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Ingram v. Sterling

United States District Court, S.D. California

March 15, 2017

CURTIS CLIFFORD INGRAM, Plaintiff,
v.
K. STERLING, et al., Defendants.

         ORDER: (1) ADOPTING IN PART REPORT AND RECOMMENDATION REGARDING DEFENDANTS' MOTION TO DISMISS PORTIONS OF PLAINTIFF'S SECOND AMENDED COMPLAINT; (2) GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS PORTIONS OF PLAINTIFF'S SECOND AMENDED COMPLAINT; (3) GRANTING PLAINTIFF LEAVE TO FILE A THIRD AMENDED COMPLAINT BY APRIL 21, 2016 [ECF NOS. 22, 29.]

          Hon. Gonzalo P. Curiel United States District Judge.

         Plaintiff Curtis Clifford Ingram (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. (Dkt. No. 1.)[1] Plaintiff filed a Second Amended Complaint ("SAC") on April 15, 2016, in which he asserts claims against Defendants K. Sterling, K. Balakian, K.A. Seibel, and Warden Paramo (collectively, "Defendants"; individually, "Sterling, " "Balakian, " "Seibel, " and "Paramo").[2] (Dkt. No. 18-1.)[3] Pending before the Court is Defendants' Motion to Dismiss Portions of Plaintiff s SAC. (Dkt. No. 22.)

         Pursuant to 28 U.S.C. 6336(b)(1)(A), United States Magistrate Judge Louisa S. Porter submitted a Report and Recommendation ("Report") to this Court recommending the Motion to Dismiss be granted in part and denied in part, with leave to amend. (Dkt. No. 29.) Judge Porter required the parties to file objections by February 17, 2017. Plaintiff notified the court of his non-opposition to the Report.[4] (Dkt. No. 30.) Defendants did not file objections. Having considered the parties' submissions and the applicable law, the Court ADOPTS IN PART Judge Porter's Report and GRANTS IN PART and DENIES IN PART Defendants' motion to dismiss.

         FACTUAL BACKGROUND

         Plaintiff is currently incarcerated at CSP-Corcoran. (SAC, Dkt. No. 18-1 at 1.) Plaintiff's SAC concerns incidents occurring in April and October 2014 while Plaintiff was incarcerated at R.J. Donovan Correctional Facility ("RJD") in San Diego, California. (Id.) Plaintiff alleges three separate counts, each of which asserts claims for First Amendment retaliation. (Mat 3-9.)

         I. Count 1

         Plaintiff alleges that on April 2, 2014, Sterling, a library technical assistant, denied his attempt to obtain Priority Legal User (“PLU”) status, even though Plaintiff had a court order from the Central District of California allegedly demonstrating “extraordinary circumstances” warranting such status.[5] (Id. at 3, 4, 13.) Sterling told Plaintiff that “PLU is generally for lockdowns and modified program, ” which Plaintiff alleges is contrary to California Code of Regulations §§ 3122(a), (b)(1), and (b)(6).[6] (Id. at 3-4, 15.)

         Sterling's response prompted Plaintiff to file a California Department of Corrections and Rehabilitation (“CDCR”) Form 22, which is an informal request for response, on April 2, 2014. (Id. at 3, 15.) In the CDCR Form 22, Plaintiff stated that he was “erroneously denied PLU statis [sic]” by Sterling “under the unreasonable pretense that PLU statis [sic] is generally for lockdown's [sic] and modified program.” (Id.)

         Plaintiff tried to give Sterling the CDCR Form 22, but was refused. (Id. at 3.) Consequently, Plaintiff forwarded the request to Sterling's direct supervisor, Balakian, who Plaintiff believes instructed Sterling to respond. (Id.) Plaintiff alleges that Sterling, in her response,

failed to controvert Plaintiffs verbatim account of what K. Sterling stated about the PLU process, and, instead, raised a moot issue concerning Plaintiff giving K. Sterling's inmate clerk the informal request to give to her, even though these same clerks handle and make copies of inmate litigants[‘] sensitive legal documents.

