Osvaldo R Gonzalez v. M Libatique et al
Filing
5
MEMORANDUM AND ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND by Magistrate Judge Suzanne H. Segal; Plaintiffs Complaint is dismissed with leave to amend. If Plaintiff still wishes to pursue this action, he is granted thirty (30) days from the date of this Memorandum and Order (October 9, 2011) within which to file a First Amended Complaint. See order for further details. (Attachments: # 1 Civil Rights Complaint, # 2 Notice of Dismissal) (jy)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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OSVALDO R. GONZALEZ,
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Plaintiff,
13
v.
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M. LIBATIQUE, et al.,
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Defendants.
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NO. CV 11-6876-ABC (SS)
MEMORANDUM AND ORDER DISMISSING
COMPLAINT WITH LEAVE TO AMEND
17
18
I.
19
INTRODUCTION
20
21
On July 6, 2011, plaintiff Osvaldo R. Gonzalez (“Plaintiff”), a
22
California state prisoner proceeding pro se, filed a civil rights
23
complaint pursuant to 42 U.S.C. § 1983 (the “Complaint”) against various
24
defendants.
For the reasons stated below, the Complaint is dismissed
25
with leave to amend.1
26
27
28
1
Magistrate Judges may dismiss a complaint with leave to amend
without approval of the district judge. See McKeever v. Block, 932 F.2d
795, 798 (9th Cir. 1991).
1
Congress mandates that district courts perform an initial screening
2
of complaints in civil actions where a prisoner seeks redress from a
3
governmental entity or employee.
4
dismiss such a complaint, or any portions thereof, before service of
5
process
6
malicious, (2) fails to state a claim upon which relief can be granted,
7
or (3) seeks monetary relief from a defendant who is immune from such
8
relief.
9
1122, 1126-27 & n.7 (9th Cir. 2000) (en banc).
if
it
concludes
that
28 U.S.C. § 1915A(a).
the
complaint
(1)
is
This Court may
frivolous
or
28 U.S.C. § 1915A(b)(1-2); see also Lopez v. Smith, 203 F.3d
10
11
II.
12
ALLEGATIONS OF THE COMPLAINT
13
14
Plaintiff alleges that the following six named defendants violated
15
his civil rights: (1) Parole Agent Mark Libatique, badge no. 5749
16
(“Agent Libatique”); (2) California Department of Corrections and
17
Rehabilitation Secretary, Matthew Cate (“Secretary Cate”); (3) Hearing
18
Officer, R. Wagner(“Officer Wagner”); (4) Los Angeles County Sheriff,
19
Leroy Baca (“Sheriff Baca”); (5) Parole Agent T. White, badge no. 5749-
20
DAPO (“Agent White”); and (6) Parole Agent Tranisha Tate, badge no. 4404
21
(“Agent Tate”) (collectively, “Defendants”).
22
Plaintiff
23
capacities.
is
suing
Defendants
in
their
(Complaint at 3-3a).
individual
and
official
(Id.).
24
25
Although Plaintiff’s allegations are unclear, the Complaint appears
26
to allege five interrelated claims arising from Plaintiff’s arrest
27
stemming from a parole violation.
28
alleges that his “first amendment rights to petition the governmen [sic]
(Complaint at 5).
2
First, Plaintiff
1
for redress of habeas corpus and grievances, lawsuit” were violated.
2
(Id.).
3
access the courts, file lawsuit and habeas petition” have been violated.
4
(Id.).
5
equal protection under the law” have been violated.
6
Plaintiff
7
amendment–retaliation threats if testify at parole hearing” have been
8
violated.
9
rights–retaliation and threats of retaliation if he participate [sic]
10
Second, Plaintiff alleges that his “first amendment rights to
Third, Plaintiff claims his “fourteenth amendment rights to
alleges
(Id.).
that
his
“rights
under
(Id.).
the
Fourth,
fourteenth
Fifth, Plaintiff alleges his “first amendment
in parole hearing” have been violated.
(Id.).
11
12
Plaintiff alleges that Defendants Agent Libatique, Agent Tate,
13
Agent White, Secretary Cate, and Officer Wagner authorized Plaintiff’s
14
arrest and placed Plaintiff in county jail.
