Burghardt v. L. Borges

         FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT PLAINTIFF'S CLAIMS AGAINST DEFENDANTS BORGES, RENTERIA, MONTOYA, OSUNA, GOMEZ, AND GONZALES BE DISMISSED FOR FAILURE TO STATE A CLAIM, WITH LEAVE TO AMEND; AND THAT ALL OTHER CLAIMS AND DEFENDANTS BE DISMISSED AS UNRELATED CLAIMS UNDER RULE 18(a), WITHOUT PREJUDICE TO FILING NEW CASES PERTAINING TO THE UNRELATED CLAIMS (ECF No. 13.)

          GARY S. AUSTIN UNITED STATES MAGISTRATE JUDGE.

         I. BACKGROUND

         Darryl Burghardt (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. On October 25, 2017, Plaintiff filed the Complaint commencing this action. (ECF No. 1.) On July 27, 2018, the court screened the Complaint and issued an order dismissing the Complaint for violation of Rules 8 and 18(a) of the Federal Rules of Civil Procedure, with leave to amend. (ECF No. 12.) On August 29, 2018, Plaintiff filed the First Amended Complaint, which is now before the court for screening. (ECF No. 13.)

         II. SCREENING REQUIREMENT

         The 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).

         A 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 standard. Id.

         III. SUMMARY OF FIRST AMENDED COMPLAINT

         Plaintiff is currently incarcerated at Salinas Valley State Prison in Soledad, California. The events at issue in the First Amended Complaint allegedly occurred at Corcoran State Prison (CSP) in Corcoran, 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) L. Borges, C/O J. Renteria, C/O J. Guerrero, K. Cribbs (Appeals Coordinator), D. Goree (CCII), Captain R. Broomfield, Sergeant F. Montoya, M. Sexton (Chief Deputy Warden), Gonzales (LVN), D. Osuna (LVN), Lieutenant (Lt.) A.V. Johnson, Sergeant T. Candia, Lt. A. Delacruz, J. C. Smith (Associate Warden), Sergeant D. B. Hernandez, C/O J. Gomez, Lt. J. E. Silva, A. Pacillas (CCII), Captain R. Pimentel (Appeals Examiner), C. Hammond (Appeals Examiner), and J. A. Zamora (Chief Appeals Coordinator). Plaintiff alleges as follows:

         On August 13, 2013, after Plaintiff submitted prison appeals against some prison officials defendant D. Goree retaliated against Plaintiff in handling another of Plaintiff's appeals regarding lost property by rejecting it for inapplicable reasons and discarding documents Plaintiff had enclosed to support his claims. This was done to hinder Plaintiff in resolving his property claim.

         On October 17, 2013, defendant K. Cribbs retaliated against Plaintiff because of appeals that Plaintiff had filed. He did this by discarding certain documents Plaintiff had provided in one of the appeals.

         On October 20, 2013, at Plaintiff's cell, Plaintiff presented an institutional form to defendant L. Borges for him to process through the institutional mailing system. Borges threatened to use pepper spray on Plaintiff, made vulgar comments, and refused to process the mail in retaliation for Plaintiff filing grievances. Borges departed Plaintiff's cell. Moments after Plaintiff complained out loud about Borges refusing to process his mail, defendant J. Guerrero came quickly to Plaintiff's cell and asked Plaintiff if he had broken one of the windows on Plaintiff's cell door. Plaintiff knew that the window was already broken when Guerrero housed Plaintiff in the cell the day before. Plaintiff started to respond. Guerrero began to process Plaintiff's mail and then demanded that Plaintiff pay for the window. Plaintiff told Guerrero that he wasn't going to pay for the window because he didn't damage it. Guerrero stormed off unhappily.

         On October 21, 2013, Plaintiff filed grievances about the broken window incident. On the same day, defendant A. Delacruz acted in concert with Guerrero and Borges in retaliation against Plaintiff for one of Plaintiff's appeals by restricting Plaintiff's access to an important state utensil (a cup), resulting in Guerrero falsifying a Rules Violation Report (RVR) against Plaintiff.

