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Manago v. Gonzalez

United States District Court, Ninth Circuit

November 6, 2013

STEWART MANAGO, Plaintiff,
v.
S.F. GONZALEZ, former warden; et al., Defendants.

FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF CASE (Docs. 53 and 50)

SANDRA M. SNYDER, Magistrate Judge.

Defendants Adame, M. Bryant, J. Gentry, J. Gutierrez, K. Sigston, T. Steadman, E. Stelfer, T. Turmezei, and J. Tyree[1] move to dismiss the complaint pursuant to F.R.Civ.P. 12(b) and 12(b)(6), contending that (1) Plaintiff failed to exhaust his administrative remedies, and (2) the complaint fails to allege facts sufficient to state a cause of action against Defendants. Doc. 53. Plaintiff disagrees, maintaining that he has exhausted all administrative remedies. Following review of the record and applicable law, the undersigned concludes that Plaintiff's claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994), and this case must be dismissed.

I. Judicial Notice

Defendants have requested that this Court take judicial notice of:

A. The petition for habeas corpus filed by Plaintiff in Kern County Superior Court on July 22, 2010 (No. HC011932A);
B. Kern County Superior Court's September 22, 2010 order denying Plaintiff's petition for habeas corpus (No. HC011932A);
C. Findings and recommendations in Manago v. Cate (No. 1:11-cv-01172-AWI-BAM), dated October 22, 2012;
D. Order adopting Findings and Recommendations in Manago v. Cate (No. 1:11-cv-01172-AWI-BAM), dated November 21, 2012; and
E. Judgment in in Manago v. Cate (No. 1:11-cv-01172-AWI-BAM), dated November 21, 2012.

A court may take judicial notice of a fact that is "not subject to reasonable dispute because it can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." F.R.Evid. 201(b). Court records in another case are sufficiently reliable for a court to take judicial notice of them. United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). Accordingly, the Court takes judicial notice of the cited records.

II. Factual Background

According to allegations in the amended complaint, CDCR validated Plaintiff as a member of a street gang, the Project Watts Crips ("Crips"), when he was first imprisoned in December 1988. Validation was based on Plaintiff's self-admission, his tattoos, and his use of Crips' written symbols. The validation continued at the various institutions at which he served time in the ensuing years. Plaintiff concedes that he is a member of the Crips and maintains that membership in the Black Guerilla Family ("BGF"), a prison gang, would be both inconsistent with his Crips membership and, because of the enmity between the Crips and the BGF, impossible.

In 2003, while an inmate at CSP-Sacramento, Plaintiff reported the misconduct of a prison guard, Mary Brockett, who, among other things, sexually assaulted Plaintiff. Plaintiff's allegations were upheld, and Brockett lost her job. Thereafter, Plaintiff experienced multiple instances of retaliation by other prison guards and employees. Plaintiff responded by filing numerous grievances, law suits under 42 U.S.C. ยง 1983, and petitions for writs of habeas corpus.

On October 9, 2009, CDCR moved Plaintiff from CSP-Sacramento to the California Correctional Institute ("CCI") at Tehachapi. Plaintiff alleges that, when Plaintiff arrived at CCI, Defendant Turmezei initiated a pretextual gang investigation as a means of inspecting all of Plaintiff's personal and legal property. Prison officials confiscated as contraband certain reading materials that Plaintiff classifies as "black American history" or "black militant history, " even though Plaintiff had been permitted to possess the materials in Sacramento. Specific items confiscated included newspaper articles, a biography of George Jackson, and a Black Seeds calendar, which Turmezei characterized as ...


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