United States District Court, E.D. California
(14) DAY DEADLINE
FINDINGS AND RECOMMENDATIONS TO DISMISS
NON-COGNIZABLE CLAIMS, (ECF, 16)
MICHAEL J. SENG UNITED STATES MAGISTRATE JUDGE.
is a state prisoner proceeding pro se and in forma pauperis
in this civil rights action filed pursuant to 42 U.S.C.
§ 1983. (ECF No. 1.) He has consented to Magistrate
Judge jurisdiction. (ECF No. 6.) Defendants declined to
consent to Magistrate judge jurisdiction. (ECF No. 51.)
Court screened Plaintiff's third amended complaint (ECF
No. 16) and found it states due process and equal protection
claims against Defendants Beard, Castorena, Escobar, Lambert,
Mahoney, Cano, Kraay, Galaviz, Rousseau, Gipson, Taber,
Jennings, Sanchez, Pina, Pacillas, Lackovic, Smith, Kellogg,
McGuire, Mayo, Mata, Holland, Prince, Chavez, Vasquez, Edgar,
Garcia, Mayfield, and Patterson. (ECF No. 18.) Although not
expressly stated, the remaining claims were ostensibly
dismissed. Plaintiff later was permitted to file a fourth
amended complaint (ECF Nos. 53, 60), and the action has
proceeded since that time on the cognizable claims identified
herein. The District Judge has not yet reviewed the dismissal
of Plaintiff's non-cognizable claims.
Williams v. King
courts are under a continuing duty to confirm their
jurisdictional power and are “obliged to inquire sua
sponte whenever a doubt arises as to [its]
existence[.]” Mt. Healthy City Sch. Dist. Bd. of
Educ. v. Doyle, 429 U.S. 274, 278 (1977) (citations
omitted). On November 9, 2017, the Ninth Circuit Court of
Appeals ruled that 28 U.S.C. § 636(c)(1) requires the
consent of all named plaintiffs and defendants, even those
not served with process, before jurisdiction may vest in a
Magistrate Judge to dispose of a civil claim. Williams v.
King, 875 F.3d 500 (9th Cir. 2017). Accordingly, the
Court held that a Magistrate Judge does not have jurisdiction
to dismiss a claim with prejudice during screening even if
the plaintiff has consented to Magistrate Judge jurisdiction.
Defendants were not yet served at the time that the Court
screened the third amended complaint and therefore had not
appeared or consented to Magistrate Judge jurisdiction.
Because Defendants had not consented, the undersigned's
dismissal of Plaintiff's claims is invalid under
Williams. Because the undersigned nevertheless
stands by the analysis in his previous screening orders, he
will below recommend to the District Judge that the
non-cognizable claims be dismissed.
Findings and Recommendations on Plaintiff's Third and
Fourth Amended Complaints
Court dismissed certain claims upon review of the third
amended complaint. However, the fourth amended complaint (ECF
No. 53) is now the operative pleading. Both complaints are
Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or an 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. §
1983 provides a cause of action against any person who
deprives an individual of federally guaranteed rights
“under color” of state law. 42 U.S.C. §
1983. 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 (2009) (citing
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007)), and 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). While factual
allegations are accepted as true, legal conclusions are not.
Iqbal, 556 U.S. at 678.
section 1983, Plaintiff must demonstrate that each defendant
personally participated in the deprivation of his rights.
Jones v. Williams, 297 F.3d 930, 934 (9th Cir.
2002). This requires the presentation of factual allegations
sufficient to state a plausible claim for relief.
Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret
Service, 572 F.3d 962, 969 (9th Cir. 2009). Prisoners
proceeding pro se in civil rights actions are entitled to
have their pleadings liberally construed and to have any
doubt resolved in their favor, Hebbe v. Pliler, 627
F.3d 338, 342 (9th Cir. 2010) (citations omitted), but
nevertheless, the mere possibility of misconduct falls short
of meeting the plausibility standard, Iqbal, 556
U.S. at 678; Moss, 572 F.3d at 969.
identifies Secretary of Corrections Jeffrey Beard; Chief
Deputy Wardens R. S. Lambert, E. Vasquez, and M. Jennings;
Psychologists J. Mahoney, J. Edgar, and D. Prince;
Institutional Gang Investigators A. Mayo, J.C. Garcia, and S.
