United States District Court, S.D. California
REPORT AND RECOMMENDATION FOR ORDER GRANTING
DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S FIRST
AMENDED COMPLAINT [ECF No. 17]
HONORABLE LINDA LOPEZ, UNITED STATES MAGISTRATE JUDGE
Report and Recommendation is submitted to United States
District Judge Dana M. Sabraw pursuant to 28 U.S.C. §
636(b) and Civil Local Rules 72.1(c) and 72.3(f) of the
United States District Court for the Southern District of
California. For the following reasons, the Court
RECOMMENDS Defendants' Motion to Dismiss
Plaintiff's First Amended Complaint be
2, 2018, Plaintiff Gary Ronnell Perkins, a state prisoner
proceeding pro se and in forma pauperis,
commenced this action under the Civil Rights Act, 42 U.S.C.
§ 1983, on behalf of himself and his “legal
wife” Catherine Clark-Perkins against Defendants C.
Angulo, T. Raybon, and J. Bernal. ECF No. 1
2, 2018, Plaintiff filed a motion for leave to proceed in
forma pauperis. ECF No. 2. On May 24, 2018,
Plaintiff's motion was granted. ECF No. 3. In the Order,
the Court dismissed Catherine Clark-Perkins from the suit,
holding that Plaintiff, as a pro se plaintiff,
lacked the authority to represent the legal interests of
another party. Id. at 2.
August 3, 2018, Defendants filed a motion to dismiss
Plaintiff's Complaint for failure to state a claim from
which relief may be granted. ECF No. 8 (“Mot.”).
On December 19, 2018, this Court issued a Report and
Recommendation for an Order granting Defendants' Motion
to Dismiss. ECF No. 13. On February 25, 2019, the Honorable
Dana M. Sabraw issued an Order adopting the Report and
Recommendation in its entirety. ECF No. 15.
March 25, 2019, Plaintiff filed a First Amended Complaint
(“FAC”). ECF No. 16. On April 11, 2019,
Defendants filed a Motion to Dismiss Plaintiff's First
Amended Complaint for failure to state a claim from which
relief may be granted. ECF No. 17 (“Mot.”). On
May 20, 2019, the Court issued an Order Setting a Briefing
Schedule. ECF No. 18. On May 20, 2019, Plaintiff filed a
Response. ECF No. 19 (“Opp.”). Defendants did
not file a Reply. See Docket.
this case comes before the Court on a motion to dismiss, the
Court must accept as true all material allegations in the
First Amended Complaint and must construe the First Amended
Complaint and all reasonable inferences drawn therefrom in
the light most favorable to Plaintiff. See Thompson v.
Davis, 295 F.3d 890, 895 (9th Cir. 2002).
to Plaintiff's First Amended Complaint, on or about
February 17, 2017, Kathleen Allison, the former Director of
the Division of Adult Institutions at the CDCR circulated a
memorandum authorizing prisoners serving life sentences to
submit CDCR 1046 family visitation applications. FAC at
¶ 9. Subsequently, during an April 28, 2017
“Inmate Family Council Meeting, ” Assistant
Warden Favila was “recorded as stating” that a
CDCR 1046 family visitation application should be processed
within thirty days of submission. Id. at ¶ 11.
11, 2017, Plaintiff submitted a family visitation application
to his correctional counselor, Defendant Angulo, for
visitation privileges with his “legal wife”
Catherine Clark-Perkins. Id. at ¶ 10. Plaintiff
alleges he subsequently questioned Defendant Angulo regarding
the status of the application. Id. at ¶ 11.
Defendant Angulo responded he had sixty days to process the
application. Id. Plaintiff then informed Defendant
Angulo he intended to file a CDCR 602 inmate appeal regarding
Defendant Angulo's “dilatory actions” and
“dereliction of duty.” Id. Plaintiff
alleges Defendant Angulo told Plaintiff filing an appeal
would only result in Plaintiff's application being
delayed and denied. Id. Plaintiff alleges he told
Defendant Angulo he would speak with Defendant Raybon about
this issue, to which Defendant Angulo allegedly responded:
“[I]t won't do you any good she's going to
agree with what I do.” Id.
August 15, 2017, Plaintiff's application was denied.