15
that at the time of his arrest he was in possession of several legal
16
documents pertaining to a pending civil rights case Plaintiff had filed
17
in the Fifth Circuit Court of Appeals.
18
among those papers was “a rough appellate brief that the [P]laintiff was
19
working on, potential exhibits and other important documents” concerning
20
Plaintiff’s filed claim.
21
Agent Tate that he “needed those papers.”
22
Agent Tate reached inside Plaintiff’s duffel bag, grabbed a handful of
23
papers, and subsequently left them on her own desk.
24
then transported Plaintiff to the Los Angeles County Jail, where
25
Plaintiff alleges Defendants then deposited the rest of Plaintiff’s
26
papers, although it is unclear where the papers were left.
27
Plaintiff asserts he requested access to the above mentioned papers
28
“several times,” but was unsuccessful at obtaining his papers during the
(Id. at 5a).
3
(Id.).
(Id.).
Plaintiff claims
Plaintiff alleges that
Plaintiff claims he notified
(Id.).
Plaintiff alleges
(Id.).
Defendants
(Id.).
1
duration of his fifty-day stay at the Los Angeles County Jail before
2
being transferred to state prison.
3
“[h]e has been unable to find out what happened to that case, and his
4
papers.”
(Id. at 5-5a).
Plaintiff claims
(Id. at 5a).
5
6
Plaintiff alleges Defendants Agent Libatique, Sheriff Baca, Agent
7
Tate, Secretary Cate, Officer Wagner, and Agent White “housed Plaintiff,
8
a State Prison Inmate, in the Los Angeles County Jail, knowing that
9
doing so would deprive him of access to habeas corpus and civil rights
10
forms.
They also knew he would be deprived access to CDCR [California
11
Department of Corrections and Rehabilitation] 602 and BPH [Board of
12
Parole Hearings] grievances and complaint forms.”
13
“these [D]efendants also knew that Plaintiff would be deprived of access
14
to the courts, and be subject to deprivation of law library, law books,
15
case law and copying services.”
(Id.).
Further,
(Id.).
16
17
Plaintiff claims he was in the process of filing a habeas corpus
18
petition in state court “challenging the special conditions of parole”
19
which Plaintiff was accused of violating and which ultimately led to his
20
incarceration.
21
actions, he could not find the particular forms to file the above
22
mentioned habeas corpus petition.
(Id.).
Plaintiff alleges that, due to Defendants’
(Id.).
23
24
On June 3, 2011, Plaintiff claims he called Agent Libatique.
5b).
After
Plaintiff
identified
himself
25
at
26
Plaintiff alleges Agent Libatique “went ballistic, issuing several
27
threats and retaliatory actions.”
28
Libatique stated, “[y]ou better sign the wavier and take whatever the
(Id.).
4
to
Agent
(Id.
Libatique,
Plaintiff alleges Agent
1
BPH [] offers you.
I’m like a robot.
If you make me go to the hearing,
2
I’m gonna [sic] make sure you get a year in prison.”
3
claims Agent Libatique’s actions violated Plaintiff’s rights under the
4
First Amendment, as well as 42 U.S.C. § 1983 and § 1985.
(Id.).
Plaintiff
(Id.).
5
6
Plaintiff alleges the Defendants, “through and by their actions,
7
have violated Plaintiff’s constitutional rights to access to the courts,
8
to redress of
9
actions.”
grievances,
(Id.).
retaliation
and
threats
of
retaliatory
As a result of Defendants’ conduct, Plaintiff also
10
alleges Defendants “violated Plaintiff’s federally protected rights to
11
file habeas corpus, grievances, litigate pending case(s), and file this
12
case.”
(Id.).
13
14
Plaintiff seeks compensatory damages in the amount of $10,000.00
15
against each Defendant as to Plaintiff’s first three claims.
(Id. at
16
6). Plaintiff also seeks punitive damages against each Defendant in the
17
amount of $25,000.00 as to Plaintiff’s first three claims.
18
Plaintiff further seeks compensatory damages against Defendant Agent
19
Libatique, in the amount of $25,000.00 as to Plaintiff’s fourth and
20
fifth claims.
