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Dillingham v. Garcia

United States District Court, E.D. California

December 4, 2019

JERRY DILLINGHAM, Plaintiff,
v.
F. GARCIA, Defendant.

          FINDINGS AND RECOMMENDATION TO DENY PLAINTIFF'S MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT, GRANT IN PART AND DENY IN PART DEFENDANT'S MOTION TO DISMISS, AND DENY PLAINTIFF'S MOTION FOR ORDER DIRECTING DEFENDANT TO FILE ANSWER (ECF NOS. 23, 35, 84)

         Jerry Dillingham (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. Before the Court are Plaintiff's motion for leave to file an amended complaint, Defendant Garcia's motion to dismiss the Complaint, and Plaintiff's motion for an order directing Defendant to file an answer. For the reasons described below, the undersigned recommends that Plaintiff's motion for leave to file an amended complaint be denied, Defendant Garcia's motion to dismiss be granted in part and denied in part, and Plaintiff's motion for an order directing Defendant to file an answer be denied.

         I. BACKGROUND

         Plaintiff filed the Complaint commencing this action on April 30, 2018. (ECF No. 1). On September 7, 2018, the Court issued a screening order, allowing Plaintiff to choose how he wanted to proceed with this case. (ECF No. 12). The Court allowed Plaintiff to: “1) File an amended complaint; 2) Notify the Court in writing that he is willing to go forward only with the claims against Defendant Garcia for conspiracy, retaliation in violation of the First Amendment, and excessive force and failure to protect in violation of the Eighth Amendment; or 3) Notify the Court in writing that he wishes to stand on his complaint, subject to this Court issuing findings and recommendations consistent with this order to the assigned district judge.” (ECF No. 12 at 2).[1]

         On October 3, 2018, the Court granted Plaintiff's motion for a thirty-day extension of time to file an amended complaint. (ECF Nos. 13, 15). On November 26, 2018, Plaintiff filed objections to the Court's “Report and Recommendations.” (ECF No. 16). The Court construed this filing as Plaintiff choosing to stand on his Complaint, subject to the Court issuing findings and recommendations consistent with the screening order to the District Judge. (ECF No. 17 at 2). Accordingly, on November 28, 2018, the Court issued findings and recommendations “recommending that this case proceed on Plaintiff's claims against Defendant Garcia for conspiracy, retaliation in violation of the First Amendment, and excessive force and failure to protect in violation of the Eighth Amendment, and that all other claims and defendants be dismissed.” (Id.).

         On December 26, 2018, Plaintiff filed a motion for extension of time to file an amended complaint. (ECF No. 18). On January 2, 2019, Plaintiff filed objections to the findings and recommendations. (ECF No. 20). On January 10, 2019, the District Judge adopted the November 28, 2018 findings and recommendations in full, ordering that this action proceed “on Plaintiff's claims against Defendant Garcia for conspiracy, retaliation in violation of the First Amendment, and excessive force and failure to protect in violation of the Eighth Amendment.” (ECF No. 21 at 4). The District Judge also denied Plaintiff's motion for extension of time to file an amended complaint because it was untimely and upon review, Plaintiff's proposed amended complaint appeared “to suffer from most of the same defects as the original complaint.” (Id.).

         On February 1, 2019, Plaintiff filed a motion for leave to file an amended complaint and lodged a proposed First Amended Complaint. (ECF Nos. 23, 24). Defendant Garcia filed an opposition, and Plaintiff filed a reply. (ECF Nos. 33, 39).

         On April 22, 2019, Defendant Garcia filed a motion to dismiss Plaintiff's claims for excessive force and conspiracy. (ECF No. 35). Plaintiff filed an opposition, and Defendant Garcia filed a reply. (ECF Nos. 42, 43).

         On November 18, 2019, Plaintiff filed a motion for the Court to issue an order directing Defendant Garcia to file an answer to the original Complaint. (ECF No. 84).

         II. SUMMARY OF PLAINTIFF'S COMPLAINT[2]

         Plaintiff alleges that, on or about September 24, 2016, Defendant Marsh approved Plaintiff to be housed in Building D1, the American with Disabilities (“ADA”) Housing Unit. Within that Housing Unit, supervising officers, including Defendant Sherman and Defendant Marsh, tacitly allowed a “Housing Unit Cell Feeding Meals Service.” As part of this policy, Plaintiff was not allowed to walk to the dining hall. Instead, breakfast and dinner meals were sent in on food carts.

         The description of these meals is difficult to understand. From the best the Court can understand, Plaintiff complains that inmates were permitted to serve the meals to Plaintiff in his cell. For example, Plaintiff alleges that certain defendants “Abdicated to these convict's Housing Unit cell meal feeding serving service undirectly [sic] unsupervised. Sanctioning those convicts to diciplinarly [sic] run the unit housing, security cell shelter feeding meals service.” (ECF No. 1, p. 5). Plaintiff alleges that certain defendants would tell inmates to serve the food that then “go[] into the Bldg. D1 staff office. Close's [sic] the door. Turn's [sic] off the light, sit's [sic] down and relax!” (Id.). /// Plaintiff appears to claim that the inmate servers would sometimes take the tray back from certain inmates after several seconds, and put the tray right back on the food cart.