Pina; Assistant Institutional Gang Investigator J. Cano;
Sergeants T. Kraay, J. Taber, H. Holland, and A. Kellogg;
Correctional Counselors T. Galaviz, P. Sanchez, A. Pacillas,
K. Mata, R. Chavez, D. Mayfield, D. Patterson, and D.
McGuire; Captain S. Rousseau; Warden C. Gipson; Dr. A.
Lackovic; Associate and Chief Deputy Warden J. Smith; and
Classification Staff Representatives M. Escobar and B.
Castorena as Defendants.
allegations can be summarized essentially as follows:
July 2012, Plaintiff has been confined in the segregated
housing unit (“SHU”) due to his alleged
membership in the Northern Structure prison gang. Plaintiff
was denied an opportunity to present evidence, witnesses or
his views on the issue prior to his SHU placement.
August 2, 2012, Defendants Lambert, Mahoney, Cano, Kraay,
Galaviz, and Rousseau reviewed Plaintiff's case and
decided to keep him in the SHU. Plaintiff was not assigned a
special investigator for the hearing or given the opportunity
to dispute his gang involvement or present evidence or
witnesses. Defendants did not re-examine or re-assess any of
the evidence against Plaintiff. On December 20, 2012,
Defendants Gipson, Mahoney, Taber, Sanchez, Pina, and
Pacillas committed the same violations. On June 20, 2013,
Defendants Gipson, Lackovic, Smith, Kellogg, McGuire, Mayo,
Pacillas, and Mata committed the same.
23, 2013, Defendant Escobar approved Plaintiff's
retention in administrative segregation. Defendant Escobar
did not provide Plaintiff with a hearing, an opportunity to
dispute his gang involvement, to present witnesses or
evidence, or provide him with an investigative employee.
January 28, 2014, Defendants Smith, Holland, Prince, Pina,
Galaviz, and Chavez reviewed Plaintiff's case and
retained him in the SHU for an indeterminate term. Defendants
did not permit Plaintiff to dispute the evidence of his gang
involvement, present witnesses or evidence, or assign him an
investigative employee. On June 24, 2014, Defendants
Jennings, Holland, Prince, Pina, Galaviz, and Chavez
committed the same during Plaintiff's annual review. On
October 6, 2014, Defendant Castorena approved the retention
of Plaintiff in SHU without a hearing or other opportunity
for Plaintiff to object. On January 7, 2015, Defendants
Vasquez, Holland, Garcia, Edgar, Patterson, and Mayfield
committed the same.
above named Defendants were acting in accordance with
Defendant Beard's unconstitutional policy requiring
segregation of gang affiliated inmates from the general
population for an indeterminate term without evidence of
misconduct. Defendant Beard was aware of Plaintiff being
subjected to this policy based on Plaintiff's appeals.
Despite Plaintiff's appeals, Defendant Beard failed to
change the policy or correct his subordinates'
unconstitutional conduct. The policy violates an inmate's
right to freedom of association, does not serve a legitimate
penological objective, and discriminates against identified
prison gang members.
has not had any disciplinary action taken against him since
2009. He has never been found guilty of gang activity or
participation in any gang-related conspiracies. However,
because of his placement in the SHU, Plaintiff is subject to
gang sanctions. He is confined to his 7 x 11 foot cell for
approximately 159 hours per week with no periods of darkness.
The food has made Plaintiff sick, his mattress is thin and he
is not allowed a pillow, he has limited access to medical
services, showers, and the library, his yard space and
allowable activities are limited, numerous restrictions are
placed on his visitation, he can only receive one personal
property package per year, and he is subjected to extensive
searches prior to and after transport from his cell.
sues Defendants in their individual and official capacities
and seeks declaratory and injunctive relief, expungement of
his records, damages and costs for violation ...