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Ellis v. Johnson

United States District Court, C.D. California

July 13, 2017

ROBERT L. ELLIS, Plaintiff,
v.
J. JOHNSON (CC1), T. LANSFORD (CC2), D. FOSTON (TLP Exm.), Defendants.

          ORDER DISMISSING FIRST AMENDED COMPLAINT WITHOUT LEAVE TO AMEND

          JOHN F. WALTER, United States District Judge

         I.

         PROCEDURAL BACKGROUND

         On May 3, 2017, Plaintiff, a prisoner proceeding pro se and in forma pauperis, filed a civil rights complaint. (Dkt. No. 1.) Pursuant to the Prison Litigation Reform Act, the Court screened the complaint to determine whether it failed to state a claim on which relief may be granted. 28 U.S.C. § 1915A; 42 U.S.C. § 1997e(c)(1). On May 22, 2017, the Court dismissed the complaint with leave to amend. (Dkt. No. 6.) On July 3, 2017, Plaintiff filed the First Amended Complaint (“FAC”). (Dkt. No. 7.)

         To survive dismissal, “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) (citation omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a ‘probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (citations omitted).

         A pro se complaint is to be liberally construed. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). Before dismissing a pro se civil rights complaint for failure to state a claim, the plaintiff should be given a statement of the complaint's deficiencies and an opportunity to cure them unless it is clear the deficiencies cannot be cured by amendment. Eldridge v. Block, 832 F.2d 1132, 1135-36 (9th Cir. 1987).

         II.

          ALLEGATIONS IN THE FIRST AMENDED COMPLAINT

         Plaintiff is housed in the California Men's Colony (“CMC”). He challenges his classification with an R suffix. The named Defendants, sued solely in their official capacity, are (1) J. Johnson, Correctional Counselor I, who declined to remove the R suffix in September 2016; (2) T. Lansford, Correctional Counselor II, who was involved in Plaintiff's second-level appeal; and (3) D. Foston, an Appeals Examiner who denied Plaintiff's final appeal. (FAC at 13.[1])

         A. Factual Background of Plaintiff's “R Suffix” Classification

         On June 9, 2016, after a hearing, California State Prison-Los Angeles County affixed an “R suffix, ” which applies to an inmate who has a history of sex offenses within the meaning of 15 Cal. Code Regs. § 3377.1(b). (FAC at 2.) Regulations permit classification with an R suffix based on consideration of arrest reports and district attorney's comments related to each arrest. 15 Cal. Code Regs. § 3377.1(b)(3) (requiring “inmates with records of arrest, detention, or charge of any offenses listed in PC Section 290” to “appear before a classification committee to determine the need to affix an ‘R' suffix to the inmate's custody designation” and requiring committee to “consider the arrest reports and district attorney's comments related to each arrest”); Id. § 3377.1(b)(5) (“classification committee may affix an ‘R' suffix if the arrest report(s) are available and the district attorney's comments are unavailable”).

         The FAC cites Exhibit 2. (FAC at 2.) Plaintiff previously attached the Classification Committee Chrono dated June 2016, which was attached as Exhibit C to the initial complaint. (Compl. at 20-22.) The committee reviewed Plaintiff's arrest reports and the district attorney's comments for each of two arrests. The committee addressed Plaintiff's January 19, 2012 arrest for rape by force or fear in violation of Cal. Penal Code § 261(a)(2). The committee noted that, according to the arrest report, the arresting officer responded to a call and met two victims. Janisse said “she was assaulted, threatened and raped by ‘Poncho' (later identified as S/Ellis) and forced to have sexual intercourse with a female black (later identified as V/2 Houston). She additionally stated the Suspect videotaped the entire encounter with his cell phone. She also witnessed the Suspect rape and sodomize V/2 Houston.” (Id. at 20-21.) The officer viewed part of the video on Plaintiff's phone. (Id. at 21.) Houston said Plaintiff had sodomized her against her will and choked her. The officer saw injuries to her back and neck. Houston said she was afraid Plaintiff would hurt her if she spoke to police and did not want to press charges. “She was terrified and shaking while she spoke to me.” The officer arrested Plaintiff. (Id.) The “DA declined to prosecute on 1/23/12.” (Id. at 20.)

         On April 26, 2011, Plaintiff was arrested for attempted rape, rape and sexual battery. Officers met a female victim, McDonald, who said she had run away from home five days earlier and was staying with her friend, “Dakota.” On April 26, 2011, while McDonald was “sleeping in the rear garage by herself, two male blacks whom V/McDonald knew by monikers ‘Poncho' (S/Ellis[)] and ‘Judge' [(]S/Rivers) entered . . ., locked the door and woke V/McDonald from her sleep.” (Id. at 21.) The two men tried to coerce her into having sex with them. She repeatedly refused and pleaded with them to stop touching her. Plaintiff finally demanded, “Are you going to let me hit that?” McDonald refused. Plaintiff punched her twice in the head and told her, “You need to go stand on the street corner, I'm going to make you my bitch.” McDonald believed Plaintiff was a pimp and “was ordering her to work on the street as a prostitute.” After McDonald identified Plaintiff and Rivers, they were arrested. (Id.) The charges (in case number TA117808) were dismissed on July 6, 2011. (Id. at 20) “[T]he DA declined to prosecute this case.” (Id. at 21.)

         “Based on the totality of the available information and the [regulatory] guidelines, ” the Committee found that Plaintiff warranted an R suffix and referred the matter “to the CSR [Classification Staff Representative] for that purpose.” (Id.) The R suffix was affixed by the CSR on August 16, 2016. (Id. at 14.)

         B. Plaintiff's Classification at CMC

         Plaintiff was subsequently transferred to CMC. The FAC complains that Plaintiff's efforts at CMC to get the R suffix removed were denied.

         1. Defendant J. Johnson

         On September 13, 2016, Plaintiff appeared for an initial review of his classification before the Unit Classification Committee. The Correctional Counselor was defendant J. Johnson. Plaintiff requested that Johnson “remove the ‘R' suffix.” (FAC at 2.)

         Plaintiff argues that Johnson acted with deliberate indifference in failing to follow the standards in 15 Cal. Code Regs. § 3377.1(b) and that the prosecutors' decisions not to prosecute him for the sex offenses are the equivalent of “the DA's office finding plaintiff not guilty of the two charges in question.” (Id. at 15.) The FAC also alleges Johnson acted with deliberate indifference to the known substantial risk of serious harm that inmates with an R suffix face. (Id. at 4-5.)

         2. Defendant T. Lansford

         Plaintiff filed a formal Inmate Appeal (CDCR Form 602) on October 13, 2016. (Id. at 5.) Plaintiff alleges Lansford unfairly denied the second-level appeal and failed to consider the standards in 15 Cal. Code Regs. § 3377.1(b). (Id. at 5-6.) As with Johnson, Plaintiff alleges that Lansford “has [the] common knowledge” that an R suffix ...


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