United States District Court, E.D. California
ORDER DENYING REQUESTS FOR JUDICIAL (ECF NOS. 13, 15)
NOTICE ORDER DENYING REQUEST FOR STATUS OF SCREENING AS MOOT
(ECF NO. 17) SCREENING ORDER DISMISSING FIRST AMENDED
COMPLAINT WITH LEAVE TO AMEND (ECF NO. 10)
BARBARA A. McAULIFFE, UNITED STATES MAGISTRATE JUDGE
Edward Furnace (“Plaintiff”) is a state prisoner
proceeding pro se and in forma pauperis in this civil rights
action pursuant to 42 U.S.C. § 1983. Plaintiff initiated
this action on March 28, 2016. (ECF No. 1). Plaintiff's
first amended complaint, filed on May 5, 2016, is currently
before the Court for screening. (ECF No. 10).
Requests for Judicial Notice (ECF Nos. 13, 15)
support of his first amended complaint, Plaintiff requests
that the Court take judicial notice of allegedly discarded
inmate appeals, along with a summary of his inmate appeals.
(ECF Nos. 13, 15). Although not entirely clear, it appears
that Plaintiff's request for judicial notice is an
attempt to demonstrate exhaustion of administrative remedies
in compliance with the Prisoner Litigation Reform Act.
time, the Court declines to take judicial notice of
Plaintiff's allegedly discarded inmate appeals or the
summary of inmate appeals to assess whether or not Plaintiff
has satisfied the exhaustion requirements of the Prisoner
Litigation Reform Act. A prisoner's failure to exhaust
administrative remedies is an affirmative defense that
generally must be raised by defendants and proven on a motion
for summary judgment. See Albino v. Baca, 747 F.3d
1162, 1172 (9th Cir. 2014).
indicated above, Plaintiff's first amended complaint is
currently before the Court for screening. At the screening
stage, the Court's primary inquiry is whether
Plaintiff's first amended complaint, or any portion
thereof, is subject to dismissal because it is frivolous or
malicious, it fails to state a claim upon which relief may be
granted, or it seeks monetary relief from a defendant who is
immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).
these reasons, Plaintiff's requests for judicial notice
are HEREBY DENIED. Insofar as Plaintiff's first amended
complaint also includes a request for judicial notice of
certain exhibits attached to his complaint, such a request is
unnecessary and is DENIED. The exhibits are incorporated by
reference into the amended complaint and, for purposes of
screening, the allegations in the complaint are taken as
true. Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677,
681 (9th Cir. 2009).
Motion for Status of Screening
19, 2017, Plaintiff submitted a letter to Court inquiring as
to why his complaint had not been screened. (ECF No. 17.)
Given the instant screening order, Plaintiff's request
for status is unnecessary and is HEREBY DENIED as moot.
Screening Requirement and Standard
Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity and/or against
an officer or employee of a governmental entity. 28 U.S.C.
§ 1915A(a). Plaintiff's complaint, or any portion
thereof, is subject to dismissal if it is frivolous or
malicious, if it fails to state a claim upon which relief may
be granted, or if it seeks monetary relief from a defendant
who is immune from such relief. 28 U.S.C. § 1915A(b)(1),
(2); 28 U.S.C. § 1915(e)(2)(B)(ii).
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). Detailed factual allegations
are not required, but “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Ashcroft v.
Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009)
(citing Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555, 127 S.Ct. 1955, 1964-65 (2007)). While a
plaintiff's allegations are taken as true, courts
“are not required to indulge unwarranted
inferences.” Doe I, 572 F.3d at 681 (internal
quotation marks and citation omitted).
survive screening, Plaintiff's claims must be facially
plausible, which requires sufficient factual detail to allow
the Court to reasonably infer that each named defendant is
liable for the misconduct alleged. Iqbal, 556 U.S.
at 678, 129 S.Ct. at 1949 (quotation marks omitted); Moss
v. United States Secret Service, 572 F.3d 962, 969 (9th
Cir. 2009). The sheer possibility that a defendant acted
unlawfully is not sufficient, and mere consistency with
liability falls short of satisfying the plausibility
standard. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949
(quotation marks omitted); Moss, 572 F.3d at 969.
is currently housed at Pelican Bay State Prison in Crescent
City, California. The events in the complaint are alleged to
have occurred while Plaintiff was housed at Kern Valley State
Prison (“KVSP”). Plaintiff names the following
defendants: (1) B. Cope, Institutional Gang Investigator
(“IGI”); (2) A. Alafa, IGI Sergeant; (3) J.
