Franklin v. R. Franklin

          ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND

          HONORABLE KENLY KIYA KATO, UNITED STATES MAGISTRATE JUDGE.

         I.

         INTRODUCTION

         Plaintiff 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.

         II.

         ALLEGATIONS IN THE COMPLAINT

         On July 19, 2019, Plaintiff, an inmate at California State Prison - Los Angeles County (“CSP-LAC”), constructively filed^[1] 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.

         On 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.

         The FAC sets forth the following allegations:

         On 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.

         At some 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 retaliation.” Id.

         On July 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.

         On July 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.

         Meanwhile, 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 2015.” Id.

         On 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.

         On 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] lawsuits.” Id.

         On 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.

         Ten days after Plaintiff's annual classification^[2] 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 violation. Id.

         On an 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.

         On 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.

         On 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 excessively.” Id.

         On 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.

         On 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.

         Plaintiff 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.

         III.

         STANDARD ...