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Glenn Edwin Clay v. Denise Langford

March 13, 2013

GLENN EDWIN CLAY
PLAINTIFF,
v.
DENISE LANGFORD, LT. SAVALA, CARLOS RAMOS, MARK GOMES, M. HAWTHORNE, SILVIA GARCIA, DEFENDANTS.



The opinion of the court was delivered by: Hon. Gonzalo P. Curiel United States District Judge

ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS AND SUA SPONTE DISMISSING COMPLAINT WITH LEAVE TO AMEND

On December 28, 2012, plaintiff Glenn Clay ("Plaintiff"), proceeding pro se, filed a complaint under 42 U.S.C. § 1983, against defendants D. Langford, G. Savala, C. Ramos, M. Gomes, M. Hawthorne, and S. Garcia ("Defendants"). Plaintiff also filed a motion to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a). Having reviewed Plaintiff's Complaint and Motion to Proceed in Forma Pauperis, and for the reasons that follow, the Court GRANTS Plaintiff's Motion to Proceed in Forma Pauperis but, because Plaintiff's claims are time barred, the Court sua sponte DISMISSES Plaintiff's claims WITH LEAVE TO AMEND.

PLAINTIFF'S ALLEGATIONS

Plaintiff filed suit following events he alleges occurred while incarcerated at R.J. Donovan Correctional Facility ("Donovan") in San Diego, California. (ECF No. 1 at 5.) Plaintiff alleges Defendants, correctional officers at Donovan, violated his rights to due process, conspired against him, committed racial discrimination, violated his freedom of association, freedom of speech, freedom from cruel and unusual punishment, deprived him of his rights, violated his right to equal protection, violated federal civil procedure, committed negligence, and discriminated him. (Id. at 4, 10, 16, 28, 41, 54.) Plaintiff contends these violations occurred when the Defendants improperly terminated him as the "Lead Man" forklift operator at the Donovan "Minimum Support Warehouse" and by refusing to reinstate him. (Id. 4-8.)

Plaintiff was employed as a forklift "Lead Man" and worked under the direct supervision of defendant Lankford. (Id. at 4). Plaintiff argues that before Lankford became the supervisor of the support warehouse, the previous supervisor advised Plaintiff that Lankford was looking to terminate Plaintiff at the first opportunity. (Id. at

94.) On March 27, 2007, while lowering a pallet in the warehouse with his forklift, Plaintiff struck a water pipe which subsequently caused it to break and leak. (Id. at 103, 129.) Plaintiff claims that, following the accident, Lankford prepared a Rules Violation Report for the destruction of state property pursuant to Section 3011 of the California Cod of Regulations, due to unsafe operation of equipment. (Id. at 4, 103.) In the Rules Violation Report, Lankford recommended that Plaintiff be "immediately removed from his present job assignment." (Id. at 75.) Having been terminated from his job at the support warehouse, Plaintiff took another job as a forklift operator in another section of the warehouse. (Id. at 21.)

Plaintiff proceeded to submit an inmate grievance against Lankford on April 3, 2007, for improperly terminating Plaintiff as a forklift operator. (Id. at 69.) The grievance was denied at the informal level on May 15, 2007. (Id.) Plaintiff contends that while his grievances were proceeding, he accepted employment in a different section of the support warehouse to maintain his grade as a forklift worker and to gain work experience. (Id. at 56.)

A rules violation hearing commenced on April 19, 2007, before the Senior Hearing Officer, defendant Savala. (Id. at 75.) This hearing took place while Plaintiff's inmate grievance against Lankford was still under review. (Id. at 69.) Plaintiff argues he appeared at the hearing but it was postponed due to witness unavailability. (Id. at 10.) When the hearing finally occurred, Plaintiff maintains that his witnesses appeared telephonically and that Savala relayed Plaintiff's questions to the witnesses. (Id.)

Defendant Gomes, the warehouse manager, and "Mr. Manning," a Material and Store Supervisor II in the laundry department, testified on Plaintiff's behalf. (Id. at 11,

75.) Plaintiff asked Gomes, through the hearing officer, if Gomes had ever informed the inmates and staff in the warehouse about a department policy that workers would not be fired for accidents if they informed the staff of the accident. (Id. at 11.) Gomes replied, "No." (Id.) Gomes further testified that he had no knowledge of prior complaints or incidents involving the Plaintiff operating the forklift unsafely. (Id. at 75-76.) Finally, Gomes stated that the rules violation did not warrant Clay's termination as a forklift operator. (Id.).

Plaintiff next states that his supervisor, Manning, confirmed he was supervising Plaintiff at the time of the accident, that it was indeed an accident, and that Manning had never heard of Plaintiff operating the forklift unsafely. (Id.) Plaintiff maintains that, in light of the testimony by Manning and Gomes, and in "accordance with progressive discipline," the senior hearing officer reduced Plaintiff's offense from a CDCR-115 Rules Violation Report to a less-serious CDCR-128A general chrono report. (Id.) Savala determined that Plaintiff should be reinstated to his former position. (Id. at 5.) Despite this ruling, Plaintiff argues that Lankford prevented Plaintiff from resuming his duties as "Lead Man" forklift operator. (Id. at 6.)

On June 18, 2007, Lankford submitted a general chrono report requesting that Plaintiff be removed from his job assignment in the clothing department at the minimum support facility and reassigned elsewhere. (Id. at 100.) Lankford indicated that she filed the report out of concern for her safety because Clay frequently entered her area since his reassignment, glared at her, and made inflammatory comments. (Id.) According to Lankford, Plaintiff's conduct created a hostile and inappropriate work environment for her. (Id.) Plaintiff contends that Lankford's chrono resulted in his "permanent removal from the support warehouse." (Id. at 6.) After submitting the chrono, Lankford hired a Caucasian inmate to accupy Plaintiff's former position. (Id.) Plaintiff maintains that Lankford discriminated on the basis of race because she ultimately hired an "all White" work crew. (Id. at 7.)

Plaintiff appealed his grievance to the first formal level of review on June 19, 2007. (Id. at 69.) Plaintiff's first level response appeal was denied on August 15, 2007, and, on August 20, 2007, defendant Hawthorne explained that the appeal was denied because of concerns regarding staff safety. (Id. at 69, 86.) On October 12, 2007, defendant Garcia denied Plaintiff's appeal at the second level. (Id. at 103-104.) Garcia emphasized the monetary loss to the state that was caused by Plaintiff's accident and his unsafe operation of the forklift despite prior counseling. (Id.) On December 5, 2007, Plaintiff's subsequent appeal to the director's level of review was screened out and returned to Plaintiff. (Id. at 120.)

DISCUSSION

I. Motion to Proceed In Forma Pauperis

Plaintiff moves to proceed IFP under 28 U.S.C. § 1915(a). Section 1915(a) allows a court to authorize a lawsuit's commencement without payment of the filing fee if the plaintiff submits an affidavit demonstrating his or her inability to pay the filing fee. 28 U.S.C. § 1915(a). Such affidavit must include a complete statement of the plaintiff's assets. Id.

Plaintiff has submitted an affidavit in support of his IFP motion indicating that he is currently unemployed and receives $234.00 per month from her sister. Plaintiff declares that he has no checking, savings, IRA, or money market accounts. Plaintiff declares he does not own a vehicle, real estate, stocks, bonds, securities, or other valuable property. Plaintiff declares he has no dependents nor any outstanding debts. Plaintiff does not, however, state whether he currently pays rent or not. Based on the information Plaintiff has provided, this Court concludes ...


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