         Plaintiff alleges that using inmates as food servers was dangerous because the inmates receiving food were informants, inmates who filed complaints against guards, inmates convicted of sex offenses, and/or rival gang-members. Plaintiff alleges that the inmate servers had access to caustic cleaning substances that could be put in the food. Plaintiff feared being poisoned. He refused meals. Plaintiff does not allege that this happened, or that any of the food he received was actually poisoned.

         On December 8, 2016, Plaintiff alerted the housing unit sergeant of this policy. Plaintiff also alerted Defendant Ibarra.

         On January 5, 2017, Plaintiff filed an emergency complaint based on the ADA with the warden and associate warden. Plaintiff cites to a “granted appeal, ” which is not attached to the complaint. Plaintiff claims that the response to his appeal stated that “Defendants Alvarado, Hyatt, Abbott et al., knew that they were practicing violating Housing Unit Cell Shelter Custody feeding meals safety security protocols with respect to one or more of the Exhibit #B fact's [sic], actions requested, issues appealed.” (ECF No. 1, p. 8). Plaintiff similarly claims that the second level review concluded that certain defendants knowingly violated meal policies and that “conditions of confinement caused pain, suffering issues raise.” (Id.). Plaintiff also cites to another exhibit, which is not attached to the complaint.

         On January 4, 2017, Defendants sent two inmates to Plaintiff's cell, who identified themselves as “Convict Council Advisory Committee Members … from Bldg. D2 and D3.” They stated that they try to resolve inmate issues. They said Plaintiff had filed a grievance about allowing “tier tender inmates to unsupervisedly [sic] feed inmates.” (ECF No. 1, p. 9). They said Plaintiff's grievance was affecting the other building units and that correctional officers were very angry at Plaintiff because Plaintiff's 602 would force officers to handle feeding meals to inmates themselves. They accused Plaintiff of being a snitch. They told Plaintiff that “until the 602 writer is silenced Bldg. Custody assign officer are going to start making it hard on the Bldg. Convict's, Tier Tender's.” (Id.). Plaintiff understood this to mean that the defendant correctional officers were very angry because they just wanted to sleep, watch tv, and play games instead of doing work.

         Plaintiff alleges that there is a long standing and well-known practice at the prison of racketeering through Defendants using the prison for private gain. Plaintiff alleges that “[b]y indirectly or directly solicit [sic] the facility D-Housing unit cell assigned Bldg.'s 1-5 convicts, teir [sic] tenders, convict's [sic] et al., solicited them to kill, injure, harm Plaintiff chill [sic] to stop his exposing their pervasive life threatening potentially dangerous [practices].” (ECF No. 1, p. 10).

         Shortly after January 26, 2017, Plaintiff was transferred to Bldg. D3. Plaintiff alleges this was done to cover up the practices he had exposed. Plaintiff alleges that he “suffered 39 days of being excluded from Bldg. D3 food feeding meals service, ” “[a]s a result of defendant's Ibarra, Marsh, Iverson, Kernan, AW Smith, Sherman et al., policy, custom, or practice of deliberately indifferently refusing to act to protect plaintiff.” (Id. at 11). Plaintiff appears to allege that he refused to eat any meals during this time.

         On February 28, 2017, Plaintiff filed an administrative grievance (again, Plaintiff states that it is attached to the complaint, but it was not attached). Plaintiff alleges that this grievance was granted and that the response to his appeal stated that Defendant Garcia was liable for Plaintiff's pain and suffering because he violated California Department of Corrections and Rehabilitation policies.

         Around March 3, 2017, investigative personnel alerted Defendant Garcia that Plaintiff had filed a grievance against him. Plaintiff alleges that “on about 3/3/17 or 3/4/17 or 2/28/17, Defendant Garcia ‘threaten [sic] Plaintiff [sic] life.' Threaten [sic] to cause Plaintiff greate [sic] bodily injury if Exhibit #B, Exhibit #C, grievance's [sic] cause's [sic] any problems for Garcia & his maintaining his Bldg. practicies [sic] Racketeering.” (ECF No. 1, p. 12). This threat caused Plaintiff feared for his life.

         On March 5, 2017, Plaintiff was left outside his cell door longer than other inmates. He observed Defendant Garcia talking to the control booth officer. Defendant Garcia indicated to control booth to let a certain inmate out of his cell. That inmate walked to Plaintiff and told him “Bldg. Officer's [sic] Garcia has let me, us convict's [sic] know Garcia want's [sic] you beaten and off the D-yard because you wrot [sic] ¶ 602 causing Garcia & the facility D custody problems….” (Id. at 13). This inmate then attacked Plaintiff by grabbing Plaintiff's neck and upper body area offensively, although Plaintiff managed to get free. Defendant Garcia watched this attack ...


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