         On October 23, 2013, defendants Broomfield, Smith, Guerrero, Candia, Silva, and Delacruz conspired to silence the issue, retaliating against Plaintiff. Broomfield endorsed an RVR that Guerrero falsified against Plaintiff in retaliation for Plaintiff grieving misconduct by L. Borges. On the same date, defendant J. C. Smith retaliated against Plaintiff by endorsing the RVR falsified by Guerrero, in concert with Guerrero. Defendant J. E. Silva acted in concert with defendants Delacruz and Candia by classifying the falsified RVR against Plaintiff in retaliation against Plaintiff to cover up Borges's unlawful acts.

         On October 25, 2013, defendant T. Candia reviewed the RVR falsified against Plaintiff by J. Guerrero and found it to be true in retaliation against Plaintiff for an administrative appeal. This was in an attempt to help Delacruz cover up Guerrero's wrongdoing and acting in concert with Delacruz, Guerrero, and Borges.

         On October 26, 2013, Guerrero issued an RVR against Plaintiff out of retaliation to cover up Guerrero's conduct on October 20, 2019.

         On November 4, 2013, defendants Borges and Renteria worked together to batter Plaintiff and assault him with pepper spray while they were escorting Plaintiff. Renteria falsified the incident report against Plaintiff to try and cover up the acts against Plaintiff and in retaliation for Plaintiff filing grievances. That same day, in the B-section shower cell, defendant F. Montoya refused to allow Plaintiff to properly decontaminate from the pepper spray. Montoya also refused to provide Plaintiff with medical treatment for his injuries. Defendant D. Osuna conducted a medical evaluation of Plaintiff's injuries. Osuna acted in concert with Borges, Renteria, and Montoya by refusing to treat Plaintiff, refusing to allow Plaintiff to fully decontaminate, refusing to refer Plaintiff for medical treatment, and refusing to document rather than falsify what Plaintiff told Osuna on a form 7362 Health Care Services Request about the incident. Sometime later, Plaintiff began to experience complications from the injuries, but Osuna continued to deny him adequate medical care. Plaintiff submitted a 7362 Health Care Services Request to Osuna, but Osuna never processed or honored it. Defendant J. Gomez retaliated against Plaintiff by falsifying part of an incident report against Plaintiff to assist Borges and Renteria to cover up their attack on Plaintiff, for Plaintiff engaging in protected conduct. Gomez procrastinated in providing Plaintiff with adequate health care for the injuries Plaintiff sustained in the attack, thus inflicting more pain upon Plaintiff for requiring medical attention. Gomez had Plaintiff placed under a regular food tray restriction (paper tray status).

         On November 5, 2013, defendant Broomfield reviewed and approved an RVR which Borges falsified against Plaintiff to cover up Borges and Renteria assaulting Plaintiff, other officials' conspiracy to silence the issue, deprive Plaintiff of adequate medical care and further punish him. Broomfield retaliated by falsifying a report he submitted for one of Plaintiff's grievances and approving another report falsified by other officials in order to deny Plaintiff's copy request for his legal documents. Plaintiff explained to defendant Gonzales that Osuna deprived Plaintiff of adequate medical treatment and a chance to decontaminate from pepper spray since the day before. Plaintiff showed Gonzales the injuries he sustained in the attack and submitted a form 7362 Health Care Services Request to Gonzales, but she [Gonzales] refused to treat Plaintiff, have Plaintiff treated, have Plaintiff's 7362 form processed, acting in concert with D. Osuna against Plaintiff. Defendant J. C. Smith endorsed an RVR that Borges falsified against Plaintiff to cover up Borges and Renteria assaulting Plaintiff, in concert with Delacruz and Borges.

         On November 9, 2013, Borges issued an RVR against Plaintiff as a cover-up, to justify Borges's encounter with Plaintiff, and Delacruz and Montoya began to conspire to cover up Borges's attack.