(Id.) Plaintiff resubmitted the informal response for supervisor review, but received no response from Balakian. (Id.)[7]

         Plaintiff alleges Sterling retaliated against him on April 2, 2014 for exercising his right to redress grievances and right to law library access, by instructing L. Acosta, a trainee of less than a month, to issue a CDCR 128A Chrono Report alleging misconduct by Plaintiff. (Id.) The CDCR 128A Chrono Report stated:

On Wednesday, April 02, 2014, at approximately 1315 hours, while performing my duties as Facility “D” LTA (A); I observed Inmate INGRAM, AE-6335 (D19-220L) entering the law library. During the time that INGRAM was inside the library, I entered the Staff restroom. Through the Staff restroom door, I could hear an escalating conversation between INGRAM and my colleague Ms. K. Sterling who is the Facility “D” Librarian. The conversation was at such a loud tone, it was very discernable [sic] through the Staff bathroom door. I then came out of the restroom and advised INGRAM that he needed to step away from the out-of-bounds area that was clearly posted. INGRAM did not comply with my direct order the first time. I then ordered INGRAM a second time to leave the library to which he finally complied with my direct order and exited the library.

(Id. at 17.) Plaintiff alleges that the CDCR 128A Chrono Report did not reasonably advance any penal goal, and that it was reasonably inferable that the trainee issued the report at the instruction of Sterling. (Id. at 3.)

         On April 5, 2014, Plaintiff attempted to renew his PLU status by submitting a PLU Request and Declaration. (Id. at 4, 19-20, 22.) Sterling again refused to grant him PLU status. (Id.) Plaintiff alleges Sterling “sought to make an incident alleging that Plaintiff was out-of-bounds, ” and contacted custody. (Id. at 4.) When custody arrived, Plaintiff explained the situation and handed a prepared CDCR Form 22 to one of the correctional officers, who hand-delivered it to Sterling. (Id.)

         In the CDCR Form 22, Plaintiff stated that when he attempted to obtain PLU status, “Sterling became belligerent, refused to grant status [and] adhere to established rules or exceptions], and falsely accused [him] of threats, manipulation, etc.” (Id. at 22.) He “tried to defend [and] explain” himself, and gave Sterling notice that he “would appeal to her supervisors.” (Id.) Sterling responded to the CDCR Form 22 on the same day, stating that what Plaintiff presented for PLU status was not in accordance with Title 15, California Code of Regulations §§ 3122(b)(1) and (b)(6). (Id.) Plaintiff requested supervisor review on April 6, 2014, but alleges Balakian never responded. (Id. at 4, 22.)

         Plaintiff alleges Sterling retaliated against Plaintiff on April 5, 2014 “for seeking to redress/appeal another reasonable right to access issue” by falsely charging him with a serious CDCR 115 Rule Violation Report (“RVR”) for “Disobeying a Direct Order.” (Id. at 3-4.) Sterling signed and dated the RVR on April 11, 2014. (Id. at 24.) In the RVR, Sterling stated:

On Saturday, April 05, 2014, at approximately 1030 hours, while performing my duties as Facility “D” Librarian (A); I observed Inmate INGRAM, AE-6335 (D19-220L) entering the Facility “D” Law Library out of his tier rotation yard schedule. I had already verbally counseled INGRAM on 04/02/14 and 04/03/14 regarding his unauthorized] entry into the law library out of his tier rotation. I then gave INGRAM a direct order to exit the law library, at which time, he refused to comply with my order by becoming belligerent and argumentative with me for several minutes[.] I informed INGRAM that I would activate my Personal Alarm Device (PAD) if he did not leave. I then contacted the Facility “D” Program Office for further assistance, at which time, INGRAM voluntarily left without further incident. This concludes my report. Inmate INGRAM is aware of this report.

(Id.)

         On April 17, 2014, Plaintiff was found not guilty of the RVR, and the charges were dismissed “in good cause.” (Id. at 25.) The dismissal stated: “[A] review of the yard schedule indicated that the top tier was out for a.m. yard, and [Plaintiff] is currently assigned to the top tier.” (Id.) The RVR was removed from Plaintiffs Central File. (Id. at 27.)

