Complaint #1, all allegations generally against "Defendants" are insufficient and not cognizable. While Plaintiff named specific offending Defendants in each of his causes of action in Complaint #2, he fails to clearly identify which of his preceding factual allegations he bases his claim against each Defendant so as to give them sufficient notice and makes merely conclusory statements that, as discussed above, are insufficient. Iqbal. at 678.

Plaintiff must clarify which Defendant(s) he feels caused violation(s) of any of his constitutional rights and the factual basis. A complaint must put each defendant on notice of a plaintiff's claims against him or her and their alleged factual ...


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