United States District Court, C.D. California
ORDER DISMISSING SECOND AMENDED COMPLAINT WITH LEAVE
HONORABLE KENLY KIYA KATO United States Magistrate Judge
Gregory Franklin (“Plaintiff”), proceeding
pro se and in forma pauperis, has filed a
Second Amended Complaint (“SAC”) pursuant to 42
U.S.C. § 1983 (“Section 1983”) against
defendants B. Bojoroquez, C. Wofford, A. H. Martinez, B.
Harris, L. Rowe, and Neal (“Defendants”).
Defendants filed a Motion to Dismiss (“Motion”).
As discussed below, the Court dismisses the SAC with leave to
October 11, 2015, Plaintiff constructively
filed a civil rights complaint pursuant to
Section 1983 (“Complaint”). See ECF
Docket No. (“dkt.”) 1, Compl. at 1. The Complaint
sued various defendants in both their individual and official
capacities. Id. at 3-4, 6-7. On November 20, 2015,
the Court found the Complaint failed to state any official
capacity claims and dismissed the Complaint with leave to
amend. Dkt. 10.
December 7, 2015, Plaintiff constructively filed a First
Amended Complaint (“FAC”). See dkt. 11,
FAC at 25. Plaintiff again sued various defendants in both
their individual and official capacities. Id. at
3-7. On January 7, 2016, the Court found the FAC failed to
state any official capacity claims and dismissed the FAC with
leave to amend. Dkt. 12.
January 28, 2016, Plaintiff constructively filed the
See dkt. 13, SAC at 16. Plaintiff again sued
Defendants B. Harris, L. Rowe, A.H. Martinez, C. Wofford, B.
Bojoroquez, and Neal in their individual and official
capacities. Id. at 3-7. In the SAC, Plaintiff
alleges (1) defendants Rowe and Harris violated his First and
Fourteenth Amendment right to access the courts; (2)
defendants Rowe, Bojoroquez, Martinez, Wofford, Harris, and
Neal violated his First Amendment right to speech by
retaliating against Plaintiff for filing lawsuits; and (3)
defendant Harris violated his Eighth Amendment right to be
free from cruel and unusual punishment. See SAC.
April 8, 2016, the Court dismissed Plaintiff's official
capacity claims with prejudice for failure to state a claim.
Dkts. 16, 18. On April 14, 2016, the Court ordered service of
the summons and SAC with the remaining claims on Defendants.
September 12, 2016, Defendants filed the instant Motion with
a Request for Judicial Notice
(“RJN”) of the dockets of the cases Plaintiff
refers to in his SAC. Dkt. 38. In the Motion, Defendants
argue (1) Plaintiff's SAC fails to comply with Federal
Rule of Civil Procedure 8(a)(2); (2) Plaintiff fails to state
a First and Fourteenth Amendment access to courts claim
against defendants Rowe and Harris; (3) Plaintiff fails to
state a First Amendment retaliation claim against defendants
Rowe, Bojoroquez, Martinez, Wofford, Harris, and Neal; (3)
Plaintiff fails to state an Eighth Amendment cruel and
unusual punishment claim against defendant Harris; (4)
Defendants are entitled to qualified immunity; and (5)
Plaintiff has improperly joined defendants in violation of
Federal Rule of Civil Procedure 18. Id.
November 15, 2016, Plaintiff constructively filed an
Opposition. Dkt. 44. On December 7, 2016, Defendants filed a
Reply. Dkt. 45. Thus, this matter stands
submitted and ready for decision.
ALLEGATIONS IN THE SAC A. VISITING
Calipatria State Prison Visits from October 2011 to January
alleges defendants Neal and Bojoroquez “each made a
statement about [P]laintiff['s] pending lawsuit to
[P]laintiff, ” and “harras[ed] Plaintiff['s]
visitor to retaliate against Plaintiff for bring an [sic]
complaint against numerous fellow employees” and in an
attempt “to get Plaintiff to dropped [sic] the
lawsuit.” SAC at 16. Specifically, Plaintiff alleges
“in October 2011, ” defendant Neal harassed one
of Plaintiff's visitors, Sonia Azevedo. Id. at
12. Plaintiff alleges “the rules and regulations state
[a visitor's] dress can't be more than 2 inches above
the knee, ” Azevedo wore a knee-length dress when she
visited Plaintiff, and “several other women that had
dresses two inches above the knee were allowed to enter
without changing their dresses.” Id. at 12-13.
Plaintiff alleges defendant Neal “made Sonia Azevedo
change her clothes, stating her dress was too short but the
dress was not.” Id. at 12.
addition, Plaintiff alleges defendant Bojoroquez harassed
Azevedo when she visited Plaintiff on December 10, 2011.
Id. at 13. Plaintiff alleges “the institution
requirement was [visitors'] strap[s] ha[d] to be 2 inches
wide or more” and Azevedo wore a jacket with “a
shirt underneath where the straps were 4 inches wide.”
Id. Plaintiff alleges defendant Bojoroquez
“insisted the straps on Ms. Azevedo['s] shirt were
too narrow, ” and despite other officers stating
Azevedo's “shirt was within regulation, ”
defendant Bojoroquez told Azevedo she had to wear her jacket
or “her visiting w[ould] be terminated.”
