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Hernandez v. Cate

United States District Court, C.D. California, Eastern Division

January 18, 2013

Raul HERNANDEZ, Plaintiffs,
Matthew CATE, et al., Defendants.

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Raul Hernandez, Blythe, CA, pro se.

Leena M. Sheet, CAAG-Office of CA Attorney General, Los Angeles, CA, for Defendants.


MANUEL L. REAL, District Judge.

Pursuant to 28 U.S.C. § 636(b)(1)(C), the Court has reviewed the Report and Recommendation of Magistrate Judge (" Report" ) and the objections to the Report, and the Supplemental Report and Recommendation. Good cause appearing, the Court accepts the findings and recommendations contained in the Report after having made a de novo determination of the portions to which objections were directed.



ANDREW J. WISTRICH, United States Magistrate Judge.


Plaintiff, a state prisoner proceeding pro se and in forma pauperis, filed a verified civil rights complaint [1] against state prison officials. The complaint seeks monetary, declarative, and injunctive relief against defendants in their individual and official capacities.

Defendants Long, Wiggins, Phillips, Busby, Rettagliata, Palmer, Cate, and Arneson filed a motion to dismiss the complaint and a request for judicial notice. Plaintiff filed an opposition to the motion with supporting exhibits. Defendants filed a reply memorandum, as well as objections

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to, and a request to strike, extrinsic evidence plaintiff filed with his opposition. Plaintiff was granted leave to file a sur-reply opposing the request to strike that evidence.[2]

Plaintiff's Allegations

Plaintiff alleges the following facts, which are accepted as true for purposes of this motion to dismiss.

Plaintiff, who was born in Guatemala, is incarcerated at Ironwood State Prison (" ISP" ). At all relevant times, the California Department of Corrections and Rehabilitation (" CDCR" ) classified his ethnicity as " Other." The CDCR also classified plaintiff as having no gang affiliation or association. [Complaint, Part II at 6 & Ex. B19-B22].

On December 4, 2009, a Mexican inmate in Facility " D" at ISP committed a battery on staff. As a result, all Mexican inmates and all inmates who associated or are affiliated with the Mexican inmates were placed either on " lockdown" or on " modified program." Modified program " means, but ... is not limited to, the suspension of all affected inmates' movement and privileges, and that all inmates will be fed in their cells." Plaintiff was not placed on lockdown or modified program status because he is classified as " Other." [Complaint, Part II at 6 & n. 1].

On December 6, 2009, defendant Wiggins sent a memorandum to defendant Payton advising him that " [i]n the best interest of the safety and security of the facility as well as the institution and all staff and inmates affected," 17 " Other" inmates, including plaintiff, would be placed on modified program status until Payton could " review the situation and provide clarification on how you want this situation handled." [Ex. A1]. Wiggins explained that the " Program Status Report" stated that inmates classified as " Other" who " associat[e] with Hispanic Inmates" were to be placed on modified program status. Wiggins explained that " [i]n speaking to facility control booth officers, floor staff and yard staff," it had been determined that the 17 " Other" inmates identified in his memorandum, including plaintiff,

associate with the general Hispanic/Mexican population. This was determined by their utilization of certain housing unit showers and whom they associate with in the dayroom or on the yard. Other open information was utilized was [sic] visual observations, by staff, of which inmates they associate with or " hang out with."

[Ex. A1]. Accordingly, plaintiff was placed on modified program status effective December 6, 2009. Wiggins told plaintiff that he was being " locked down with the Mexicans" because of the way he looked and his name. [Complaint, Part II at 7].

Defendant Pinson sent Payton a similar memo on December 8, 2009. Pinson advised Payton that the same seventeen " Other" inmates, including plaintiff, would be placed on modified program status and " will maintain the same program as the Hispanic/Mexican population as per the Program Status Report" until further notice. [Ex. A3].

Prison staff members also told defendants that " White" prisoners associate, affiliate, and hang out with Mexican inmates in the dayroom or yard and use the same showers, but no " White" prisoners were locked down or placed on modified program status due to the incident involving the Mexican inmates. [Complaint, Part II at 7].