21
Defendant Agent Libatique, in the amount of $50,000.00 as to Plaintiff’s
22
fourth and fifth claims, as well as any relief “the Court deems just and
23
equitable.”
(Id.).
(Id.) Finally, Plaintiff seeks punitive damages against
(Id.).
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25
26
27
28
5
1
III.
2
DISCUSSION
3
4
Under 28 U.S.C. § 1915A(b), the Court must dismiss Plaintiff’s
5
Complaint due to defects in pleading.
Pro se litigants in civil rights
6
cases, however, must be given leave to amend their complaints unless it
7
is absolutely clear that the deficiencies cannot be cured by amendment.
8
See Lopez, 203 F.3d at 1128-29. Accordingly, the Court grants Plaintiff
9
leave to amend, as indicated below.
10
11
A.
To The Extent Plaintiff Is Attempting To State A Civil Rights
12
Claim Against Parole Agents For The Denial Of Parole, Such A Claim
13
Is Barred By The Heck Doctrine
14
15
Plaintiff
names
as
defendants
certain
“parole
agents”
who
16
apparently were involved in proceedings that led to the revocation of
17
Plaintiff’s parole.
18
and California Department of Corrections Officials Libatique, Tate,
19
White,
20
incarceration at the Los Angeles County Jail.
21
Although Plaintiff’s allegations are confusing, it appears that he may
22
be complaining that parole officers engaged in civil rights violations
23
that led to Plaintiff’s parole revocation.
24
Because Plaintiff’s civil rights claim essentially attacks the outcome
25
of his parole proceeding, his action is barred by the doctrine announced
26
in Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d 383
27
(1994).
and
Wagner
Specifically, Plaintiff claims that parole agents
authorized
Plaintiff’s
28
6
arrest
and
subsequent
(Complaint at 5).
(See Complaint at 5a-5b).
1
In Heck, the Supreme Court held:
2
3
[I]n
order
4
unconstitutional conviction or imprisonment, or for other
5
harm caused by actions whose unlawfulness would render a
6
conviction or sentence invalid, a § 1983 Plaintiff must prove
7
that the conviction or sentence has been reversed on direct
8
appeal, expunged by executive order, declared invalid by a
9
state tribunal authorized to make such determination, or
10
called into question by a federal court’s issuance of a writ
11
of
12
relationship to a conviction or sentence that has not been so
13
invalided is not cognizable under § 1983.
habeas
to
corpus.
recover
A
damages
claim
for
for
damages
an
allegedly
bearing
that
14
15
Heck, 512 U.S. at 486-87 (emphasis in original) (footnote omitted).
16
17
Under Heck, a § 1983 complaint must be dismissed if judgment in
18
favor of the plaintiff would undermine the validity of his conviction
19
or sentence, unless the plaintiff can demonstrate that the conviction
20
or sentence has already been invalidated.
21
v. Waldron, 210 F.3d 1008, 1013 (9th Cir. 2000) (citing Heck).
22
Plaintiff contends that the revocation of his parole was based upon
23
“special conditions” which Plaintiff would have challenged in state
24
court had Plaintiff been able to access the proper forms.
25
at 5a).
26
parole, he cannot do so in a civil rights action.
27
Bail, 120 F.3d 1023, 1024 (9th Cir. 1997) (§ 1983 challenge to validity
28
of parole denial is barred by Heck).
Id. at 487; see also Harvey
Here,
(Complaint
To the extent Plaintiff wishes to challenge the revocation of
7
See Butterfield v.
Accordingly, to the extent
1
Plaintiff is attempting to sue parole agents Libatique, Tate, White, and
2
Wagner for their conduct relating to the denial of parole, such claims
3
are barred.
4
5
6
B.
To The Extent Plaintiff Is Attempting To State A Claim For Denial
Of Access To The Courts, His Complaint Fails To State A Claim
7
8
Plaintiff alleges he was without access to CDCR and BPH grievance
9
forms, the courts, law libraries, legal documents and copying services.
10
(Complaint at 5).
11
not ends in themselves.
12
Plaintiff’s right to have a “reasonably adequate opportunity to present
13
claimed violations of constitutional rights to the courts,” i.e., have
14
access to the courts.