Plaintiff alleges defendant Bojoroquez fabricated a rule
violation when Azevedo visited Plaintiff on January 28, 2012.
Id. at 13-14. Plaintiff alleges at the end of
Azevedo's visit, Plaintiff hugged and kissed her
“as the California Department of Correction statute
allowed, ” but defendant Bojoroquez accused Plaintiff
of excessive touching, separately detained them, and stated
their visit would be suspended. Id. at 13. Plaintiff
alleges “when [P]laintiff objected, Officer B.
Borjorquez made a comment about [P]laintiff['s] lawsuit
and went and got his supervisor R. Sutton, he suspended
[P]laintiff and Ms. Azevedo['s] visiting for the next
day.” Id. at 13-14.
CSP-LAC Visit on February 25, 2012
alleges “suddenly [P]laintiff was transferred to
California State Prison Los Angeles County on February 12,
2012, ” where his visitors also endured obstacles.
Id. Specifically, Plaintiff alleges Azevedo visited
Plaintiff on February 25, 2012 and despite obtaining approval
for visiting five months prior, “before she was allowed
to enter into visiting she was forced to fill-out an unlawful
visiting form.” Id. at 19-20. Plaintiff
alleges Azevedo was denied visiting approval, Plaintiff filed
a grievance about the denial, and defendant Wofford
“answer[ed] [P]laintiff['s] grievance he/she upheld
and enforce[d] the legal policy.” Id. at 20.
alleges on March 6, 2012, defendant Martinez retaliated
against him by holding an unfair disciplinary hearing
regarding Azevedo's January 28, 2012 visit. Id.
at 14. Plaintiff alleges, at the hearing, defendant Martinez
“mention[ed] [P]laintiff['s] lawsuit, ”
“refuse[d] to get the video of that day (1-28-12), and
refuse[d] to call Sonia Azevedo and other witnesses.”
alleges on September 11, 2012, he tried to send mail to his
attorney but “between the officer picking up the mail
and mail being deliver[ed] to the mail room, the mail was
discarded.” Id. at 6. Plaintiff alleges he
filed a “grievance to find out what official was
responsible for discarding his legal mail, [and] B. Harris
(inmate appeal coordinator) screen[ed]-out Plaintiff['s]
inmate grievance.” Id.
addition, Plaintiff alleges on January 21, 2013, his mother
sent him writing tablets and stamps but he did not receive
them until February 15, 2013. Id. at 6-7. Plaintiff
alleges he submitted a grievance “to discover who the
officials were for the delayed or los[s] of his mail,
” but defendant Harris “would not process the
appeal.” Id. at 7.
Plaintiff alleges on May 5, 2013, he sent mail to a process
server, but the process server never received them.
Id. Plaintiff alleges he “tried to find out
what officials were responsible through a request to the
mail room and inmate grievance, ” but defendant Harris
“did not process the inmate grievance.”
Plaintiff alleges on September 28, 2013, Valerie Rowlett sent
him writing tablets but he did not receive them until
November 2013. Id. Plaintiff alleges he sent an
“inmate request inquiring about the tablets, no-one
ever responded to the request” and he filed a grievance
“to obtain the names of the officials who w[ere]
withholding his mail but B. Harris screen[ed]-out the inmate
grievance and would not process the inmate grievance.”
Id. at 7-8.
also alleges defendant Harris “supported or upheld an
unlawful action or decision of a protected constitutional
liberty, ” impeded Plaintiff's access to the
courts, obstructed his mail, and “supported or upheld
his subordinates['] actions or decisions that
continuously violated [P]laintiff['s] protected
constitutional rights to cause unnecessary pain and
suffering” to “stop [P]laintiff['s]
lawsuits.” Id. at 8.
LAW LIBRARY ACCESS AND CONDITIONS
alleges from February 2012 to March 2012, he missed deadlines
in two pending lawsuits because the CSP-LAC law library was
closed or had inadequate resources. Id. at 9.
Plaintiff alleges “the law library was closed February
and March 2012” and he asked “for an extension
without notification, because the only document [P]laintiff
receive[d] during that period was from Senior [L]aw
[L]ibra[r]ian R. Rowe that was the law library was open
Monday and [T]uesday, which was untrue.” Id.
at 9-10. As to one of his lawsuits, Plaintiff alleges:
due to lack of access to the law library and lack of legal
material, many of [P]laintiff's motions did not have
certificate of service and memorand[a] [of] points and
authorities, [P]laintiff had to request (5) five extensions
(without no institutional memorandum), on the fifth extension
the court would not grant the extension and [P]laintiff's
complaint was dismissed with prejudice. Id. at 15.
In addition, Plaintiff alleges defendant Rowe “made
sure that he impede[d] [P]laintiff['s] access to the
court by not providing with adequate access to the law
library until his complaint was dismissed.”
Id. at 11.
Plaintiff alleges in April 2012, he was allowed in the
library “once that month and during that year
[P]laintiff went approximately 4 hours a month.”
Id. at 10. Plaintiff alleges:
when the library was open there w[ere] no case law books,
state and federal habeas practice and procedure, California
Penal Code and United States Code annotated were outdated, no
paging was provided and there w[ere] only five computers for
no less than 12 inmates used within 2 hours. The computers
had no print out so you have to read [and] write down the
material that was relevant usually within 30 minutes (because
you have to share the ...