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Furnace v. Cope

United States District Court, E.D. California

June 16, 2017

EDWARD FURNACE, Plaintiff,
v.
B. COPE, et al., Defendants.

          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

         Plaintiff 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).

         I. Requests for Judicial Notice (ECF Nos. 13, 15)

         In 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.

         At this 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).

         As 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).

         For 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).

         II. Motion for Status of Screening

         On May 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.

         III. Screening Requirement and Standard

         The 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).

         A 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).

         To 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.

         IV. Plaintiff's Allegations

         Plaintiff 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.

         First Cause of Action

         Plaintiff 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.

         On 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 officials.

         On 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.

         On 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.

         Second Cause of Action

         Plaintiff 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. 9-10).

         On 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.

         Plaintiff 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.

         Plaintiff 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 conduct.

         Plaintiff 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.

         On 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.

         Third Cause of Action

         On 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.

         On 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.

         Fourth Cause of Action

         On August 5, 2015, Agent Murphy revalidated Plaintiff as an active BGF based on incompetent analysis by Defendant Cope and ...


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