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Perez v. Prelip

United States District Court, N.D. California

April 2, 2014

JESSE PEREZ, Plaintiff,
v.
J. PRELIP, Senior Special Agent and Officers A. GATES, S. BURRIS, D. GONGORA, E. HEALY and G. PIMENTEL, Defendants.

ORDER OF SERVICE

CLAUDIA WILKEN, District Judge.

Plaintiff Jesse Perez, an inmate at Pelican Bay State Prison (PBSP), filed a pro se civil rights action pursuant to 42 U.S.C. § 1983 alleging that staff at PBSP violated his constitutional rights. Plaintiff has also moved for leave to proceed in forma pauperis (IFP). The Court finds that Plaintiff's IFP application is complete and grants it in a separate Order. The Court addresses Plaintiff's claims.

DISCUSSION

I. Standard of Review

A federal court must conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't , 901 F.2d 696, 699 (9th Cir. 1988).

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins , 487 U.S. 42, 48 (1988).

Liability may be imposed on an individual defendant under 42 U.S.C. § 1983 if the plaintiff can show that the defendant's actions both actually and proximately caused the deprivation of a federally protected right. Lemire v. Cal. Dep't Corrections & Rehabilitation , 756 F.3d 1062, 1074 (9th Cir. 2013); Leer v. Murphy , 844 F.2d 628, 634 (9th Cir. 1988); Harris v. City of Roseburg , 664 F.2d 1121, 1125 (9th Cir. 1981). A person deprives another of a constitutional right within the meaning of § 1983 if he does an affirmative act, participates in another's affirmative act or omits to perform an act which he is legally required to do, that causes the deprivation of which the plaintiff complains. Leer , 844 F.2d at 633. Under no circumstances is there respondeat superior liability under § 1983. Lemire , 756 F.3d at 1074. Or, in layman's terms, under no circumstances is there liability under § 1983 solely because one is responsible for the actions or omissions of another. Taylor v. List , 880 F.2d 1040, 1045 (9th Cir. 1989); Ybarra v. Reno Thunderbird Mobile Home Village , 723 F.2d 675, 680-81 (9th Cir. 1984).

II. Plaintiff's Allegations

Plaintiff alleges the following. In 2006, Plaintiff filed a lawsuit in the Eastern District of California against multiple Institutional Gang Investigators (IGI) and other employees of the California Department of Corrections and Rehabilitation (CDCR)[1] for due process violations arising from the defendants' unconstitutional validation, segregation and placement of Plaintiff in the Secured Housing Unit (SHU) because he was validated as a gang associate. The district court denied the defendants' motion for summary judgment based on qualified immunity and, on October 15, 2010, the defendants appealed this decision. The Ninth Circuit appointed counsel to represent Plaintiff. On October 2, 2012, Plaintiff's attorneys informed him that the defendants expressed an interest in entering into settlement negotiations. Plaintiff's settlement terms included payment of damages and a new initial validation procedure for Plaintiff that followed the new regulations. In return, Plaintiff would dismiss his lawsuit. Plaintiff agreed to negotiate with the defendants. On October 9, 2012, the Ninth Circuit granted the parties' joint motion to postpone oral argument pending settlement negotiations.

On October 10, 2012, the day after the Ninth Circuit granted a continuance, Defendants Officers Gates, Gongora, Healy and Pimentel ordered Plaintiff to come to the front of his cell and "strip down." Officer Gates told Plaintiff they were conducting a cell search. After Officer Gates performed a visual inspection of Plaintiff while he was naked, he ordered Plaintiff to get dressed in his boxer shorts and shower-shoes only. Officer Gates placed Plaintiff in handcuffs and then Officers Gates, Gongora, Healy and Pimentel escorted him to a short distance from a holding cell and took photographs of Plaintiff's face and body. The officers then placed Plaintiff in the same holding cell as his cellmate, inmate Guerrero. Inmate Guerrero told Plaintiff that Officer Healy had asked him if he was into filing lawsuits, too. Inmate Guerrero told Officer Healy, "No, " and Officer Healy said, "Good for you, keep it that way."

After approximately twenty to twenty-five minutes, Officers Gates and Pimentel returned to the holding cell and ordered Plaintiff and inmate Guerrero to cuff up. Plaintiff told Officer Gates that he needed his property and paperwork because his lawsuit was still pending. Officer Gates replied, "Oh yeah, about that. You might've been able to collect from us but get comfortable because we're going to make sure you stay here where you belong and as for your property, don't worry, we'll get it to you by tomorrow or so."

When Plaintiff and inmate Guerrero returned to their cell, they found it completely trashed and their books, papers, folders, envelops, and other items were missing. Plaintiff found a cell search receipt signed by Officers Pimentel, Gates and Gongora indicating that Plaintiff's paperwork was confiscated for review by IGI. The following day, Officer Pimentel returned some of Plaintiff's property along with a cell search receipt which stated that two address books, twelve personal photographs, and three pages of addresses were confiscated. Plaintiff's legal files and records were disorganized and missing pages.

On October 11, 2012, the CDCR issued a memorandum setting forth its new procedures for validating gang members. The new procedures provide that gang associates would no longer be considered for administrative placement into the SHU based upon their validation to a gang, unless there was also disciplinary behavior.

On October 21, 2012, Plaintiff was issued a rules violation report (RVR), authorized by Officer Gates, for willfully resisting and obstructing peace officers. Officer Gates falsified this report. Plaintiff plead not guilty at his RVR hearing. The Senior Hearing Officer agreed with Plaintiff, found Plaintiff not guilty and dismissed the RVR.

On November 28, 2012, Plaintiff learned that Defendant Prelip had contacted Defendants to set in motion the validation process. This process was purportedly required by the settlement of the Eastern District ...


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