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On January 12, 2010, plaintiff filed a group inmate appeal contending that he was being placed on lockdown and discriminated against on the basis of his race and Spanish surname. Prison officials denied plaintiff's appeal on the ground that plaintiff was placed on modified program status because he associated or lived with Mexican inmates. [Complaint, Part II at 7-10 & Ex. B1-B21].

On or about February 6, 2010, Mexican inmates in Facility D committed a battery on another Hispanic prisoner, resulting in serious injury. Mexican inmates and any inmates that lived or affiliated with them were placed on lockdown. [Complaint, Part II at 7-8].

On February 7, 2010, defendant Palmer submitted a memorandum to Payton identifying inmates classified as " Black" or " Other," including plaintiff, who were placed on modified program status until further notice because prison staff had determined that they were associated, affiliated, or lived with Mexican inmates. [Complaint, Part II at 8 & Ex. A6].

Defendants relied on " false" and " misleading" information to place plaintiff on modified program status and failed to interview staff from plaintiff's housing unit and other witnesses who would have stated that plaintiff does not associate or live with Mexican inmates. [Complaint, Part II at 6, 8-9]. Defendants do not place " Other" inmates who associate with African-American inmates on modified program status when the African-American general population is on lockdown. [Complaint, Part II at 9].

On February 14, 2010, plaintiff's mother, who was elderly and dying, came to visit him with other family members. ISP visiting staff told his mother that plaintiff could not have visits because he is a Mexican inmate. [Complaint, Part II at 10]. During plaintiff's placement on modified program status with the Mexican inmates, he endured extended denials of his privileges or rights with respect to movement, feeding, ducats, visiting, work, showering, medical care, recreation, packages, phone calls, religious services, and use of, or access to, the library, dayroom, and canteen. [Complaint, Part II at 10].

A third incident involving Mexican inmates occurred in Facility " D" on or about October 7, 2010. However, no inmates were placed on modified program status as a result of this incident. [Complaint, Part II at 10].

On or about October 10, 2010, a fourth incident occurred in Facility " D" involving eight Mexican inmates, fighting four against four. A lockdown occurred affecting Mexican inmates and certain other inmates, but plaintiff was allowed to continue his normal program until October 12, 2010, when Wiggins approached him in the exercise yard and ordered plaintiff to return to his housing unit and lock up. Plaintiff began to explain that he was an " Other," but Wiggins said, " You got to lock up because you look like a Mexican and your name is Spanish." Plaintiff returned to his cell and was placed on modified program status. [Complaint, Part II at 11].

Plaintiff submitted his group inmate appeal to defendant Cate for director's (third) level of review on or about April 13, 2010. [Complaint, Part II at 10 & Ex. B-3].

Plaintiff alleges that defendants intentionally discriminated against him on the basis of his race, without legitimate penological justification, in violation of his Fourteenth Amendment equal protection and due process rights. Plaintiff further alleges that defendants' conduct violated his Eighth Amendment right to be free from cruel and unusual punishment, and that defendants violated the Racketeer Influenced and Corrupt Organizations

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(" RICO" ) Act. [Complaint, Part I at 5; Complaint, Part II at 12-15].

Standard governing dismissal

A complaint may be dismissed for failure to state a claim upon which relief can be granted. See Fed.R.Civ.P. 12(b)(6). Where, as here, a prisoner is proceeding in forma pauperis, or seeks relief against a governmental entity or officer or employee of a governmental entity, the court " shall" dismiss the complaint or any portion thereof at any time if it is frivolous, 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), 1915A(b); 42 U.S.C. § 1997e(c)(1).

To survive dismissal, " a complaint must contain sufficient factual matter, accepted as true, to ‘ state a claim to relief that is plausible on its face.’ A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). " Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (internal quotation marks and ellipsis omitted).