         II. Count 2 After the prior RVR was adjudicated in Plaintiffs favor, custodial officials instructed Plaintiff not to enter the law library on “off-tier” rotation, “without custody supervision and approval, ” and to “ask K. Sterling for permission to enter.” (Id. at 5-6.) Plaintiff contacted Officer Seagram and explained his intention to make copies at the law library and effectuate service of process. (Id.) Officer Seagram approved the request, but warned Plaintiff that if Sterling said “No, ” Plaintiff should leave the law library without further incident. (Id.) On April 26, 2014, Plaintiff followed instructions and made the request to Sterling, which Sterling denied. (Id.) Plaintiff then left, “pending afternoon library session on Plaintiffs tier rotation.” (Id.)

         That afternoon, Plaintiff went to the law library and processed two separate sets of items to copy, including exhibits from the dismissed RVR (for attachment to a CDCR 602 Appeal) and a settlement conference request motion. (Id. at 5-6, 29-30.) Plaintiff alleges that Sterling, for the first time, handled his copy job herself, and in addition to making Plaintiffs copies, made copies for herself. (Id. at 5-6.) Plaintiff alleges that although he watched her make copies for herself, she lied about making the copies and attempted to conceal the “illegally copied documents.” (Id.) Sterling's inmate clerks, rather than Sterling herself, usually make copies. (Id.)

         After making copies for both herself and Plaintiff, Sterling notified Plaintiff that he would be receiving another RVR for “Disobeying a Direct Order” for being “out-of-bounds” again. (Id. at 5-6, 36.) The RVR, issued by Sterling on May 6, 2014, alleges Plaintiff “refused to sign the sign-in/sign-out sheet, entered a restricted area, and refused a direct order.” (Id. at 36.) Plaintiff alleges that Sterling issued the RVR in retaliation for Plaintiffs attempt to seek redress and appeal a reasonable right to library access. (Id. at 5-6.) Plaintiff further alleges that he was engaged in the protected conduct of filing a grievance at the time Sterling gave notice, and that Sterling's copying of his documents for herself was an attempt to “chill” his grievance process. (Id.)

         Plaintiff alleges that Sterling further retaliated against him on April 26, 2014 by issuing a CDCR 128A Chrono Report for documenting in the copy log book that she made copies of his documents for herself. (Id.) In the CDCR 128A Chrono Report, Sterling stated that Plaintiff “intentionally introduced false information on [a] document/record maintained by the CDCR's Education/Library program” when he wrote “Ms. Sterling took copies (4) herself → of 602 exhibits” on the “Copy List” log. (Id. at 34.) Sterling further stated that Plaintiff was in “direct violation of CCR Section § 3021” by intentionally entering and introducing false information upon a record or document maintained by CDCR's Education/Library Program. (Id.) Plaintiff alleges his conduct was protected because he was documenting Sterling's conduct for appeal purposes. (Id. at 5-6.)

         On April 26, 2014, after Plaintiff finished at the law library, he submitted another CDCR Form 22, which was signed off by and delivered to Sterling by Sergeant Bettingger. (Id. at 6, 32.) He received no response. (Id. at 6.)

         On May 10, 2014, Plaintiff was found not guilty of the May 6, 2014 RVR, and the charges were dismissed “in good cause.” (Id. at 39.) The dismissal order stated that “the Reporting Employee failed to identify the direct order given, and the direct order that [Plaintiff] failed to follow.” (Id.) The RVR was removed from Plaintiff's Central File. (Id. at 39, 41.)

         Plaintiff alleges that he submitted CDCR 602 Appeals on these issues on April 28, 2014 and May 13, 2014.[8] (Id. at 6.) Plaintiff contends that his factual allegations of “Employee Misconduct - Course of Conduct” were misconstrued as a “Disciplinary” matter, and as a result, the merits of his claims were not reached. (Id.) Plaintiff alleges the administrative appeals process was ineffective in addressing his retaliation claims. (Id.)

