Zaiza v. Clark, 1:19-cv-01476-DAD-GSA-PC

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
Writing for the CourtGary S. Austin UNITED STATES MAGISTRATE JUDGE
PartiesJOSE ROBERTO ZAIZA, Plaintiffs, v. CLARK, et al., Defendants.
Docket Number1:19-cv-01476-DAD-GSA-PC
Decision Date18 February 2021

JOSE ROBERTO ZAIZA, Plaintiffs,
v.
CLARK, et al., Defendants.

1:19-cv-01476-DAD-GSA-PC

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

February 18, 2021


FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE PROCEED WITH PLAINTIFF'S CLAIMS AGAINST DEFENDANTS CLARK, GALLAGER, AND BAUGHMAN FOR INUFFICIENT ACCESS TO OUT-OF-CELL EXERCISE IN VIOLATION OF THE EIGHTH AMENDMENT, AND THAT ALL OTHER CLAIMS AND DEFENDANTS BE DISMISSED FOR FAILURE TO STATE A CLAIM

FOURTEEN-DAY DEADLINE TO FILE OBJECTIONS

I. PROCEDURAL BACKGROUND

Jose Roberto Zaiza ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis with this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on October 17, 2019. (ECF No. 1.) On September 28, 2020, the court dismissed the Complaint for failure to state a claim, with leave to amend. (ECF No. 10.) On October 21, 2020, Plaintiff filed the First Amended Complaint, which is now before the court for screening. (ECF No. 11.) 28 U.S.C. § 1915.

II. SCREENING REQUIREMENT

The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that the action or appeal fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).

A complaint is required to 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)). While a plaintiff's allegations are taken as true, courts "are not required to indulge unwarranted inferences." Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). To state a viable claim, Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). While factual allegations are accepted as true, legal conclusions are not. Id. The mere possibility of misconduct falls short of meeting this plausibility standard. Id.

III. SUMMARY OF FIRST AMENDED COMPLAINT

Plaintiff is presently incarcerated at Corcoran State Prison (CSP) in Corcoran, California, in the custody of the California Department of Corrections and Rehabilitation where the events at issue in the First Amended Complaint allegedly took place. Plaintiff names as defendants Ken Clark (Warden), D. Goss (Associate Warden), L.C. Hence (Chief Deputy Warden), M. Gamboa (Chief Deputy Warden), Sergeant P. Perez, Sergeant J. Navarro, Lieutenant C. Brown, Captain Llamas, Captain J. Gallager, D. Baughman (CDCR Acting Associate Director), and Does #1-10 (collectively, "Defendants").

In or about June 2008, Plaintiff was sentenced to 75 to life to be served within the CDCR. In or about July 2008, while confined in North Kern State Prison, CDCR classified Plaintiff as

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a member of a "Southern Hispanic" disruptive group. The CDCR has previously admitted this classification is a race-based classification in R. Mitchell v. Cate, et al., Case No. 2:08-cv-01196-TLN-EFB, 10/14/2015, Doc. No. 332-1 (E.D. Cal.).

On January 18, 2013, in the case In Re Haro, FCR282399,1 the Solano County Superior Court held that CDCR's lockdown and/or modified program policy could not survive a strict-scrutiny analysis as required by the United States Supreme Court's decision in Johnson v. California, 543 U.S. 499, 125 S.Ct. 1141 (2005), ordering that CDCR's classification system must, at minimum (1) preclude an inmate's inclusion in a specific classification based on ethnic or geographical background alone, and (2) preclude arbitrary classifications that unduly focus on certain ethnicities while wholly ignoring others. (ECF No. 11 at 10:14-17.) As a result of the ruling, Plaintiff's classification changed from "Southern Hispanic" to Security Threat Group (STG) Surenos. Plaintiff alleges that CDCR continues to use race and ethnicity to classify Plaintiff and other inmates contrary to the Court's In re Haro order. For example, Black inmates who were previously classified as "Black-Crips" and "Black-Bloods" are now classified as "STG Bloods" and "STG Crips." Plaintiff alleges that CDCR Defendants continue to utilize race and ethnicity to racially classify Plaintiff and all inmates into "STGs," contrary to the Haro court's order.