To determine whether a complaint states a claim sufficient to withstand dismissal, a court considers the contents of the complaint and its attached exhibits, documents incorporated into the complaint by reference, and matters properly subject to judicial notice. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322-323, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007); Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir.2001). The court must accept as true all factual allegations contained in the complaint. That principle, however, " is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. A pro se complaint, however, is " to be liberally construed," and " however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 93-94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam) (citing Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)); see Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir.2010) (stating that " we continue to construe pro se filings liberally when evaluating them under Iqbal, " and " particularly in civil rights cases, ... to afford the [plaintiff] the benefit of any doubt" ) (quoting Bretz v. Kelman, 773 F.2d 1026, 1027 n. 1 (9th Cir.1985) (en banc)).

Abuse of judicial process

Defendants contend that plaintiff's complaint should be dismissed because it is malicious and frivolous, and that plaintiff abused the judicial process by filing it in forma pauperis. [Defendants' Notice of Motion and Motion to Dismiss (" Defendants' MTD" ) at 6-7].

In a civil action in which a prisoner is proceeding in forma pauperis, or seeks relief against a governmental entity or officer or employee of a governmental entity, the court " shall" dismiss the complaint or any portion thereof at any time if it is frivolous, 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), 1915A(b); 42 U.S.C. § 1997e(c)(1). A claim is frivolous if it has

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little weight or importance or has no basis in law or fact. A case is malicious if it was filed with the " intention or desire to harm another." Andrews v. King, 398 F.3d 1113, 1121 (9th Cir.2005).

The elements of an abuse of process claim are that " the defendant (1) contemplated an ulterior motive in using the process; and (2) committed a willful act in the use of the process not proper in the regular conduct of the proceedings. In other words, abuse of process requires an act outside the purpose of the process." Blaxland v. Commonwealth Director of Public Prosecutions, 323 F.3d 1198, 1204 (9th Cir.2003) (quoting Brown v. Kennard, 94 Cal.App.4th 40, 44, 113 Cal.Rptr.2d 891 (2001)).

Defendants argue that this action is frivolous, malicious, and an abuse of process because it is plaintiff's third civil rights action brought pro se and in forma pauperis on the same issues. [ See Defendants' MTD 6-7]. In support of that argument, defendants requested judicial notice of two prior cases they contend were filed by plaintiff: (1) Hernandez v. Ollison, EDCV 06-1010 R(RC), filed in this district on September 19, 2006; and (2) Hernandez v. Marshall, C-94-4296 DLJ, filed in the Northern District of California in 1994. [ See Defendants' Request for Judicial Notice (" Defendants' RJN" ), Exhibits 1 & 2]. Defendants' request for judicial notice was granted with respect to Ollison and denied with respect to Marshall, which was filed not by plaintiff but by a different individual with the same name. [ See Order filed Aug. 22, 2012].

In Ollison , plaintiff alleged that during October 2005 and November 2005, ISP officials violated his First and Fourteenth Amendment rights to freely associate and communicate with fellow inmates without fear of prosecution or discrimination by locking him down for incidents involving Mexican inmates.[3] [ See Defendants' RJN, Ex. 1 at AGO-12]. The district court dismissed Ollison for failure to state a First Amendment freedom of association claim. [Defendants' RJN, Ex. 1 at AGO-30 through AGO-47]. The judgment of dismissal was affirmed by the Ninth Circuit, which declined to " consider [plaintiff's] contentions regarding equal protection and harassment because he did not raise these claims in district court." [ See Defendants' RJN, Ex. 1]. In this action, plaintiff alleges Eighth and Fourteenth Amendment claims, which were not pleaded or litigated in Ollison . Plaintiff has not attempted to plead any First Amendment free association claims in this case. Defendants have neither argued nor shown that the affirmative defenses of claim preclusion or issue preclusion bar plaintiff from proceeding with the claims alleged in this action.[4]

Standing alone, the fact that plaintiff filed a prior section 1983 action against defendants based on similar facts does not establish that this action lacks a legal or factual basis, was filed with the intent to harm defendants, or had an ulterior or improper motive in filing this action. Therefore, defendants' motion to dismiss this action as frivolous, malicious, or an abuse of judicial process should be denied.

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Failure to exhaust prison administrative ...

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