15
2174, 135 L. Ed. 2d 606 (1996) (quoting Bounds v. Smith, 430 U.S. 817,
16
825, 97 S. Ct. 1491, 52 L. Ed. 2d 72 (1977)).
In other words, the
17
Constitution
be
18
generalized research, but only that they be able to “present” their
19
grievances to the courts.
20
Donovan, 51 F.3d 894, 898 (9th Cir. 1995).
does
Access to the law library or to legal assistance are
They are only relevant as they pertain to
Lewis v. Casey, 518 U.S. 343, 350-51, 116 S. Ct.
not
require
that
prisoners
able
to
conduct
Lewis, 518 U.S. at 359; see also Cornett v.
21
22
“To have standing to assert a claim of denial of access to the
23
courts, an inmate must show ‘actual injury.’
24
actual injury, the inmate must demonstrate that official acts or
25
omissions
26
claim.’” Phillips v. Hust, 477 F.3d 1070, 1076 (9th Cir. 2007) (quoting
27
Lewis, 518 U.S. at 351, 353; citations omitted), vacated on other
28
grounds, 129 S. Ct. 1036, 173 L. Ed. 2d 466 (2009).
‘hindered
his
efforts
to
8
pursue
In order to establish
a
[nonfrivolous]
legal
1
In this case, Plaintiff has not shown that the periodic denial of
2
access to the library or to grievance forms infringed on his right to
3
an adequate opportunity to present his claims.
4
show how the alleged denial of access for a fifty day period caused any
5
injury.
6
denial of access to the law library, or legal forms has hindered his
7
efforts to pursue a legal claim.
8
right of access to the courts has not been violated.
9
dismissed with leave to amend.
Plaintiff has failed to
He has not shown an “actual injury” by demonstrating that the
See Lewis, 518 U.S. at 351.
Thus his
This claim is
10
11
C.
The Claims Against Officer Wagner, Sheriff Baca And Secretary Cate
12
Fail Because Plaintiff Has Failed To Show Personal Participation
13
In The Civil Rights Violations
14
15
The Complaint names as defendants Officer Wagner, Sheriff Baca and
16
Secretary Cate.
(Complaint at 3-3a, 5-5a).
However, Plaintiff’s
17
Statement of Claims does not include any specific allegations involving
18
these Defendants. Plaintiff must establish that Defendants had personal
19
involvement in the civil rights violations or that their action or
20
inaction caused the harm suffered.
21
WL 2988827 at *2 (9th Cir. July 25, 2011). Plaintiff has failed to make
22
any specific allegations concerning Officer Wagner’s role in Plaintiff’s
23
alleged deprivation of access to habeas corpus, civil rights forms, and
24
the courts.
25
of these Defendants personally participated in any constitutional
26
violation or caused the harm in some way, and must, therefore, be
27
dismissed with leave to amend.
28
\\
Starr v. Baca,
F.3d
, 2011
In addition, Plaintiff’s Complaint fails to show how any
9
1
D.
Plaintiff’s Allegations Fail To State A Claim For Retaliation
2
3
Plaintiff alleges Agent Libatique issued several threats and
4
“retaliatory actions,” after Plaintiff called Agent Libatique and
5
identified himself on June 3, 2011.
6
Circuit has set forth the minimum pleading requirements for a § 1983
7
claim alleging that prison employees have retaliated against an inmate
8
for exercising a First Amendment right:
(Complaint at 5b).
The Ninth
9
10
Within the prison context, a viable claim of First Amendment
11
retaliation entails five basic elements: (1) An assertion
12
that a state actor took some adverse action against an inmate
13
(2) because of (3) that prisoner’s protected conduct, and
14
that such action (4) chilled the inmate’s exercise of his
15
First Amendment rights, and (5) the action did not reasonably
16
advance a legitimate correctional goal.
17
18
See Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote
19
omitted). These criteria require that the prisoner establish a specific
20
link
21
constitutional right.
22
Cir. 1995).
between
the
alleged
retaliation
and
the
exercise
of
a
See Pratt v. Rowland, 65 F.3d 802, 807-08 (9th
23
24
The Court notes it is not clear from the present allegations that
25
Plaintiff truly engaged in protected conduct.
