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Fletcher v. Quin

United States District Court, S.D. California

March 3, 2017

GREGORY L. FLETCHER C-41111, Plaintiff,
v.
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)

          Hon. Gonzalo P. Curiel United States District Judge

         INTRODUCTION

         Plaintiff 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[1] (“Quinn”) filed a Motion to Dismiss under Fed.R.Civ.P. 12(b)(6).[2] 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.

         Based on the reasoning below, the Court ADOPTS the Magistrate Judge's Report and Recommendation.

         PROCEDURAL BACKGROUND

         On 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.

         The FAC 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 receive service.

         STANDARD OF REVIEW

         In 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).

         FACTUAL ALLEGATIONS

         Plaintiff 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.

         On 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 memo. Id.

         Finally, 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.

         LEGAL STANDARD

         Every 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 ...


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