Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Gil v. Warden

United States District Court, E.D. California

July 11, 2019

RUBEN GIL, Plaintiff,
v.
JOHN DOE WARDEN, et al., Defendants.

          FINDINGS AND RECOMMENDATION RECOMMENDING DISMISSAL OF THIS ACTION (ECF NO. 13) FOURTEEN (14) DAY DEADLINE

          BARBARA A. MCAULIFFE UNITED STATES MAGISTRATE JUDGE.

         I. Background

         Plaintiff Ruben Gil is a former state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.

         On May 17, 2019, the Court found that Plaintiff's complaint failed to comply with Federal Rules of Civil Procedure 8, 18, and 20, and also failed state any cognizable claim for relief. (ECF No. 13.) The Court granted Plaintiff thirty days to file either a first amended complaint or a notice of voluntary dismissal. (Id. at 15.) Plaintiff was expressly warned that if he failed to file an amended complaint in compliance with the Court's order, this Court would recommend dismissal of this action, with prejudice, for failure to state a claim and failure to obey a court order. (Id.) The deadline for Plaintiff to file either a first amended complaint or a notice of voluntary dismissal expired on June 19, 2019, and he has not complied with the Court's order or otherwise communicated with the Court. Accordingly, the Court recommends dismissal of this action for the reasons discussed below.

         II. Failure to State a Claim

         A. Screening Requirement and Standard

         The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). Plaintiff's complaint, or any portion thereof, is subject to dismissal if it is frivolous or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b).

         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)). 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 survive screening, Plaintiff's claims must be facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969.

         B. Plaintiff's Allegations

         Plaintiff alleges the events in the complaint occurred while Plaintiff was housed at the California State Prison in Corcoran. Plaintiff names the following defendants: (1) John Doe Warden, (2) John Doe Deputy Warden, (3) Captain Gonzales, (4) Lieutenant Munoz, (5) Sergeant Bueno, (6) A. Johnson, Counselor, (7) Smith, Counselor, (8) T. Wyman, Counselor, (9) Alvarado, Counselor. Plaintiff also names other John Does who are correctional officers and John Does who are counselors. All of these defendants are sued in their official and individual capacities. Plaintiff also names Correctional Officer Acosta who is sued in his individual capacity.

         Plaintiff alleges that he arrived at Corcoran on November 7, 2017. He submitted a grievance to be protected from assault, and he still got assaulted. Plaintiff alleges that he received a ducat to work at the “central hospital.” Defendants were waking Plaintiff at 3:00 a.m. and not letting him out to work in a harassing way, saying it was because he filed grievances. After this, staff continued to harass and threaten plaintiff for submitting C-22 forms to supervisors and the Sergeant for misconduct of staff. Plaintiff instead received a Rules Violation Report (RVR) for informing of staff of misconduct. Plaintiff was fired from his job assignment. Staff were throwing away Plaintiff's grievances and not letting him exhaust and moved Plaintiff from cell to cell. Defendants were also holding Plaintiff's property for a long time.

         After these events, Plaintiff was assaulted by staff in front of the education department. An officer did not intervene. Plaintiff was being escorted by Officer S. Zarate when Officer Martinez used force maliciously and sadistically.[1] Plaintiff was not taken to evaluation for his injuries for 7 days. Plaintiff had informed the warden and superintendents he needed to be protected but they have failed to take action.

         Plaintiff was issued a false Rules Violation Report at the central hospital. Defendants refused to call any witnesses or extract video surveillance cameras. Plaintiff was found guilty. Plaintiff filed administrative appeal, but Lieutenant Munoz denied witnesses and exculpatory evidence. Plaintiff's administrative appeal then disappeared before it was sent to the third level.

         Defendants did an inappropriate and incomplete investigation of the excessive force and denied plaintiff all rights to a fair defense.

         Claim I

         Plaintiff alleges that all Defendants used force against Plaintiff and failed to intervene and have been harassing Plaintiff in violation of the Eighth Amendment.

         Claim II

         Plaintiff alleges that the Warden and Superintendents failed to take disciplinary or other action against staff who have harassed Plaintiff or who used excessive force against Plaintiff and failed to protect him, in violation of the Eighth Amendment.

         Claim III

         Lt. Munoz failed to call witnesses and denied the video for exculpatory evidence in violation of Plaintiff's Due Process rights.

         Claim IV

         The Counselor Defendants, T. Wyman, A. Johnson, Alvarado, M. Oliveira, Smith were not assigning Plaintiff the proper placement for Plaintiff's rehabilitation because the prison conditions that counselors put Plaintiff were interfering with parole opportunities and good time statutes which postponed parole or other release eligibility in violation of Due Process.

         Claim V and VI

         All Defendants failed to take action to protect plaintiff from assault and correct actions of their subordinates. Defendant failed to launch an investigation of the staff conduct.

         Plaintiff seeks as relief declaratory relief, injunctive relief, and compensatory and punitive damages.

         C. Discussion

         1. Federal Rule of Civil Procedure 8

         Pursuant to Federal Rule of Civil Procedure 8, 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). 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.” Iqbal, 556 U.S. at 678 (citation omitted). 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, 127 S.Ct. at 1974). While factual allegations are accepted as true, legal conclusions are not. Id.; see also Twombly, 550 U.S. at 556-557.

         Plaintiff's amended complaint is short, but it is not a plain statement of his claims. Plaintiff's allegations are conclusory, lacking dates, names and other necessary factual information. Instead, Plaintiff's complaint details the filing of numerous grievances, but fails to provide the factual underpinnings of those grievances. Plaintiff alleges he was attacked but does not state what happened or who was involved. In any amended complaint, Plaintiff should briefly and succinctly state what happened, when it happened and who was involved. The claims in this action do not contain sufficient factual matter to state a claim for relief that is plausible on its face.

         2. Linkag ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.