Molina v. Diaz

• Decision Date: 28 December 2021
• Docket Number: EDCV 20-00518-SVW (AS)
• Court: U.S. District Court — Central District of California
• Parties: JUAN MOLINA, Plaintiff, v. RALPH DIAZ, et al., Defendants.

JUAN MOLINA, Plaintiff,
v.
RALPH DIAZ, et al., Defendants.

No. EDCV 20-00518-SVW (AS)

United States District Court, C.D. California, Eastern Division

December 28, 2021

ORDER DISMISSING THIRD AMENDED COMPLAINT WITH LEAVE TO AMEND

ALKA SAGAR UNITED STATES MAGISTRATE JUDGE

INTRODUCTION

On December 20, 2019, Juan Molina (“Plaintiff”), an inmate formerly housed at Ironwood State Prison (“Ironwood”) in Blythe, California, ^[1] proceeding pro se, filed a Civil Rights Complaint (“Complaint”) pursuant to 42 U.S.C. § 1983.^[2]

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(Dkt. Nos. 1, 1-1, 1-2). On April 17, 2020, the Court dismissed the Complaint, with leave to amend, because it failed to state a claim for relief. (Dkt. No. 14). Plaintiff subsequently filed a First Amended Complaint (Dkt. No. 30)^[3] and a Second Amended Complaint (Dkt. No. 36), which were each dismissed, in turn, with leave to amend (Dkt. Nos. 32, 37).

On November 18, 2021, Plaintiff filed a Third Amended Complaint pursuant to 42 U.S.C. §§ 1983 and 1985 (“Third Amended Complaint” or “TAC”). The Court has screened the Third Amended Complaint as prescribed by 28 U.S.C. § 1915A and 42 U.S.C. § 1997e. For the reasons discussed below, the Court DISMISSES Plaintiff's Third Amended Complaint WITH LEAVE TO AMEND.^[4]

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THIRD AMENDED COMPLAINT

The Third Amended Complaint names a total of nineteen defendants. (TAC at 4-12). Eleven of these are named solely in their official capacity: (1) Ralph Diaz, Secretary of the CDCR;^[5](2) Jeffrey Macomber, CDCR Undersecretary of Operations; (3) Connie Gipson, CDCR Director of the Division of Adult Institutions; (4) Howard Moseley, CDCR Director of the Office of Appeals; (5) Jared Lozano, CDCR Assistant Director of High Security, Males, in the Division of Adult Institutions; (6) Kirk Stinson, CDCR Chief of Internal Affairs (Field Operations), Division of Correctional Policy Research and Internal Oversight; (7) Neil McDowell, Warden, Ironwood; (8) R.W. Smith, Chief Deputy Warden, Ironwood; (9) S. Moore, Associate Warden, Ironwood; (10) J. Martin, Correctional Dog Handler, Ironwood; (11) M. Cota, Correctional Staff Service Analyst, Ironwood. (TAC at 4-7, 11-12). The remaining eight defendants are named solely in their individual capacities: (1) H. Liu, Correctional Captain, Ironwood; (2) J. Frias, Correctional Lieutenant, Ironwood; (3) G. Gasgonia, Correctional Lieutenant, Ironwood; (4) J. Zermeno, Correctional Sergeant, Ironwood; (5) S.

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Striplin, Correctional Investigative Services Unit (“ISU”) Officer, Ironwood; (6) E. Nunez, Correctional ISU Officer, Ironwood; (7) B. Wilson, Correctional Officer, Ironwood; (8) Montgomery, Correctional Officer, Ironwood. (TAC at 8-12).

Plaintiff alleges that he was a participant in a prisoner hunger strike several years ago at Pelican Bay State Prison in Del Norte County, California (“Pelican Bay”), where he was formerly housed. (TAC at 15). The hunger strike, which had been orchestrated by members of four major California prison gangs, precipitated a prisoner class action suit in the United States District Court for the Northern District of California, against the CDCR and various state officials, regarding the use of indeterminate solitary confinement in California prisons and the use of confidential information in disciplinary hearings at Pelican Bay, among other issues. (See TAC at 15-16); see also Ashker v. Newsom, N.D. Cal. Case No. 09-CV-05796-CW (RMI).^[6] The case

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culminated in a settlement in 2015.^[7] (See TAC at 16); Ashker, 2021 WL 5316414, at *3 (N.D. Cal. Apr. 9, 2021) (describing settlement).

Plaintiff alleges that since that settlement, CDCR officials have viewed the Ashker “hunger strikers” as a threat and have been cracking down on them through a discriminatory “underground policy” of using fabricated evidence against them as grounds to remove them from the general population. (TAC at 13, 17-18). Plaintiff claims that he has been a target of this policy since his transfer to Ironwood. (See TAC at 18-28).

According to Plaintiff, Defendant Nunez, an Ironwood correctional officer, prepared a “falsified” confidential memorandum on September 10, 2018, in which a “paid informant” alleged that Plaintiff was part of a conspiracy to introduce unauthorized controlled substances and cell phones through a “compromised” staff member. (TAC at 18). Nunez allegedly placed this false memorandum in Plaintiff's central file, but Plaintiff was not served with notice of it, as required by CDCR regulations, and he was given no “opportunity to contest, challenge or refute”

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it. (TAC at 18). Plaintiff alleges that similar confidential memoranda were later prepared by Defendant Sgt. Zermeno on December 3, 2018, and by Nunez on January 4 and 18, 2019, which were also placed in Plaintiff's file without notice. (TAC at 18-19).