Harden, IGI Lieutenant; (4) John Doe, Inmate Task Force
Lieutenant; (5) S. Wilson, Lieutenant; (6) L. Sudgeun,
Correctional Officer; (7) C. Pfeiffer, Chief Deputy Warden;
(8) E. Perez, CCII; (9) R. Molina, Lieutenant; (10) J.
Ostrander, Lieutenant; (11) Dr. C.K. Chen; (12) Dr. R.
Lozovoy; (13) G. Arrezola, CMA; (14) L. Villa, Correctional
Officer; and (15) A. Murphy, SSU Agent, Sacramento.
Cause of Action
alleges that this action relates to a continuing campaign of
retaliation against him because of his race and his civil
actions: Furnace v. Giurbino, Case No. 13-17620;
Furnace v. Junious, Case No. 1:14-cv-01671-LJO-MJS;
and Furnace v. Nuckles, Case No. C-09-6075 MMC.
September 25, 2014, Plaintiff was transferred to KVSP as an
inactive monitored Black Guerrilla Family (“BGF”)
from CSP-SHU, and was subsequently placed in Ad/Seg on
October 21, 2014, for non-gang related or BGF reasons.
Plaintiff contends that Defendant Cope and others seized
Plaintiff's property on October 21, 2014, initiated a
conspiracy to return him to SHU, manufactured intelligence
and pried into his confidential legal matters in retaliation
for several lawsuits filed by Plaintiff against CDCR
November 20, 2014, Plaintiff's legal property was
returned. Plaintiff alleges that it was mixed up in order to
interfere with his preparation for an attorney visit
scheduled that same day. Plaintiff also alleges that certain
items were missing, including an obituary of his uncle, John
A. Greer, four large pictures of President Obama and his
administration that are evidence in Furnace v.
Giurbino, one picture of a black panther cat, twenty
Black Heritage Ray Charles U.S. Postage stamps, and twenty
Black Heritage Rosa Parks U.S. Postage stamps. Plaintiff
asserts that converting his property and prying into his
confidential legal matters by Defendant Cope and others was
not related to prison security, but showed their
discriminatory animus and intent to retaliate against him for
exercising his First Amendment rights.
November 23, 2014, Plaintiff lodged a 602 appeal,
KVSP-0-14-03927, against Defendant Cope for the converted
property. Defendant Harden allegedly cancelled the appeal
after Defendants Cope and Alafa reportedly lied in a report
by stating that Plaintiff refused to be interviewed.
Plaintiff asserts that Defendants Cope, Alafa and Harden
conspired to violate his rights by cancelling and not
returning the appeal to him. Plaintiff further asserts that
the failure to return the appeal violated his rights and the
ability to challenge its erroneous cancellation.
Cause of Action
alleges that CDCR adopted discriminatory regulations, which
have the effect of encouraging its IGI staff “to engage
in racial profiling, invidious discrimination and other
illegal [ ] hijinks against its Black American prisoners,
” such as Plaintiff. (ECF No. 10, p. 9). Plaintiff
asserts that the IGI and the inmate task force unit have made
a compact to perpetuate gang activity and culture in
violation of regulations and federal law. Plaintiff also
asserts that IGI and the task force unit have established a
custom of coaching and fabricating intelligence with a gang
nexus that allows them to use any photo or tattoo of a dragon
possessed by an African American prisoner to be labelled as
BGF and sent to the SHU. Plaintiff contends that this custom
by IGI violates the Equal Protection Clause of the Fourteenth
Amendment because it “does not apply to similarly
situated non-black prisoners possessing the same or like
items.” (ECF No. 10, p. 9). Plaintiff alleges that
there is no valid legislative purpose for CDCR to have a
regulation that “encourages and promotes its employees
for enforcing racism, by making the color of a mans'
[sic] skin the test of whether or not he has engaged in
prohibited ‘Gang Activity.'” (ECF No. 10, pp.
November 20, 2014, Plaintiff's property was returned,
accompanied by a RVR-115 (Log No. ASU 114-11-002) authored by
Defendants Cope, John Doe and Alafa. Plaintiff asserts that
this RVR established Defendant Cope's incompetence at
identifying BGF gang symbols and his discriminatory animus.
