United States District Court, S.D. California
GREGORY L. FLETCHER C-41111, Plaintiff,
C/O QUIN; C/O LOPEZ; SERGEANT STRICLAND; C/O ROMERO; C/O GALVAN; C/O GRISSON; C/O SORRANNO; CAPTAIN SANCHEZ, Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION: [DKT. NO.
25] (1) GRANTING DEFENDANTS' MOTION TO DISMISS; [DKT. NO.
22] (2) EXTENDING THE TIME TO EFFECT SERVICE UNDER FED R.
CIV. P. 4(M)
Gonzalo P. Curiel United States District Judge
Gregory Fletcher, an inmate proceeding pro se and
in forma pauperis, filed this civil rights action
pursuant to 42 U.S.C. § 1983. Defendants G. Galvan
(“Galvan”) and F. Quinn (“Quinn”) filed
a Motion to Dismiss under Fed.R.Civ.P.
12(b)(6). Plaintiff did not file an Opposition.
Pursuant to 28 U.S.C. § 636(b)(1), United States
Magistrate Judge Nita L. Stormes filed a Report and
Recommendation granting Defendants' motion to dismiss
with leave to amend and granting Plaintiff an extension of
time to effect service. Neither party filed an objection to
the Report and Recommendation.
on the reasoning below, the Court ADOPTS the Magistrate
Judge's Report and Recommendation.
September 24, 2015, Plaintiff filed a complaint against a
number of prison officials employed at the Richard J. Donovan
Correctional Facility (“RJD”) in San Diego,
California. Dkt. No. 1. On October 26, 2015, the Court
dismissed the complaint without prejudice for failure to pay
filing fees. Dkt. No. 4. On December 8, 2015, Plaintiff filed
a first amended complaint (“FAC”), and on
December 28, 2015, Plaintiff filed a motion to proceed in
forma pauperis. Dkt. No. 6 & 8. The Court granted
Plaintiff's motion to proceed in forma pauperis
and directed the U.S. Marshal to effect service on
Plaintiff's behalf. Dkt. No. 11.
alleges that Defendants violated Plaintiff's (1) Eighth
Amendment right to be free from cruel and unusual punishment
and (2) First Amendment rights to freedom of association,
free speech, and freedom of religion. FAC, Dkt. No. 6. On
June 20, 2016, Defendants filed a motion to dismiss
Defendants Galvan and Quinn. Dkt. No. 22. Plaintiff filed no
opposition. On July 7, 2016, Magistrate Judge Stormes filed a
Report and Recommendation granting Defendants' motion
with leave to amend. Report and Recommendation (R&R),
Dkt. No. 25. The Report and Recommendation also granted
Plaintiff an extension of time to effect service as a number
of the individuals identified as defendants have yet to
reviewing a Magistrate Judge's Report and Recommendation,
“[a] judge of the court shall make a de novo
determination of those portions of the report . . . to which
objection is made.” 28 U.S.C. § 636(b)(1); see
also Fed. R. Civ. P. 72(b); United States v.
Remsing, 874 F.2d 614, 617 (9th Cir. 1989). However, in
the absence of timely objection, “the court need only
satisfy itself that there is no clear error on the face of
the record in order to accept the recommendation.”
Fed.R.Civ.P. 72 advisory committee's notes. When no
objections are filed, a district court may assume the
correctness of the magistrate judge's findings and
recommendations, and decide the motion on the applicable law.
Campbell v. U.S. Dist. Court, 501 F.2d 196, 206 (9th
Cir. 1974); Johnson v. Nelson, 142 F.Supp.2d 1215,
1217 (S.D. Cal. 2001).
met with a woman from the Attorney General's Office on
September 9, 2014. FAC, Dkt. No. 6 at 3. Later that day an
unidentified inmate told Officer Romero, a correctional
officer, that Plaintiff had spoken to the Attorney
General's Office about the inmate and Romero.
Id. At an undisclosed later time, Romero pushed
Plaintiff in his chest seven to eight times. Id.
Thereafter, when Plaintiff returned to his cell, he noticed
that his space was “tore up.” Id. He
attempted to leave his unit and to speak with a superior
about what had happened, but Officer Grisson, also a
correctional officer, blocked him from doing so. Id.
At that point, Officer Romero shoved Plaintiff back into his
cell and punched Plaintiff in his chest. Id. Romero
punched Plaintiff so hard that he re-broke his thumb trying
to catch his fall. Id. Plaintiff then asked Officers
Grisson and Romero for medical help, but they refused.
Id. (“I told c/o Romero and c/o Grisson that I
need medical help, they told me, that they didn't care if
I died and that I will not get no help”). The officers
then proceeded to tell Plaintiff that he did not know who he
was “messing” with and that “no-one [sic]
mess with him, Grisson, Galvan, Sorreano.” Id.
According to Plaintiff, all of these officers were part of
the “Greenwall Officer Mafia Group” and were
dangerous, corrupt, and responsible for covering up murders,
beatings, and more. Id.
September 5, 2015, Plaintiff had an encounter with Officer
Lopez, another correctional officer. Id. at 4.
Allegedly, Lopez “set [Plaintiff] up with morphine
pills” and, at some point, had Plaintiff undress and
bend over for Lopez. Id. Lopez then placed his hands
on Plaintiff's waist and said “um, that's
nice.” Id. Lopez then began to stalk Plaintiff
for months, sexually harass, sexually assault, and sexually
batter him. Id. At one point Plaintiff told Officer
Lopez that his hands, feet, and back were hurting badly, but
Lopez refused to provide Plaintiff with any medical
attention. Id. Officer Lopez told medical staff that
they should “let him [Plaintiff] suffer, he anit [sic]
shit, we want him dead and we will get him one day, he will
died [sic], neglect all his medical care.” Id.
Lopez then proceeded to get Officer Stricland, also a
correctional officer, involved in the dispute by asking him
(Stricland) to “back him [Lopez] up” by writing a
at an undisclosed time, Plaintiff states that Captain
Sanchez, another correctional officer, locked him up for no
reason and verbally abused him in order to “keep [him]
from talking to anyone.” Id. at 5. Lopez
allegedly told Plaintiff that she did not care about his
religion and that he did not have the right to speak.
Id. Plaintiff alleged that Lopez said these things
because he filed a writ of habeas corpus with the “U.S.
State Supreme Court” that included allegations
concerning conspiracy to commit murder, killings, set ups,
and sexual quid pro quo. See Id. Plaintiff
goes on to add that Captain Sanchez, Lieutenant Williams, and
Officer Quinn “all wanted [him] dead” and that
Captain Sanchez wanted someone to set Plaintiff up because
she is corrupt and part of the RJD Greenwall Officer Mafia
Group. See id.
complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). Accordingly, prior to
filing a responsive pleading, a party may request by motion
that the court dismiss an opposing party's complaint
because it failed “to state a claim upon which relief
can be granted.” Fed R. Civ. P. 12(b)(6). In order
“[t]o survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007)). Complaints do “not require
‘detailed factual allegations, '” but must
contain more than “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements” to survive a motion to dismiss.
Ashcroft, 556 U.S. at 678. “Determining
whether a complaint states a plausible claim for relief . . .
[is] a context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense.” Id. at 679. If the court can only
infer “the mere possibility of misconduct” from
the pleaded facts, the ...