United States District Court, S.D. California
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT [ECF Doc. No. 20]
ROGER T. BENITEZ, District Judge.
Danny Montana Guerra ("Plaintiff"), a prisoner currently incarcerated at Ironwood State Prison ("ISP"), is proceeding in pro se in this civil action, which he commenced with a Complaint first filed on September 18, 2012,  pursuant to 42 U.S.C. § 1983, while he was incarcerated at Calipatria State Prison ("CAL"). See Compl. (ECF Doc. No. 1).
I. Procedural History
On January 1, 2013, the Court granted Plaintiff leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a), but sua sponte dismissed his Complaint pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). (ECF Doc. No. 4). Specifically, the Court found Plaintiff's pleading failed to comply with Federal Rule of Civil Procedure 8, contained claims of alleged wrongdoing dating back to 2001 and 2005 which were barred by the statute of limitations, and failed to state a claim for either retaliation or conspiracy. See id. at 4-7. Plaintiff was provided a opportunity to amend, however, and after requesting and receiving two separate extensions of time in which to file a response, (ECF Doc. Nos. 6-9), he filed his First Amended Complaint ("FAC") on February 22, 2013 (ECF Doc. No. 11).
The Court then screened Plaintiff's FAC pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). See Aug. 20, 2013 Order (ECF Doc. No. 12). Plaintiff's allegations that he was denied a clerical job in 2003 at CAL in violation of due process were dismissed for failing to state a claim, and his claims of retaliation against Defendants Moschetti and Dominguez were found to be time-barred. Id. at 3-4, 5. As to Plaintiff's retaliation claims against Defendants Anaya, Builteman, Janda, Duran, Criman, Nava, Miller, McShan, and McNair, however, the Court could not determine whether the claims were time-barred, as it could not "discern from the face" of Plaintiff's FAC when he "had reason to know" his claims against them had accrued, or whether he would be "entitled to tolling." Id. at 5-6. Therefore, the Court concluded Plaintiff's retaliation claims against Anaya, Builteman, Janda, Duran, Criman, Nava, Miller, McShan and McNair were "sufficiently pleaded to survive the sua sponte screening required by 28 U.S.C. § 1915(e)(2) and § 1915A(b)" and directed the U.S. Marshal to effect service of Plaintiff's FAC on his behalf pursuant to 28 U.S.C. § 1915(d) and Federal Rule of Civil Procedure 4(c)(3). Id. at 7-8.
II. Plaintiff's Allegations
In his FAC, Plaintiff alleges to have appeared at his annual unit classification committee ("UCC") hearing on February 23, 2010, where he requested to be "placed on clerical work status." See FAC (ECF Doc. No. 11) at 6; Pl.'s Ex. D, "CDC 128-G UCC Annual Review, " (ECF Doc. No. 11-3) at 9. Defendants Nava and Miller, both members of Plaintiff's February 23, 2010 UCC, denied Plaintiff's request, however, citing "pertinent information contained in [Plaintiff's] central file and based on... past disciplinary behavior" which "yielded his removal from his [previous] clerical assignment." Pl.'s Ex. D.
While Plaintiff's CDC 128-G dated February 23, 2010 does not further describe the disciplinary behavior relied upon to deny Plaintiff's request for a clerical work assignment, Plaintiff alleges Nava and Miller based their decision on "2003 disciplinary charges of theft" which they "knew were dismissed" and a "confidential memorandum dated May 2003 [and] authored by Defendant G.J. Janda which ordered (in part), that [Plaintiff] should be removed from his clerical position due to being a litigation menace towards [CAL] staff and the State of California." FAC (ECF Doc. No. 11) at 6-7. Plaintiff alleges Miller "ordered Nava to keep [Plaintiff] assigned as a porter (janitor)[, ] stating if we can't stop his legal activities, we can at least slow him down, " so that "he won't have resources readily available." Id. at 7.
