United States District Court, E.D. California
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.)
S. AUSTIN UNITED STATES MAGISTRATE JUDGE.
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.)
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).
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
SUMMARY OF FIRST AMENDED COMPLAINT
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:
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.
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.
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.
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.
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.
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.
October 26, 2013, Guerrero issued an RVR against Plaintiff
out of retaliation to cover up Guerrero's conduct on
October 20, 2019.
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).
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.
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
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.
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.
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.
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
December 3, 2013, Plaintiff filed an appeal complaining about
K. Cribbs's acts on October 13, 2013.
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.
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.
approving of D. Goree deliberately misstating Plaintiff's
grievance concerning Borges and Renteria attacking Plaintiff.
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.
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.
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
January 7, 2014, defendant A. Pacillas interviewed Plaintiff
about his grievance concerning defendants Cribbs and Goree
interfering with a grievance.
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