United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS
CASE PROCEED AGAINST DEFENDANT C/O ROSA GONZALES ON
PLAINTIFF'S CLAIMS FOR RETALIATION, VIOLATION OF THE FREE
EXERCISE CLAUSE, AND RELATED STATE LAW CLAIMS, AND THAT ALL
OTHER CLAIMS AND DEFENDANTS BE DISMISSED (ECF NO.
S. AUSTIN, UNITED STATES MAGISTRATE JUDGE
is a former state prisoner proceeding pro se and
in forma pauperis with this civil rights action
pursuant to 42 U.S.C. § 1983. Plaintiff filed the
Complaint commencing this action on January 11, 2017. (ECF
No. 1.) On December 21, 2017, the court screened the
Complaint and issued an order requiring Plaintiff to either
file an amended complaint, or notify the court that he is
willing to proceed only on the claims found cognizable by the
court. (ECF No. 13.) On February 9, 2018, Plaintiff filed the
First Amended Complaint, which is now before the court for
screening. (ECF No. 17.)
court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or officer or
employee of a governmental entity. 28 U.S.C. § 1915A(a).
The court must dismiss a complaint or portion thereof if the
prisoner has raised claims that are legally “frivolous
or malicious, ” that fail to state a claim upon which
relief may be granted, or that seek monetary relief from a
defendant who is immune from such relief. 28 U.S.C. §
1915A(b)(1), (2). “Notwithstanding any filing fee, or
any portion thereof, that may have been paid, the court shall
dismiss the case at any time if the court determines that the
action or appeal fails to state a claim upon which relief may
be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).
complaint is required to 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 (2009) (citing
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007)). While a plaintiff's allegations are taken as
true, courts “are not required to indulge unwarranted
inferences.” Doe I v. Wal-Mart Stores, Inc.,
572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks
and citation omitted). To state a viable claim, Plaintiff
must set forth “sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Iqbal, 556 U.S. at 678-79;
Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th
Cir. 2009). While factual allegations are accepted as true,
legal conclusions are not. Id. The mere possibility
of misconduct falls short of meeting this plausibility
is presently out of custody. The events at issue in the
Complaint allegedly occurred at Valley State Prison (VSP) in
Chowchilla, California, when Plaintiff was incarcerated there
in the custody of the California Department of Corrections
and Rehabilitation (CDCR). Plaintiff names as defendants
Correctional Officer (C/O) Rosa Gonzales and the CDCR
allegations follow. On December 16, 2015, defendant C/O Rosa
Gonzales worked in D2. (ECF No. 17 at 5 ¶2.) C/O
Gonzales told C/O Mata [not a defendant] that she (Gonzales)
would do the searches today. C/O Gonzales went straight to
Plaintiff's bunk area, ransacked all his property, and
found the folder that contained legal documents for case No.
1:14-cv-1177, where she (Gonzales) is named as a defendant.
Defendant Gonzales grabbed bleach from under the sink in the
room, poured bleach on the legal papers and folder, and
grabbed Plaintiff's prayer rug and poured bleach all over
it. Defendant Gonzales confiscated the prayer rug. The search
was not performed according to policy. No other searches were
wrote two CDCR Form 22 requests to C/O Gonzales requesting
the return or replacement of the prayer rug. C/O Gonzales
never responded, in violation of Title 15, CCR §
3086(f)(4). Plaintiff filed a staff complaint against C/O
Gonzales for retaliation, Log #VSP-D-16-0039. The staff
complaint was exhausted at the third level.
26, 2016, a timely Government Tort Claim was filed, claim
#G632054. On June 6, 2016, the claim was rejected and
Plaintiff was informed that his complaint was best suited for
the court system.
day the damaged prayer rug has never been returned or
replaced as requested in appeal Log #VSP-D-16-0039. C/O
Gonzales's actions were in retaliation for Plaintiff
filing lawsuit 1:14-cv-1177.
Fonderon [not a defendant] handled the lower level appeals of
Log #VSP-D-16-0039. Fonderon interviewed Plaintiff who showed
Fonderon the bleached paper and folder, and Fonderon pulled
the prayer rug out of the confiscation locker and saw the
bleach marks on the prayer rug. Fonderon never gave the
prayer rug back nor ordered it to be replaced. Plaintiff was
left without a prayer rug.
is a Muslim. Muslims pray 5 times a day. When they pray, they
utilize a prayer rug which is, and represents, Holy Ground.
The prayer rug allows them to pray anywhere on Holy Ground.
Their religion only allows them to pray on Holy Ground,
“no exceptions, ” so since Plaintiff's prayer
rug was confiscated and not replaced a key part of
Plaintiff's ability to practice his religion is missing.
Without the prayer rug Plaintiff was not able to pray at all,
so he could not practice his religion.
the events described above Plaintiff was in constant fear
that defendant C/O Gonzales would return and ransack and take
his property. Several times Plaintiff thought about
dismissing his lawsuit, but family and ...