United States District Court, C.D. California
ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE
HONORABLE KENLY KIYA KATO, UNITED STATES MAGISTRATE JUDGE.
Gregory Franklin (“Plaintiff”), proceeding
pro se and in forma pauperis, filed a First
Amended Complaint (“FAC”) pursuant to 42 U.S.C.
§ 1983 (“Section 1983”) setting forth twelve
claims against seventeen defendants in their individual and
official capacities and alleging each defendant violated his
First, Eighth, and Fourteenth Amendment rights. For the
reasons discussed below, the Court dismisses the FAC with
leave to amend.
IN THE COMPLAINT
19, 2019, Plaintiff, an inmate at California State Prison -
Los Angeles County (“CSP-LAC”), constructively
filed a Complaint against twenty-three
defendants in their individual and official capacities
alleging each defendant violated his First, Eighth, and
Fourteenth Amendment rights. ECF Docket No.
(“Dkt.”) 1. On August 27, 2019, the Court
dismissed the Complaint with leave to amend finding (a) the
Eleventh Amendment bars any claims for monetary damages
against the defendants in their official capacity; and (b)
the Complaint improperly joined distinct claims and failed to
comply with Federal Rule of Civil Procedure 8. Dkt. 5.
October 15, 2019, Plaintiff constructively filed the instant
FAC, which appears to name the following seventeen defendants
in their individual and official capacities: (1) Lieutenant
R. Franklin, (2) Lieutenant A.H. Martinez, (3) Correctional
Officer J. Hernandez, (4) Correctional Officer E. Gollette,
(5) Correctional Counselor II J. Tingely, (6) Correctional
Officer E. Delgadillo, (7) Captain S. Rivera, (8) Sergeant R.
Aguirre, (9) Correctional Officer Drayton, (10) Correctional
Officer J. Makarade, (11) Correctional Officer J. Resendiz,
(12) Lieutenant I. Mijares, (13) Correctional Counselor S.
Nave, (14) Correctional Officer Rios, (15) F. Villalobos,
(16) Correctional Officer K. Penate, and (17) Correctional
Officer D. Moore (“Defendants”). Dkt. 8 at 3-9.
sets forth the following allegations:
February 13, 2012, Plaintiff arrived at CSP-LAC after being
transferred from Calpatria State Prison. Id. at 23.
Beginning in 2005, while at Calpatria State Prison, Plaintiff
filed numerous grievances and civil rights lawsuits against
various correctional officers. Id. at 10-23.
Plaintiff alleges numerous individuals responded by
retaliating against him and that retaliatory acts have
continued from 2005 through the present. Dkt. 8-1 at 5.
point after Plaintiff's transfer to CSP-LAC, officers
Rodriguez and Moses, who do not appear to be named as
defendants in the FAC, told Plaintiff they were placing
another inmate in Plaintiff's cell. Id. at 5.
Plaintiff stated he “needed to see the prisoner before
he [would] accept him as a cellmate.” Id.
Before Plaintiff met the proposed cellmate, however,
Plaintiff was placed in an administrative housing unit for
refusing a cellmate. Id. at 5, 7. Plaintiff states:
“There was a disciplinary hearing and I was found
guilty, and for 60 days Plaintiff did not receive  outdoor
or inside recreation confining Plaintiff to his cell because
he had no work assignment.” Id. at 7.
Plaintiff alleges defendant Franklin (a) “violated due
process when he failed to provide Plaintiff a disciplinary
hearing, but impose[d] punishment upon him”; (b)
“subjected Plaintiff to cruel and unusual punishment
when he arbitrarily confined Plaintiff to his cell for 60
consecutive days”; and (c) violated the First Amendment
when he “committed the unconstitutional violations for
8, 2015, officers Rodriguez and Moses again told Plaintiff an
inmate had been assigned to his cell. Id. at 6.
Plaintiff told them “he don't want no cellie that
is violent and psychotic.” Id. Plaintiff was
given a rule violation for “refusing a cellie.”
Id. Defendant Martinez, the hearing officer for
Plaintiff's disciplinary hearing, refused to call
Plaintiff's requested witnesses and found Plaintiff
guilty of the rule violation. Id. As a result,
Plaintiff was confined to his cell for 90 consecutive days
immediately following the previous 60 days for a total of
five months. Id. at 6, 8.
21, 2015, defendant Moore packed Plaintiff's property and
placed it in Release and Receiving for Plaintiff to receive
when he was released from administrative segregation.
Id. at 11. On August 17, 2015, Plaintiff was
released from administrative segregation and received his
property. Id. His legal work, however, was missing
and several inmates told Plaintiff they saw a bundle of legal
work on the dayroom floor after Plaintiff's property was
taken to Release and Receiving. Id.
Plaintiff alleges a group grievance regarding denial of
adequate fresh air and recreation he first submitted on May
11, 2015 was repeatedly screened out until he was placed in
the administrative segregated housing on July 21, 2014.
