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Pekrins v. Angulo

United States District Court, S.D. California

June 27, 2019

GARY RONNELL PERKINS, Plaintiff,
v.
C. ANGULO, T. RAYBON; J. BERNAL, Defendants.

          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

         This 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 GRANTED.

         PROCEDURAL BACKGROUND

         On May 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 (“Compl.”).

         On May 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.

         On 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.

         On 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.”).[1] Defendants did not file a Reply. See Docket.

         COMPLAINT ALLEGATIONS

         Because 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).

         According 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.

         On July 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.

         On 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.

         On 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[.]” Id.

         Plaintiff 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.

         Plaintiff 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.

         LEGAL STANDARD

         Pursuant 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, the-defendant-unlawfully-harmed-me-accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

         A 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).

         When a 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 at 268).

         The 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.

         To 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. § 1983.

         DISCUSSION

         I. Consideration Of ...


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