United States District Court, E.D. California
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)
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
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
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.”
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.).
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).
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).
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).
SUMMARY OF PLAINTIFF'S COMPLAINT
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
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.
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
December 8, 2016, Plaintiff alerted the housing unit sergeant
of this policy. Plaintiff also alerted Defendant Ibarra.
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.
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
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).
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.
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
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.
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 ...