Id. at ¶ 12. Plaintiff alleges the denial
contains “misleading information.” Id.
Plaintiff further alleges Defendant Angulo submitted a CDCR
128-B General Chrono form “which fallaciously implied
Plaintiff was ineligible for family visit[ation]” by
citing “a series of ineligible factors” that
allegedly “[do not] apply to [P]laintiff's case
factors[.]” Id. Defendant Raybon then signed
Plaintiff's CDCR 1046 family visitation application
“stating she concurred” with Defendant
Angulo's actions in denying the application. Id.
at ¶ 13.
October 10, 2017, Defendant Bernal also signed and denied
Plaintiff's family visitation application. Id.
at ¶ 14. In doing so, Defendant Bernal allegedly
“did not refer Plaintiff's case factor to the
Warden as required and stated by Asst. Warden Sidhu[.]”
alleges he was “[a]t all times” entitled to
family visitation privileges and was denied “solely
because Plaintiff verbally expressed his intent to seek
redress” for Defendant Angulo's “dereliction
of duty.” Id. at ¶ 15. Plaintiff further
alleges Defendants knew there were no legal grounds for their
actions because Plaintiff was never found guilty of
“any division ‘A-2' offense” or
“other preclusions” but Defendants Raybon and
Bernal “as supervisors” took no steps to
“abate” Defendant Angulo's retaliatory
actions. Id. at ¶ 17.
seeks: (1) compensatory damages in the amount of $500, 000;
(2) punitive damages in the amount of $500, 000; (3)
attorneys' fees and costs; and (4) any other relief the
Court deems proper. Id. at ¶ 30.
to Fed. R. Civ. P 8(a), 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).
“[T]he pleading standard Rule 8 announces does not
require ‘detailed factual allegations,' but it
demands more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
motion to dismiss under Rule 12(b)(6) tests the legal
sufficiency of the plaintiff's claims. See
Fed.R.Civ.P. 12(b)(6). The issue is not whether the plaintiff
ultimately will prevail, but whether he has properly stated a
claim upon which relief could be granted. Jackson v.
Carey, 353 F.3d 750, 755 (9th Cir. 2003). In order to
survive a motion to dismiss, the 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 (quoting
Twombly, 550 U.S. at 570). If the facts alleged in
the complaint are “merely consistent with” the
defendant's liability, the plaintiff has not satisfied
the plausibility standard. Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 557). Rather,
“[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.” Iqbal, 556 U.S. at 678
(citing Twombly, 550 U.S. at 556).
plaintiff appears pro se, the court must be careful
to construe the pleadings liberally. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007); Thompson, 295
F.3d at 895. This is particularly important where the
petitioner is a pro se prisoner litigant in a civil
rights case. Easter v. CDC, 694 F.Supp.2d 1177, 1183
(S.D. Cal. 2010) (citing Ferdik v. Bonzelet, 963
F.2d 1258, 1261 (9th Cir. 1992)). When giving liberal
construction to a pro se civil rights complaint,
however, the court is not permitted to “supply
essential elements of the claim that were not initially
pled.” Easter, 694 F.Supp. at 1183 (S.D. Cal.
2010) (quoting Ivey v. Bd. of Regents of the Univ. of
Alaska, 673 F.2d 266, 268 (9th Cir. 1982)). “Vague
and conclusory allegations of official participation in civil
rights violations are not sufficient to withstand a motion to
dismiss.” Id. (quoting Ivey, 673 F.2d
court should allow a pro se plaintiff leave to amend
his or her complaint, “unless the pleading could not
possibly be cured by the allegation of other facts[.]”
Ramirez v. Galaza, 334 F.3d 850, 861 (9th Cir. 2003)
(internal quotation marks and citations omitted). Moreover,
“before dismissing a pro se complaint the district
court must provide the litigant with notice of the
deficiencies in his complaint in order to ensure that the
litigant uses the opportunity to amend effectively.”
Ferdik, 963 F.2d at 1261.
state a claim under § 1983, a plaintiff must allege
facts sufficient to show that: (1) a person acting under
color of state law committed the conduct at issue, and (2)
the conduct deprived the plaintiff of some “rights,
privileges, or immunities” protected by the
Constitution of the laws of the United States. 42 U.S.C.
Consideration Of ...