Gao v. Marroquin

          ORDER SCREENING PLAINTIFF'S FIRST AMENDED COMPLAINT, AND GRANTING PLAINTIFF LEAVE TO FILE EITHER A SECOND AMENDED COMPLAINT OR A NOTICE OF INTENT TO PROCEED ON CLAIM FOUND TO BE COGNIZABLE (ECF NO. 9) THIRTY (30) DAY DEADLINE

          BARBARA A. McAULIFFE, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Jason Gao is a former state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On August 28, 2019, the Court screened Plaintiff's complaint and granted Plaintiff leave to file a first amended complaint. (ECF No. 8.)

         Plaintiff's first amended complaint, filed on October 7, 2019, is currently before the Court for screening. (ECF No. 9.)

         I. Screening Requirement and Standard

         The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). Plaintiff's complaint, or any portion thereof, is subject to dismissal if it is frivolous or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b); see also 28 U.S.C. § 1915(e)(2)(B).

         A complaint must 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)). Moreover, Plaintiff must demonstrate that each defendant personally participated in the deprivation of Plaintiff's rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).

         Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012). To survive screening, Plaintiff's claims must be facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and “facts that are ‘merely consistent with' a defendant's liability” falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969.

         II. Summary of Plaintiff's Allegations

         Plaintiff has been released from prison. Plaintiff alleges that the events at issue in this action took place when he was housed at California Correctional Institution (“CCI”). Plaintiff names the following defendants: (1) CCI Correctional Case Records Manager D. Marroquin; (2) California Department of Corrections and Rehabilitation (“CDCR”) Legal Processing Unit Correctional Case Manager Rosie Bernal; and (3) CDCR Legal Processing Unit Correctional Case Records Analyst Cathy Heifner. Plaintiff asserts that he is suing all three Defendants in both their personal and official capacities.

         Plaintiff alleges as follows: Approximately two weeks prior to December 17, 2017, Plaintiff filed an administrative appeal, Log Number CCI-0-17-02715, against Defendant Marroquin. Defendant Marroquin knew about Plaintiff's administrative appeal against her because Defendant Marroquin interviewed Plaintiff in order to resolve the appeal. During the interview, Defendant Marroquin urged Plaintiff to withdraw his appeal. After Plaintiff refused to withdraw his appeal, Defendant Marroquin's tone of voice changed from professional to angry, she appeared agitated, and she sarcastically laughed at Plaintiff as he explained his appeal issue. Prior to December 17, 2017, Plaintiff's administrative appeal against Defendant Marroquin was partially granted in his favor.

         On or about December 17, 2017, Defendant Marroquin contacted CDCR's Legal Processing Unit and spoke with Defendants Bernal and Heifner. Defendant Marroquin told Defendants Bernal and Heifner about the administrative appeal that Plaintiff had filed against her. Then, Defendant Marroquin reported to Defendants Bernal and Heifner that she had discovered sentencing errors in Plaintiff's case, one of which would require a 3-year, 4-month increase in Plaintiff's sentence. Pursuant to Defendant Marroquin's report, the Legal Processing Unit sent a letter, signed by Defendants Bernal and Heifner, to Plaintiff's sentencing court for it to determine whether Plaintiff's sentence should be increased. If Defendants Bernal and Heifner had not approved of the letter regarding Plaintiff's sentence, the letter would not have been sent to Plaintiff's sentencing court.

         Defendant Marroquin's report to the Legal Processing Unit regarding Plaintiff's sentence caused Plaintiff to become apprehensive about what further action Defendant Marroquin would take against him for pursuing the portion of his administrative appeal that had not been granted. “In fact, to avoid any further immediate adverse action by Marroquin against [Plaintiff], he purposely protracted the submission of his administrative appeal to the final level of review by failing to include all supporting documents to that the final level of review would reject the appeal and, thus, give [Plaintiff] more time to submit the supporting papers; however, [Plaintiff] eventually exhausted administrative remedies on that matter.” (ECF No. 9, at 5.)

         Plaintiff asserts that Defendant Marroquin had no legitimate reason to contact the Legal Processing Unit because Defendant Marroquin was aware from Plaintiff's sentencing documents that Plaintiff's sentence was imposed pursuant to a negotiated plea agreement that included the allegedly problematic sentence and that, thus, any letter to the sentencing court would be frivolous. Plaintiff also alleges that Defendants Bernal and Heifner were aware that Defendant Marroquin had no legitimate basis for her report about Plaintiff's sentence because both Defendants Bernal and Heifner were aware from Plaintiff's sentencing documents that Plaintiff's ...