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Lipsey v. Hand-Ronga

United States District Court, E.D. California

November 5, 2019

CHRISTOPHER LIPSEY, JR., Plaintiff,
v.
N. HAND-RONGA, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE BE DISMISSED, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM (ECF NO. 32.)

          GARY S. AUSTIN, UNITED STATES MAGISTRATE JUDGE

         I. BACKGROUND

         Christopher Lipsey, Jr. (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on December 19, 2017. (ECF No. 1.) On April 9, 2018, Plaintiff filed the First Amended Complaint as a matter of course. (ECF No. 12.) On September 24, 2018, the court dismissed the First Amended Complaint for failure to state a claim, with leave to amend. (ECF No. 15.) On December 3, 2018, Plaintiff filed the Second Amended Complaint. (ECF No. 18.)

         On February 7, 2019, Plaintiff lodged a proposed Third Amended Complaint which the court construed as a request for leave to amend. (ECF No. 21.) On February 13, 2019, the court granted Plaintiff leave to amend and the Third Amended Complaint was filed on February 12, 2019. (ECF Nos. 22, 23.)

         On August 7, 2019, the court screened the Third Amended Complaint and entered findings and recommendations to dismiss this case, with prejudice, for failure to state a claim. (ECF No. 28.) On August 26, 2019, Plaintiff filed objections to the findings and recommendations and lodged a Fourth Amended Complaint. (ECF Nos. 29, 30.) On September 16, 2019, the court vacated the findings and recommendations and granted Plaintiff leave to amend. (ECF No. 31.) The Fourth Amended Complaint was filed on August 26, 2019. (ECF No. 32.)

         The Fourth Amended Complaint is now before the court for screening. 28 U.S.C. § 1915A.

         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 FOURTH AMENDED COMPLAINT

         Plaintiff is presently incarcerated at Corcoran State Prison in Corcoran, California, where the events at issue in the Fourth Amended Complaint allegedly occurred. Plaintiff names as defendants N. Hand-Ronga (psychologist), C. Bell (Chief Executive Officer), D. Davey (Warden), S. Kernan (Secretary, CDCR), and A. Venetis-Colon (Senior Psych Supervisor) (collectively, “Defendants”).

         Plaintiff alleges as follows:

         While at Corcoran State Prison SHU, [1] Plaintiff was brought to the rotunda in Building 4A1R or 4A1L, buildings specifically for inmates with mental illness. Dr. Hand-Ronga came to Plaintiff with questions that Plaintiff did not want to answer at the time, so after politely answering the first basic questions Plaintiff stopped answering the more private questions related to why Plaintiff felt suicidal (family issues). Plaintiff told Hand-Ronga, “That's enough, I'm done having you pick my brain, go away.” 4ACP at 2-3. Dr. Hand-Ronga got visibly upset and left. Plaintiff was not written up for anything, including being disrespectful or a sexual offense; however, Dr. Hand-Ronga put Plaintiff down as a sex offender.

         Plaintiff put his mail out as usual, sending some medical records for his family to keep for him. Somehow other inmates got ahold of the mail. On the medical records it showed that Plaintiff had committed a sex offense. The next day, every time Plaintiff left the cell, inmates would yell out “Amber Alert, ” which is what inmates do to known child molesters. 4ACP at 3. Plaintiff had never been accused of committing any sex offense prior to this. After months of protest, it was removed.

         Plaintiff has been called a rapist by officers and nurses when he speaks to them in front of inmates, when the office is not doing what it is supposed to do, when nurses are not passing out medications on time, or when nurses repeatedly fail to bring Plaintiff the correct dosage. None of this occurred prior to Plaintiff being labelled a sex offender. Plaintiff received no hearing prior to being labelled a sex offender. Plaintiff's family was informed by someone (besides the documents Plaintiff sent) that people think he is a sex offender.

         Plaintiff engaged in protected conduct, refusing medical treatment (refusing to talk to a psychologist). The same day, Dr. Hand-Ronga labeled Plaintiff a sex offender without due process. This was on the same day that Plaintiff told her (Hand-Ronga) that he did not want her picking his brain any longer. Plaintiff has been reluctant to tell the psychiatrist the truth for fear of some kind of retaliation. Plaintiff alleges that the retaliatory action did not reasonably advance a legitimate correctional goal because Plaintiff is likely to be attacked by a prisoner who was in the SHU with him, now that he is in the general population, which will require officers to use force risking their lives to protect Plaintiff. What she (Hand-Ronga) did has placed Plaintiff's life and the institution's safety and security at risk. That type of accusation follows prisoners their entire life. Plaintiff has never been accused or convicted of a sex offense.

         Plaintiff filed a government claim on August 5, 2017, against defendant D. Davey, Warden of Corcoran SHU, and S. Kernan, Secretary of the CDCR. On October 22, 2017, Plaintiff filed an amended claim adding N. Hand-Ronga's supervisor, A. Venetis-Colon. The Board considered Plaintiff's claims to be too complex and denied them.

         Defendants Davey and Kernan failed to establish a practice, policy, or procedure for inmates to send out mail in a secure manner. Currently, inmates with mail that cannot fit through a small slit in the tray slot must place their mail under the door, which Plaintiff did during April-June 2017.

         Inmates in the SHU do what is called “fishing.” 4ACP at 7. Almost every inmate keeps a long strip of line made out of laundry and places some kind of weight (envelope with papers in it) on the end so that when officers aren't walking by they can quickly “fish” non-contraband or contraband items with each other. “Fishing” in an envelope from one cell to another can take less than 2 minutes. This is what happened to the medical documents Plaintiff was mailing to his family around April-June 2017. Inmates in the SHU usually “fish” all day, so they routinely “fish” in another inmate's mail, whether accidentally or on purpose. In some places there are slabs of concrete or metal directly at the bottom of the door to prevent inmates from “fishing;” however, there aren't any in the building Plaintiff was in, so the Warden and Secretary must be aware of the problem.

         Prior to the night his mail was “fished” by another inmate, Plaintiff was not subject to inmates yelling “Amber Alert” when he left his cell. However, after an officer was given Plaintiff's mail by an inmate, who put it in the tray slot, inmates began yelling “Amber Alert” every time he left the cell. Inmates on the yard, with whom Plaintiff usually converses, told other inmates not to talk to him because he's a “chomo.” “Chomo” is a prison slang term for a child molester. There are official rules prohibiting “fishing” and punishing inmates for “fishing.” Defendant Hand-Ronga is considered a health care provider and she subjected Plaintiff to pain, suffering, and inconvenience by labeling him a sex offender on March 20, 2017.

         On or about October 5, 2017, defendants C. Bell and A. Venetis-Colon ruled that defendant N. Hand-Ronga's actions were not in violation of policy. Their ruling was deceitful and intended to mislead Plaintiff, in violation of Code of Civil Procedure § 1711, and to infringe upon Plaintiff's right to file a suit, in violation of § 1708. under Civil Code § 52.1. Plaintiff also claims ...


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