Sometime in June 2010, Plaintiff alleges Nava became aware of the CDC 602 Inmate/Parolee appeal Plaintiff alleges to have filed challenging his February 23, 2010 UCC hearing, which Plaintiff identifies as Log. No. CAL-D-10-00989. FAC (ECF Doc. No. 11) at 8. Plaintiff claims Nava contacted Appeals Coordinator Edwards and "instructed him to cancel [the] appeal." Id. In addition, Plaintiff claims Defendant Nava "took [him] to a second annual classification committee" hearing on June 4, 2010, during which Plaintiff again requested "clerical reinstatement" to committee members McNair and McShan. Id. at 8-9. Plaintiff claims Nava "attempted to change [the] reasoning, " behind the February 23, 2010 UCC decision not to clear him for consideration of clerical duty, and produced on a document authored by Defendant Moschetti attesting to "disciplinary charges dismissed [in] 2003" and Defendant Janda's "2003 litigation menace memorandum." Id. at 8. Plaintiff alleges that when Captain McNair asked to "see the 2003 charges, " Nava admitted they had been dismissed, but argued his request for clerical reinstatement should continue to be denied because they had been dismissed on a "technicality, " and because Plaintiff "like[d]" going to court "against staff." Id. at 8-9. Plaintiff then claims Nava, McNair, and McShan "agreed to retaliated against [him], " and "authored a committee chrono" again denying his request to be reinstated on clerical duty. Id. at 9. Plaintiff alleges McNair told him "you'll never be a clerk as long as you're in prison" because he "beat the 115 on an appeal technicality, " and that Defendant McShan "nodded in agreement, " stating, "You're done as a clerk." Id.
Plaintiff alleges to have filed an CDC 602 Inmate/Parolee appeal regarding Miller and Nava's February 23, 2010 UCC decision, which he identifies in his FAC as being designated Log. No. "CAL-D-10-00989." FAC (ECF Doc. No. 11) at 8. Plaintiff also attaches an exhibit to his FAC which comprises two CDC 695 "Screening Forms" referring to CDC 602 Inmate Appeal Log. No. CAL-D-10-00989. See FAC, Pl.'s Ex. E, (ECF Doc. No. 11-3) at 11-12. Both these documents indicate CAL-D-10-00989 was "screened out" at the second level of administrative review. Id. First, on July 7, 2010, CAL-D-10-00989 was "returned" to Plaintiff as constituting "an abuse of the appeal process" pursuant to California Code of Regulations § 3084.4, insofar at it could not be "understood or [was] obscured by pointless verbiage or voluminous unrelated documentation" in violation of California Code of Regulations § 3084(c). Plaintiff was asked: "What exactly are you attempting to appeal?, " directed to "address the specific request, " and reminded he was "only allowed one (1) issue per appeal." Id. at 11. When Plaintiff apparently attempted to re-submit CAL-D-10-00989 on July 13, 2010, it was again "screened out" and "not accepted" on grounds that it "duplicate[d] a previous appeal upon which a decision has been rendered or [was] pending" pursuant to California Code of Regulations § 3084.3(c) (2). Id. at 12. This time, Plaintiff was told: "Do not resubmit this appeal." Id. "Fearing appeal sanctions, " Plaintiff alleges to have "complied with the order." FAC (ECF Doc. No. 11) at 8. However, he does not identify, nor attach as exhibits to his FAC, which, if any, any of his other previously decided or pending CDC 602 inmate appeals Log No. CAL-D-10-00989 was determined to duplicate.
Plaintiff further claims that "during the appeals process" and "in approximately September 2010, " during an Olson review of his Central or "C-File, " he "reviewed (for the first time) an array of documents, which were never given to [him] prior to 2010, " and which he claims were "purposely hidden" by staff, "misfiled, " and made to look like appeal exhibits. FAC (ECF Doc. No. 11) at 10.
The documents specified by Plaintiff include the following:
1) a document authored by Defendant Janda, and dated in May 2003, which "orders prison staff Moschetti and Dominguez to remove... [Plaintiff] from his clerical position due to [his] being a litigation menace, " id. at 10-11;
2) a document authored by Defendant Janda, dated June 2003, which "orders [CAL] staff to conceal/misfile adverse action documents related to [Plaintiff's] litigation activities to prevent further litigation by [him]." id. at 11;
3) a document authored by Defendants Anaya and Builteman, dated March 30, 2004, and denying him clerical status "based on [his] prior 2003 dismissed disciplinary charges and... prior legal activities, " id. at 10;
4) a document authored by Defendants Janda, Duran, and Criman, dated January 31, 2006, and denying him clerical status based on his "prior 2003 dismissed disciplinary charges and [his] prior legal activities against [California Department of Corrections and Rehabilitation (CDCR)] staff, " id. at 10, 12-13; and
5) a document authored by Defendant Duran, dated February 1, 2006, and denying him clerical status based on his "2003 dismissed disciplinary charges of a forged medical chrono." Id. at 10.