26
Prisoners’ Labor Union, Inc., 433 U.S. 119, 129, 132, 97 S. Ct. 2532,
27
L. Ed. 2d 629 (1977) (“In a prison context, an inmate does not retain
28
those First Amendment rights that are ‘inconsistent with his status as
10
See Jones v. N.C.
1
a
prisoner
or
with
the
legitimate
penological
objectives
of
the
2
corrections system.’”).
3
protected conduct he engaged in that preceded the retaliatory conduct.
4
Regardless, Plaintiff has failed to allege that Defendants’ alleged
5
actions chilled the exercise of his First Amendment rights. Therefore,
6
this claim is dismissed.
7
correct the deficiencies noted above, if such correction is possible.
Plaintiff fails to specifically identify the
Again, Plaintiff is granted leave to amend to
8
9
E.
Individual Defendants Are Immune From Suit In Their Official
Capacity
10
11
12
In
his
Complaint,
Plaintiff
seeks
to
sue
Defendants
Agent
13
Libatique, Secretary Cate, Officer Wagner, Sheriff Baca, Agent White,
14
and Agent Tate in their official capacities.
15
These Defendants are immune from suit in their official capacities,
16
however.
17
Amendment bars civil rights suit against state officials in their
18
official capacities). As such, the “official capacity” allegations are
19
defective and must be dismissed.
20
this action, he may only sue these individual state actors under § 1983
21
in their individual capacities.
(Complaint at 3-3a).
Pena v. Gardner, 976 F.2d 469, 472 (9th Cir. 1992) (Eleventh
If Plaintiff intends to proceed with
22
23
F.
The Court Cautions Plaintiff That If Challenged, It Is Possible
24
That The Complaint Will Be Dismissed For Plaintiff’s Failure To
25
Exhaust
26
27
Plaintiff admits in the Complaint that Plaintiff has yet to file
28
a grievance concerning the facts at issue at the institution where the
11
1
events occurred. (Complaint at 2). Although Plaintiff claims there are
2
no grievance procedures available at the particular institution, this
3
allegation may be disproved by Defendants if such procedures do, in
4
fact, exist.
5
6
Plaintiff must exhaust available remedies before proceeding in
7
federal court. “The Prison Litigation Reform Act of 1995 [(the ‘PLRA’)]
8
amended 42 U.S.C. § 1997e(a), which now requires a prisoner to exhaust
9
such administrative remedies as are available before suing over prison
10
conditions.”
Booth v. Churner, 532 U.S. 731, 733-34, 121 S. Ct. 1819,
11
149 L. Ed. 2d 958 (2001) (internal quotation marks omitted). Exhaustion
12
of prison administrative procedures is mandated regardless of the relief
13
offered through such procedures.
14
does not satisfy the PLRA exhaustion requirement by filing an untimely
15
or otherwise procedurally defective administrative grievance or appeal.
16
Woodford v. Ngo, 548 U.S. 81, 83-84, 126 S. Ct. 2378, 165 L. Ed. 2d 368
17
(2006).
18
boundary of proper exhaustion.
19
S. Ct. 910, 166 L. Ed. 2d 798 (2007).
20
his administrative remedies prior to filing suit.
21
311 F.3d 1198, 1199 (9th Cir. 2002) (per curiam).
Id. at 741.
Furthermore, a prisoner
It is the prison’s requirements, not the PLRA, that define the
Jones v. Bock, 549 U.S. 199, 218, 127
A prisoner must exhaust all of
McKinney v. Carey,
22
23
The PLRA exhaustion requirement is not jurisdictional, but rather
24
creates an affirmative defense that a defendant may raise in an
25
unenumerated Rule 12(b) motion.
26
Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003).
27
burden of raising and proving the absence of exhaustion.
Wyatt, 315
28
F.3d
that
at
1119.
Specifically,
Jones, 549 U.S. at 216-17; Wyatt v.
the
12
defendant
The defendant bears the
must
show
some
1
administrative relief remains available to the plaintiff “whether at
2
unexhausted levels of the grievance process or through awaiting the
3
results of the relief already granted as a result of that process.”