Plaintiff also asserts that the RVR establishes the joint
action in violation of his civil rights by Defendants Cope,
Alafa and John Doe in manufacturing reasons to return
Plaintiff to the SHU.
further alleges that he is a practitioner of Shetaut Neter
and his religious beliefs are sincerely held. Plaintiff
asserts that there is no connection between any of the
pictures in the RVR, the BGF, Black culture and Ancient
Egypt. Plaintiff further asserts that Defendant Cope altered
the RVR pictures containing the flying dragon, knowing it was
a business logo of Barbara Jean Nagle, who owns the company,
“A Book You Want.” Plaintiff contends that the
document in its original form contained a price list for six
books he wanted to buy. Plaintiff alleges that Defendant Cope
altered the document to racially profile and retaliate
against Plaintiff for his ongoing First Amendment conduct.
also alleges that the second photo in the RVR is not a BGF
symbol, but a postcard sent to Plaintiff at his CSP-SHU
address from the “Abolitionist Newspaper” in
Oakland, California. Plaintiff asserts that the postcard is a
mural of Quetzalcoatl, the Mesoamerican Feathered Serpent
god, worshipped for centuries in Mesoamerica. Plaintiff
contends that a non-expert viewing these documents in their
original form would conclude they were not gang symbols.
Plaintiff further contends that to make Quetzalcoatl a BGF
symbol is dubious since it is not used against either
Northern or Southern validated Hispanics. Plaintiff asserts
that the RVR's syllabus was manufactured by Defendant
Cope, John Doe and Alafa to advance their conspiracy, and
that these defendants racially profiled and retaliated
against Plaintiff because of his ongoing First Amendment
contends that Defendant Wilson knew of Defendant Cope's
machinations and could have stopped their commission during
the December 6, 2014 hearing, but Defendant Wilson failed to
do so because he had predetermined Plaintiff's guilt.
Plaintiff asserts that Defendant Wilson found Plaintiff
guilty of the RVR in order to advance the conspiracy of
Defendant Cope and others to return Plaintiff to the SHU for
maintaining a lawsuit against prison officials. On January
25, 2015, Plaintiff lodged an appeal contesting Defendant
Wilsons's guilty determination. The appeal was accepted
and processed as a staff complaint.
March 6, 2015, Defendant Harden denied the appeal, concluding
that Defendants Cope, John Doe, Alafa and Wilson did not
violate CDCR policy or Plaintiff's civil rights.
Plaintiff alleges that Defendant Harden knew of Defendant
Cope's conspiratorial machinations because of his own
dubious cancellation of another appeal. Plaintiff pursued
Defendant Harden's denial to the third level of review.
It was returned to him for inclusion of a form. Plaintiff
attached the form and mailed it back to the inmate appeals
branch in June 2015. Plaintiff believes that Defendant
Sudgeun rerouted the appeal to Defendant Cope, who destroyed
it to obstruct correspondence, third level review and proper
exhaustion for PLRA purposes so that Agent Murphy would have
enough time to revalidate Plaintiff.
Cause of Action
February 5, 2015, Plaintiff lodged a separate appeal
contesting Defendant Wilson's guilty findings. On
February 26, 2015, Defendant Pfeiffer denied the appeal at
the second level of review. Plaintiff asserts that Defendant
Pfeiffer knew about Defendant Cope's conspiracy against
Plaintiff because two of Plaintiff's appeals were
connected. Plaintiff further asserts that Defendant Pfeiffer
had the power to prevent Defendant Cope's conspiracies,
but chose not to do so in violation of Plaintiff's civil
rights. Plaintiff contends that Defendant Pfeiffer's
refusal to take corrective action caused him injury and
served to advance the conspiracy to return Plaintiff to the
SHU because of his race and First Amendment conduct.
March 18, 2015, Plaintiff's appeal was returned to him.
The following day, Plaintiff placed his appeal in an envelope
addressed to the Inmate Appeals Branch in Sacramento as
confidential legal mail. Plaintiff asserts that the ASU floor
staff took the envelope for mailing, but it was rerouted and
unlawfully seized and destroyed by IGI to obstruct
correspondence, third level adjudication and exhaustion so
that Agent Murphy would have enough time to revalidate and
send Plaintiff back to the SHU. Plaintiff contends that the
inmate appeals branch never received the appeal and it was
not returned to him. Plaintiff further contends that the
owner of the company “A Book You Want” and the
publishers of the “Abolitionist Newspaper” are
not BGF confederates in any capacity. Plaintiff alleges that
the conspiratorial conduct of Defendants Cope, John Doe,
Alafa, Harden, Wilson and Pfeiffer violated both his rights
and criminal law.
Cause of Action
August 5, 2015, Agent Murphy revalidated Plaintiff as an
active BGF based on incompetent analysis by Defendant Cope