Plaintiff alleges Defendants Moschetti and Dominguez followed Janda's written order, and in May or June 2003, "filed false disciplinary charges... designed to terminate" and "remove" Plaintiff from his clerk position. Id. at 11 (citing CDC 115 Rules Violation Report "RVR" Log. No. 06-03-D022); see also Pl.'s Ex. B. (ECF Doc. No. 11-2). Plaintiff further alleges to have learned "by way of [the] hidden documents" described above, that Defendants Anaya and Builteman also denied him clerical status during a March 30, 2004 UCC hearing based on Janda's 2003 litigation menace memo and Moschetti's already dismissed 2003 disciplinary charges. Id. at 13.
On an unspecified date in 2005, Plaintiff re-applied for a clerical position, but was again denied "due to past disciplinary history." Id. (citing CDC 115 Log No. 06-03-D022 and 06-03-D022R). Plaintiff appealed, requested an Olson review, and requested that "false information/charges be removed" from his C-file. Id .; see also Pl.'s Ex. C, "CDC 602 Inmate/Parolee Log. No. CAL-D-05-1662, " dated August 29, 2005, (ECF Doc. No. 11-2) at 15. This appeal was granted at the first formal level of review on October 28, 2005, when staff was ordered to remove "a memo dated August 12, 2005, authored by CCI L. Moschetti, which included information regarding a dismissed CDC 115 for having unauthorized supplies in [his] cell, ... caus[ing] the loss of [his] clerk position, " and to "generate a 128B documenting the dismissal of the CDC 115." See Pl.'s Ex. C (ECF Doc. No. 11-3) at 1-2. Plaintiff claims to have been "satisfied" with this response, and "believed the dismissed 2003 disciplinary charges" and Moschetti's memorandum were "removed from his file as promised." FAC (ECF Doc. No. 11-1) at 1.
He further asserts he was "unaware" of the continued existence and "secretive usage" of the dismissed CDC 115 RVR Log. No. 06-03-D022 and Moschetti's memorandum until Defendants Nava, Miller, McNair, McShan and Janda "used them against [him] in 2010 and 2011 respectively." Id.
Plaintiff concludes that Defendants Dominguez and Moschetti violated his right to due process and retaliated against him for exercising his First Amendment right to file a civil action and grievances by filing the initial "false" disciplinary charges against him in May or June 2003 which resulted in his being "terminated as a clerk, " and which were ultimately dismissed via Plaintiff's CDC 602 Inmate/Parolee Appeal Log No. 06-03-D022R on January 27, 2004. See FAC (ECF Doc. No. 11-1) at 3-4; Pl.'s Ex. B (ECF Doc. No. 11-2) at 5-13. He further asserts that Defendants Nava, Miller, Janda, Duran, Criman, Anaya, Builteman, McNair, and McShan did the same by "maintaining" or continuing to rely on those "false" disciplinary charges in order to "block" his re-classification as a clerk during subsequent UCC hearings held in March 2004, January 2006, February 2010, and June 2010. See FAC (ECF Doc. No. 11) at 6-13, (ECF Doc. No. 11-1) at 4-5.
Plaintiff seeks declaratory relief and injunctive relief preventing CDCR and CAL personnel from retaliating against him, an order "reinstating [him] to his previous skill level I clerical status, " placement on the "clerical worker hiring list, " the "immediate expungement of the dismissed disciplinary charges, derogatory and false information, and any and all related documents making reference to... the dismissed disciplinary charges, " and an order "allowing [him] physical inspection of [his] confidential, institutional, and [CDCR] records and archives to verify full compliance." See FAC (ECF Doc. No. 11-1) at 7-8. ...