United States District Court, E.D. California
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 ...