         On November 11, 2013, Plaintiff complained in a grievance about defendant Bloomfield. Between November 24 and December 3, 2013, Broomfield approved a report against Plaintiff falsified by defendant D. B. Hernandez in order to deny another of Plaintiff's appeals.

         On November 24, 2013, defendant D. B. Hernandez interviewed Plaintiff about Plaintiff's appeal against defendant Borges. Sometime later, Hernandez retaliated against Plaintiff in concert with Borges by refusing to conduct a thorough investigation on Plaintiff's behalf or evaluate evidence Plaintiff provided so Hernandez could deny the appeal in a way that appeared justified.

         On November 26, 2013, Plaintiff filed a grievance concerning the November 4, 2013 incident. Defendant K. Cribbs retaliated against Plaintiff by forging Plaintiff's name, or working with D. Goree and/or A. Pacillas to forge Plaintiff's name, on a cover sheet to Plaintiff's 602 appeal against Borges, Renteria, and other officials, to cause the appeal to be cancelled. Plaintiff submitted an appeal complaining about Goree's acts. That same day, Plaintiff submitted a grievance against Montoya for his acts on November 4, 2013. Plaintiff also submitted a grievance against Gonzales for refusing him medical care on November 5, 2013. Plaintiff also submitted a grievance against Osuna for inadequate medical care. Plaintiff also submitted a grievance against J. Gomez for placing Plaintiff on paper tray status.

         On November 30, 2013, defendant A. V. Johnson acted as Senior Hearing Officer at a hearing against Plaintiff on an RVR falsified by Guerrero. Guerrero testified against Plaintiff. Johnson acted with Guerrero for Borges by refusing to let Plaintiff's favorable evidence be presented, and admitted the RVR record so Johnson could render a conviction that appeared justified.

         On December 3, 2013, Plaintiff filed an appeal complaining about K. Cribbs's acts on October 13, 2013.

         On December 5, 2013, Plaintiff complained about defendant Broomfield in another appeal. On the same day, Plaintiff complained in a grievance about the November 30, 2013 RVR hearing. Plaintiff also complained about T. Candia in an appeal about Candia's conduct on October 25, 2013. Plaintiff also complained about Delacruz in an appeal about Delacruz's conduct on October 25, 2013. Plaintiff also complained about J. C. Smith in an appeal regarding Smith's conduct on October 23, 2013. Plaintiff also complained about J. E. Silva in a grievance about Silva's conduct on October 23, 2013.

         On December 11, 2013, Plaintiff submitted an appeal to the CDCR's Chief Inmate Appeals Branch. Defendant R. Pimentel examined the grievance regarding A. Pacillas and M.

         Sexton approving of D. Goree deliberately misstating Plaintiff's grievance concerning Borges and Renteria attacking Plaintiff.

         On December 16, 2013, defendant Johnson acted as Senior Hearing Officer at a hearing on an RVR against Plaintiff that was falsified by Borges. Johnson acted with Borges, Montoya, and Delacruz by refusing to let Plaintiff's favorable evidence to be presented and admitted the RVR's record so Johnson could render a conviction that appeared justified.

         On December 17, 2013, Plaintiff submitted another appeal complaining about K. Cribbs's conduct on November 26, 2013. Plaintiff also submitted another appeal regarding D. Goree's conduct on November 26, 2013.

         On December 28, 2013, defendant M. Sexton retaliated against Plaintiff by approving a false report by defendants Hernandez and Broomfield against Plaintiff concerning one of Plaintiff's grievances, acting in concert with defendants Hernandez and Broomfield to keep Plaintiff from seeking relief from the cruel and unusual conditions Plaintiff endured.

         On January 7, 2014, defendant A. Pacillas interviewed Plaintiff about his grievance concerning defendants Cribbs and Goree interfering with a grievance.

         On January 8, 2014, defendant Sexton acted in concert with A. Pacillas concerning another of Plaintiff's grievances by approving a report falsified by Pacillas. Pacillas retaliated against Plaintiff by deliberately denying Plaintiff's requests in a grievance, mostly based on a form with ...