         III. Count 3

         Plaintiff alleges that on October 17, 2014, Sterling retaliated against Plaintiff by falsely charging him with an RVR for “Behavior Which Might Lead to Violence.” (Id. at 7, 61.) As a result of the RVR, Plaintiff was placed in Administrative Segregation (“Ad-Seg”); his privileges were reduced; his job and pay were terminated; and he was transferred from RJD to CSP-Corcoran. (Id. at 7-8.) Plaintiff alleges this incident was part of an ongoing course of conduct of retaliation by Sterling, and that if CDCR had properly characterized his earlier CDCR 602 Appeal, this incident could have been prevented. (Id.)

         On October 17, 2014, Plaintiff sought to make copies of a motion for one of his three pending Central District of California proceedings and to obtain a certified trust account statement to file an in forma pauperis application for a new case in the Southern District of California. (Id. at 7, 56-59.) Plaintiff alleges Sterling refused to process the application because she observed that he was attempting to initiate a case in the Southern District of California. (Id. at 7.) He further alleges that the following conversation occurred:

Sterling: “Your application is incomplete.”
Plaintiff: “How is that? I've filled out relevant sections.”
Sterling: “You have to state your defendants.”
Plaintiff: “No, I don't! I've stated a [Bivens] Claim. You can't tell me how to litigate my case.”
Sterling: “I'm not processing your application. I'm tired of going through this stuff with you.”
Plaintiff: “Well, you haven't seen anything yet.”

(Id. at 7-8.)

         Plaintiff alleges that no threats were implied or stated, and that Sterling did not activate her PAD at that time, per institution policy and procedure. (Id. at 8.) Rather, Sterling waited approximately five hours to file her allegedly false charges in an RVR, stating that she was “verbally threatened” and did not feel safe around Plaintiff. (Id. at 8, 61.) Plaintiff alleges that Sterling's actions chilled his access to the courts. (Id. at 8.) As a result of the RVR, Plaintiff was placed in Ad-Seg on October 17, 2014. (Id. at 72.)

         On October 23, 2014, Plaintiff appeared before the Institution Classification Committee (“ICC”) for an Ad-Seg review. (Id. at 8, 71-74.) Plaintiff alleges Defendant Seibel was in attendance and failed to respond, which resulted in Plaintiff being released to a different facility pending transfer, with reduced privileges. (Id. at 8, 73.) He further alleges a “subsequent emergency appeal on this matter went unanswered.” (Id. at 8, 10.)

         On November 6, 2014, Plaintiff was found not guilty of the October 2014 RVR, and the charges were dismissed “in good cause.” (Id. at 8, 61-67.) The RVR was removed from his Central File. (Id. at 66.) Plaintiff contends that “[c]ustody is well aware of an on-going issue between K. Sterling and inmate litigants.” (Id. at 8.) Plaintiff lists cases and attaches letters and grievances involving Sterling, alleging that her supervisors, including Defendant Paramo, were aware of her conduct towards inmates and should have prevented her constitutional violations. (Id. at 7-8.)

         On July 9, 2015, Plaintiff was transferred to CSP-Corcoran, allegedly as a direct result of the retaliatory conduct of Sterling. (Id. at 8.)[9]

         PROCEDURAL HISTORY

         Plaintiff commenced this action on November 12, 2014, by filing a Complaint and motion for leave to proceed in forma pauperis. (Dkt. Nos. 1, 2.) On December 31, 2014, Plaintiff filed a First Amended Complaint (“FAC”). (Dkt. No. 3.) On February 9, 2015, the Court granted Plaintiffs motion for leave to proceed in forma pauperis and, following an initial screening of the FAC pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b), directed the U.S. Marshal to effect service of the FAC on Plaintiff's behalf. (Dkt. No. 4.)

         Defendants filed a Motion to Dismiss Plaintiff's FAC on May 4, 2015. (Dkt. No. 10.) On December 15, 2015, United States Magistrate Judge David H. Bartick issued a Report and Recommendation recommending that this Court grant Defendants' Motion to Dismiss the FAC, with leave to amend. (Dkt. No. 16.) This Court adopted the Report and Recommendation on March 29, 2016, and granted in part and denied in part Defendants' Motion ...


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