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Franklin v. Soto

United States District Court, C.D. California

February 9, 2017

SOTO, ET AL., Defendants.


          HONORABLE KENLY KIYA KATO United States Magistrate Judge



         Plaintiff 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 amend.



         On October 11, 2015, Plaintiff constructively filed[1] 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.

         On 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.

         On January 28, 2016, Plaintiff constructively filed the SAC[2]. See dkt. 13, SAC at 16. Plaintiff again sued Defendants B. Harris, L. Rowe, A.H. Martinez, C. Wofford, B. Bojoroquez, and Neal[3] 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.

         On 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. Dkt. 20.

         On September 12, 2016, Defendants filed the instant Motion with a Request for Judicial Notice (“RJN”)[4] 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.

         On November 15, 2016, Plaintiff constructively filed an Opposition. Dkt. 44. On December 7, 2016, Defendants filed a Reply[5]. Dkt. 45. Thus, this matter stands submitted and ready for decision.


         (1) Calipatria State Prison Visits from October 2011 to January 28, 2012

         Plaintiff 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.

         In 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.” Id.

         Further, 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.

         (2) CSP-LAC Visit on February 25, 2012

         Plaintiff 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.


         Plaintiff 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.” Id.


         Plaintiff 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.

         In 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 official[]s were for the delayed or los[s] of his mail, ” but defendant Harris “would not process the appeal.” Id. at 7.

         Further, 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 official[]s were responsible through a request to the mail room and inmate grievance, ” but defendant Harris “did not process the inmate grievance.” Id.

         Moreover, 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 official[]s 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.

         Plaintiff 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.


         Plaintiff 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.

         Further, 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 ...

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