Id. at 3. Plaintiff alleges “the
administration tried to get the next person on the group
[grievance] to drop the [grievance], [but] he would not and
the [grievance] was granted July 28, 2015 but wasn't
enforce[d] until Plaintiff got out of the hole, August
September 13, 2015, Plaintiff was placed on
“C-status” (i.e., “privilege group
C”) for the two rule violations for refusing “a
cellie.” Id. at 8. On November 1, 2015,
Plaintiff sent a request to defendants Nave and Tingely,
correctional counselors, to remove Plaintiff from C-status.
Id. Both defendants Nave and Tingely “made
comments about Plaintiff['s] pending lawsuits, ”
denied him a hearing regarding his removal from C-status, and
refused to take Plaintiff off C-status. Id.
October 11, 2015, Plaintiff filed a lawsuit against five
CSP-LAC employees, including defendant Martinez. Id.
at 9. On October 19, 2017, before Plaintiff could file his
opposition to the motion to dismiss his second amended
complaint filed in that action, defendant Martinez supervised
cell searches in the building where Plaintiff was housed.
Id. at 9-10. After the search, Plaintiff's food
items were missing. Id. The cell search receipt
stated defendant Gollette and Hernandez had conducted the
search. Id. at 10. Defendant Gollette “had
previously made comments about Plaintiff['s]
October 19, 2016 and October 10, 2017, during his annual
classification hearings, Plaintiff's requests to be
transferred to a lower security prison, have “single
cell status”, and to enter “rehabilitative work
programs” were denied. Id. at 12. Counselor
Tingely was the chairperson for the annual classification on
October 19, 2016 and defendant Rivera was the chairperson on
October 10, 2017. Id.
days after Plaintiff's annual
classification and one day after Plaintiff wrote a
grievance challenging the denial of his request for single
cell status, officer Penata, who does not appear to be named
as a defendant in the FAC, wrote Plaintiff a rule violation
for refusing “a cellie.” Id. at 13.
Defendant Villalobos found Plaintiff guilty of the rule
unspecified date, Plaintiff gave defendant Delgadillo a
complaint to mail to the Government Claim Board regarding
loss of personal property, but the complaint never reached
the Government Claim Board and it was not logged into the
mailroom. Id. at 14. On August 14, 2017 and November
2, 2017, defendant Delgadillo refused to pick up
Plaintiff's mail. Id. at 14-15.
January 7, 2018, defendant Aguirre interviewed Plaintiff
regarding Plaintiff's grievance against defendant
Delgadillo. Id. at 15. During the interview,
defendant Aguirre told Plaintiff he could give Plaintiff a
“cellie” and if Plaintiff refused, Plaintiff
would be disciplined. Id. Defendant Aguirre then
asked Plaintiff whether he wanted to withdraw the grievance
against defendant Delgadillo. Id. Plaintiff refused
to withdraw the grievance. Id. at 15-16. The next
day, defendant Aguirre wrote Plaintiff up for refusing a
“cellie, ” resulting in 90 days of lost
privileges, disqualification to lower level transfer, and
subsequent placement on C-status. Id. at 16.
February 12, 2018 and February 19, 2018, defendant Drayton
refused to sign Plaintiff's laundry slip to have
Plaintiff's laundry returned to him and stated
“until Plaintiff take[s] a cell-mate he will not have
his laundry replaced.” Id. at 17. As a result,
Plaintiff slept on a dirty sheet for “numerous
weeks” and his “body was itching
April 2, 2018, defendant Drayton moved Plaintiff to another
building where defendants Resendiz and Makarade told
Plaintiff he would be moving into a cell with another inmate.
Id. at 17-18. Plaintiff refused. Id. at 18.
Defendants Resendiz and Makarade handcuffed Plaintiff and
took him to the cage in the gym to await being sent to
administrative segregation. Id. Defendant Mijares
interviewed Plaintiff regarding his refusal to share a cell.
Id. Plaintiff was then placed in administrative
segregation from April 2, 2018 to April 14, 2018.
Id. at 19.
April 14, 2018, defendant Rios took Plaintiff's
appliances because Plaintiff was being placed on C-status.
Id. On July 3, 2018, Plaintiff was released from
C-status and asked defendant Rios for his appliances.
Id. at 19-20. Receiving and Release told Plaintiff
defendant Rios had to retrieve the appliances, while
defendant Rios told Plaintiff other officers had to retrieve
them. Id. at 20. On August 7, 2018, Plaintiff's
appliances were returned to him. Id.
seeks punitive damages and injunctive relief requiring: (a)
the Court oversee “all present and future rule
violations”; (b) the Court review all complaints
brought by Plaintiff within 72 hours; (c) prior notification
to the Court and a designated family member before moving
Plaintiff from general population to administrative
segregation; (d) single cell status; and (e) “[i]n the
event Plaintiff has to be remove[d] from prison and
transported to courts, hospital, etc., [a] video recording of
the entire trip.” Id. at 21.