On January 22, 2019, Defendant Nunez, along with Defendants Martin and Striplin, conducted a search of the Facility D vocational welding classroom and purportedly found drugs and cell phones hidden behind the exhaust ventilation unit in the wall. (See TAC at 19-20; TAC Exhs. D-E). A Rules Violation Report (“RVR”) was subsequently issued based on this search, falsely charging Plaintiff with conspiracy to distribute controlled substances (RVR Log No. 6824745, or “2019 RVR”). (See TAC at 19-21). Plaintiff was placed in administrative segregation (“Ad Seg”). (TAC at 20). On April 25, 2019, Nunez prepared a supplement to the 2019 RVR which falsely described the search and investigation, stating among other things that “reliable, confidential sources provided intelligence regarding the introduction of narcotics and contraband cellphones by [Plaintiff] and [another inmate, Lopez].” (TAC at 19-20; Exh. E). Plaintiff alleges “upon information and belief” that Nunez's “paid informant” had tried to convince Lopez to join a contraband-smuggling conspiracy and had told Lopez there was a “compromised” staff member willing to help. (TAC at 20 n.6). Plaintiff asserts that he never spoke with any informant or staff member about a smuggling operation. (TAC at 20 n.6). Plaintiff thus notes that the confidential memoranda used against him “contain no specific date, time, place, conversation, where [Plaintiff] met with the confidential paid informant; no place

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where he met with the compromised staff; no description of how he collected or received this drug money, the proceeds from this illegal enterprise, or any other nexus between Plaintiff [] and this alleged conspiracy.”^[8] (TAC at 20 n.6).

At Plaintiff's disciplinary hearing on May 12, 2019, Defendant Lt. Gasgonia, the presiding officer, relied on the confidential memoranda to find Plaintiff guilty of conspiracy to distribute

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controlled substances. (TAC at 21; TAC Exh. D). On May 28, 2019, Defendant Associate Warden Moore, the chief disciplinary officer, confirmed the sanctions and penalties, including 180 days of lost credits, 10 days confined to quarters, and the temporary loss of various privileges. (TAC at 22; TAC Exh. D).

Plaintiff submitted administrative appeals claiming that Defendants Nunez, Zermeno, Frias, Gasgonia, and Chief Deputy Warden Smith conspired to violate his rights in these disciplinary proceedings. (TAC at 24-25; TAC Exh. A). Defendants Cota and Smith denied the appeal at the second level on July 17, 2019, and Defendant Liu denied the third-level appeal on November 1, 2019. (TAC at 24-25; TAC Exh. B).

The following January, Plaintiff was again subjected to a disciplinary charge. According to Plaintiff, a team of ISU and Institutional Gang Investigations unit (“IGI”) officers “simultaneously” removed about twenty inmates, including Plaintiff, from their cells for searching and questioning in the early morning hours on January 23, 2020. (TAC at 22). Defendant Wilson searched Plaintiff's cell that morning and purportedly found and confiscated two cell phones and chargers, for which Plaintiff was subsequently charged with a rule violation (RVR Log No. 6959996, or “2020 RVR”). (TAC at 22; TAC Exh. F). At the disciplinary hearing on February 4, 2020, Plaintiff denied possessing the phone, and the testimony of several inmate witnesses revealed a discrepancy in the time of the search as recorded on the RVR. (TAC at 22-23; TAC Exh. F). The presiding hearing

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officer, Defendant Lt. Zavala, found Plaintiff not guilty based on the inconsistent time recorded on the RVR and the officers' failure to follow proper evidence procedures. (TAC at 23; TAC Exh. F).

Plaintiff asserts that this “coordinated institutional raid” on January 23, 2020, “was directed, planned, orchestrated, implemented and/or approved by” Defendants Diaz, Macomber, Gipson, Lozano, Moseley, Stinson, McDowell, and Smith (all of whom are sued solely in their official capacity, as noted above).^[9] (TAC at 25; see TAC 4-7). He states that this was carried out “to enforce an underground policy of retaliation against ‘targeted' state prisoners, ” including Plaintiff. (TAC at 25-26). He claims that these Defendants thus violated his rights under the “Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution pursuant to 42 U.S.C. § 1985.” (TAC at 25). He further claims that these Defendants violated California's Information Practices Act (Cal. Civ. Code, § 1798 et seq.) by causing “manufactured, falsified documents” to be placed in Plaintiff's file.^[10]

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(TAC at 26). Plaintiff states that he sues these Defendants in their official capacities for declaratory and injunctive relief “for the removal of [the 2019 RVR].” (TAC at 26). Plaintiff also seeks punitive damages from these Defendants. (TAC at 26).

Plaintiff claims that the other Defendants who are sued in their individual capacities (Liu, Frias, Lt. Gasgonia, Sgt. Zermeno, Striplin, Nunez, Wilson, and Montgomery) violated his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments by participating in an “effort to fabricate, falsify, manufacture...