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Millare v. Stratton

United States District Court, S.D. California

May 23, 2017

MORIANO MILLARE, Plaintiff,
v.
G. STRATTON, et al., Defendants.

          REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE RE: DEFENDANT CORCORAN'S MOTION TO DISMISS [ECF NO. 31]

          Hon. Mitchell D. Dembin United States Magistrate Judge

         This Report and Recommendation is submitted to United States District Judge Cynthia Bashant pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule 72.1(c) of the United States District Court for the Southern District of California.

         For the reasons set forth herein, the Court RECOMMENDS Defendant J. Corcoran's Partial Motion to Dismiss be GRANTED.

         I. PROCEDURAL HISTORY

         Plaintiff Moriano Millare is a state prisoner proceeding pro se and in forma pauperis. (ECF Nos. 1, 2, 3). On June 24, 2016, Plaintiff filed a complaint pursuant to 42 U.S.C. § 1983. (ECF No. 1). Plaintiff's Complaint sets forth various claims against seventeen individuals alleging that they retaliated against him in violation of the First Amendment, imposed cruel and unusual conditions of confinement in violation of the Eighth Amendment, violated California Government Code § 19572(f), failed to comply with several California Codes of Regulation and failed to enforce the Department of Corrections Operations Manual (“DOM”). (Id. at 31-57).

         On December 19, 2016, twelve Defendants moved to dismiss counts ten through fifteen. (ECF No. 16).[1] Defendant Shelland joined the motion on January 23, 2017. (ECF No. 21). On February 28, 2017 this Court issued a Report and Recommendation regarding Defendant's Motion to Dismiss. (ECF No. 30). This Court recommended denying the Motion as to Plaintiff's First Amendment retaliation claims and granting the Motion as to Plaintiff's Eighth Amendment and state law claims. District Judge Bashant adopted the Report and Recommendation on April 6, 2017. (ECF No. 37).

         Defendant Corcoran was not a movant in the original Motion to Dismiss. He was served by mail at a date later than the aforementioned parties, and waived service on February 6, 2017. (ECF No. 28). Defendant Corcoran now moves to dismiss only the Plaintiff's claims that the previous Movants were successful in dismissing, for cruel and unusual punishment under the Eighth Amendment and all claims arising under state law. (ECF No. 31-1 at 2).

         Defendant Corcoran contends that (1) Plaintiff's twelfth count fails to state a claim under the Eighth Amendment because he does not allege the loss of a fundamental right, (2) counts thirteen through fifteen should be dismissed because Defendant is immune from liability under state law, or in the alternative (3) counts thirteen through fifteen should be dismissed because Plaintiff failed to exhaust his administrative remedies against Defendant Corcoran in the manner required by the California Government Claims Act. (ECF No. 31). Defendant also requests the Court take judicial notice of Plaintiff's government claims filed with the Victims Compensation and Government Claims Board (“VCGCB”). (ECF No. 31-2).

         Plaintiff has not filed an opposition. Under Civil Local Rules, failure to object to a Motion may be construed as consent to the granting of the motion. Civ. L.R. 7.1(f)(3)(c). Nevertheless, the Court will consider the motion on its merits.

         II. BACKGROUND FACTS

         These facts are taken from Plaintiff's Complaint, are not to be construed as findings of fact by the Court, and are limited to the claims relating to the movant, Defendant Corcoran. Plaintiff alleges that Defendant Corcoran is a “employed as a correctional officer on ‘A' facility at [Richard J. Donovan Correction Facility], and is responsible for the custody treatment and discipline of all inmates under his charge.” (ECF No. 1 at 11).

         Plaintiff's claims arise from a series of appeals that Plaintiff filed and Rules Violation Reports (“RVR”) filed against him while incarcerated at Richard J. Donovan Correction Facility (“RJD”) in San Diego, California. (See ECF No. 1). From July of 2014 to May of 2015, Plaintiff alleges that Defendants filed false RVRs against him, alleging that Plaintiff refused to report to work. (Id. at 18-20, 68, 76, 77, 100-01, 106-08, 125, 128). The RVRs state that the correctional officer in control of opening Plaintiff's cell door reported that they opened Plaintiff's cell door, but that Plaintiff refused to come out. (Id.). In response to the RVRs, Plaintiff filed appeals against the Defendants who authored the reports. (Id. at 18-20, 64-65, 73, 90-97, 96-97, 101-104, 115-17, 186-87). In the appeals, Plaintiff claims that counter to the information in the RVR, either his cell door was never opened or that he reported to work on the date listed in the RVR. (Id.). Plaintiff alleges that these appeals were improperly rejected, cancelled or denied. (Id. at 19, 22, 66, 72-76, 82-83, 86-87, 88, 92-93, 95, 98-99, 114-22, 188).

         From June of 2015 to April of 2016, Plaintiff filed inmate appeals alleging that Defendants were retaliating against Plaintiff's previous inmate appeals by improperly handling them or otherwise impeding his access to file prisoner grievances. (Id. at 135-36, 144-45, 171-72, 183-84). Plaintiff alleges that these appeals were also improperly rejected, cancelled or denied. (Id. at 133, 138-41, 143, 148-53, 170, 173-77, 179-82).

         Specific to the movant, Plaintiff alleges on March 6, 2015, Defendant Corcoran issued a RVR stating Plaintiff had failed to report to work and referenced prior documentation of Plaintiff's refusal to work. (Id. at 25-26). In the RVR, Defendant Corcoran detailed that Plaintiff's cell door was opened but he refused to come out. (Id.). Defendant Corcoran recommended Plaintiff appear before the appropriate classification committee for his immediate removal from his job assignment. (Id.). On March 11, 2015, the RVR was adjudicated by Senior Hearing Officer, Lieutenant A. Allamby, Plaintiff was found not guilty of the allegations made by Defendant Corcoran, and the RVR was dismissed. (Id.).

         Plaintiff's Complaint describes his claims in fifteen counts as follows:

         In counts one through eleven, Plaintiff contends that Defendants Limon, Charlton, Shelland, Corcoran, Fernandez, Vasquez, Brown, Asbury, Moore, Olsen, Olivarria, Baenziger, Self, Sosa, Seibel and Stratton violated his First Amendment right to freedom of ...


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