4
Brown v. Valoff, 422 F.3d 926, 936-37 (9th Cir. 2005).
5
has not exhausted administrative remedies on a claim, “the proper remedy
6
is dismissal of the claim without prejudice.”
7
Dismissal of the entire complaint is not required when a prisoner has
8
exhausted some, but not all, of the claims included in the complaint.
9
Jones, 549 U.S. at 222-24.
When a prisoner
Wyatt, 315 F.3d at 1120.
10
11
In
California,
state
prisoners
“may
appeal
any
departmental
12
decision, action, condition, or policy which they can demonstrate as
13
having an adverse effect upon their welfare.”
14
§ 3084.1(a).
15
administrative review.
16
an
17
describing the problem and the action requested.
18
15, § 3084.2(a).
19
resolution; (2) first formal level; (3) second formal level (conducted
20
by the institution head); and (4) third formal level (conducted by a
21
designated representative of the Director of the California Department
22
of Corrections and Rehabilitation under supervision of the Chief of
23
Inmate Appeals).
informal
Cal. Code Regs. tit. 15,
An informal complaint is a prerequisite to all further
complaint,
Cal. Code Regs. tit. 15, § 3084.2(b).
a
prisoner
must
submit
a
“CDC
To lodge
Form
602"
Cal. Code Regs. tit.
The levels of review are as follows: (1) informal
Cal. Code Regs. tit. 15, § 3084.1(a).
24
25
Again, the Court notes that Plaintiff admits he has failed to
26
exhaust administrative remedies.
(Complaint at 2).
27
dismiss the Complaint at this time for Plaintiff’s admitted failure to
28
exhaust, but cautions Plaintiff that if Defendants are eventually served
13
The Court does not
1
with the Complaint and if Defendants respond by moving to dismiss for
2
Plaintiff’s failure to exhaust, it is possible the Complaint will be
3
dismissed at that time.
4
5
IV.
6
CONCLUSION
7
8
9
For the reasons stated above, Plaintiff’s Complaint is dismissed
with leave to amend.
If Plaintiff still wishes to pursue this action,
10
he is granted thirty (30) days from the date of this Memorandum and
11
Order within which to file a First Amended Complaint.
12
complaint, the Plaintiff shall cure the defects described above.
13
First Amended Complaint, if any, shall be complete in itself and shall
14
bear both the designation “First Amended Complaint” and the case number
15
assigned to this action.
16
original Complaint.
17
Defendants who are properly named in such a complaint, consistent with
18
the authorities discussed above.
In any amended
The
It shall not refer in any manner to the
Plaintiff shall limit his action only to those
19
20
In any amended complaint, Plaintiff should confine his allegations
21
to those operative facts supporting each of his claims.
22
advised that pursuant to Federal Rule of Civil Procedure 8(a), all that
23
is required is a “short and plain statement of the claim showing that
24
the pleader is entitled to relief.”
25
to utilize the standard civil rights complaint form when filing any
26
amended complaint, a copy of which is attached.
27
complaint, Plaintiff should identify the nature of each separate legal
28
claim and make clear what specific factual allegations support his
14
Plaintiff is
Plaintiff is strongly encouraged
In any amended
1
claims. Plaintiff is strongly encouraged to keep his statements concise
2
and to omit irrelevant details.
3
cite case law or include legal argument.
It is not necessary for Plaintiff to
4
5
Plaintiff is explicitly cautioned that failure to timely file a
6
First
Amended
Complaint,
or
failure
to
correct
the
deficiencies
7
described above, will result in a recommendation that this action be
8
dismissed with prejudice for failure to prosecute and obey Court orders
9
pursuant to Federal Rule of Civil Procedure 41(b). Plaintiff is further
10
advised that if he no longer wishes to pursue this action, he may
11
voluntarily dismiss it by filing a Notice of Dismissal in accordance
12
with Federal Rule of Civil Procedure 41(a)(1).
13
Dismissal is attached for Plaintiff’s convenience.
A form Notice of
14
15
DATED: September 9, 2011
16
/S/
__________________________
SUZANNE H. SEGAL
UNITED STATES MAGISTRATE JUDGE
17
18
19
20
21
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25
26
27
28
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