On September 28, 2018, during morning tray pickup in Building 3C02, approximately five STG Bulldogs attacked ten STG Surenos with inmate-manufactured weapons. Due to the STG Bulldogs' unprovoked attack on the STG Surenos, staff was required to use a 40 MM launcher MK-90 OC pepper spray and OC instantaneous blast grenades to quell the incident. Plaintiff was housed in Building 3C03 and was not involved in the incident.

In spite of the incident, defendants Clark, Gallager, and Baughman refused to impose a "State of Emergency" and instead placed all Facility C inmates on a Modified Program in order to facilitate inmate interviews, searches, and intelligence gathering, and then attempted to return all inmates, other than STG Bulldog and STG Surenos, back to a Normal Program.

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On October 10, 2018, an administrative decision was made by defendants Clark, Gallager, and Baughman to resume a Normal Program for all uninvolved inmates (STG Bloods/Crips, STG Nazis/Skinheads, STG Asian Gangs), while Plaintiff and all similarly situated racially classified STG Surenos and Bulldogs were subjected to Defendants' Modified Program.

Plaintiff alleges that all of the Defendants who signed/dated PSRs2 from September 28, 2018 to date - D. Baughman, Ken Clark (Warden), D. Goss (Associate Warden), L.C. Hence (Chief Deputy Warden), M. Gamboa (Chief Deputy Warden), Sergeant P. Perez, Sergeant J. Navarro, Lieutenant C. Brown, Captain Llamas, and Captain J. Gallager -- approved restrictions by the race-based Modified Program for work/education, attending self-help programs, (e.g., NA, AA, higher education classes, GOGI Lifers Group, mandated substance abuse program (SAP), which are mandated by Board of Prison Terms for parole considerations), restriction of canteen, dayroom telephone calls, visits, family visits, packages, restricted visits-- even behind glass, religious services, and other restrictions. Defendants informed Plaintiff and race-based Modified Program inmates to hold their own in-cell religious services. Defendants suspended physical access to the law library except for inmates who can produce court ordered verified court filing deadlines.

Defendants only allowed Plaintiff one shower every third day in boxers and shower shoes only. Plaintiff was cell-fed prior to the race-based Modified Program and Defendants only permitted Plaintiff to receive health care services for medical/dental services. Defendants only permitted Plaintiff and race-based Modified Program inmates access to health care services because of court orders from Plata v. Brown/Newsom, Coleman v. Brown/Newsom, and Perez v. Brown/Newsom.

Defendants' Modified Program mandates that inmates be strip searched and wanded with a metal detector prior to being escorted in restraints to medical/dental visits and the law library. Plaintiff alleges that not once did any correctional officer conduct an unclothed body search or wand Plaintiff with a hand-held metal detector prior to going to any of the above appointments.

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The only time Plaintiff was subjected to a metal detector search was after exiting his cell prior to going to staggered interval for out-of-cell exercise.

Under the program, Plaintiff was deprived of out-of-cell exercise and sunshine from September 28, 2018 through July 8, 2019, and from August 24, 2019 through the present date. Approximately fifteen days after the incident, Defendants D. Baughman, Ken Clark (Warden), D. Goss (Associate Warden), L.C. Hence (Chief Deputy Warden), M. Gamboa (Chief Deputy Warden), Sergeant P. Perez, Sergeant J. Navarro, Lieutenant C. Brown, Captain Llamas, Captain J. Gallager, and Does #1-10 started to provide Plaintiff (and some other Surenos) with sporadic opportunities for out-of-cell exercise, as follows:

October 2018

11th 1 hr. 45 min.

18th 1 hr. 30 min.

25th 1 hr. 30 min.

November 2018

1st 1 hr. 30 min.

21st 2 hr. 0 min.

29th 1 hr. 0 min.

December 2018

7th 2 hr. 30 min.

27th 2 hr. 0 min.

January 2019

15th 3 hr. 0 min.

29th 2 hr. 0 min.

February 2019

8th 2 hr. 0 min.

27th 0 hr. 35 min.

March 2019

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8th 0 hr. 50 min.

18th 2 hr. 15 min.

On or about March 25, 2019, defendant Gallager informed STG Surenos MAC3 Representative that they had received information from STG Surenos housed in different prisons that Facility C planned to stage a peaceful protest against the race-based Modified Program and its restrictions by refusing to lock it up after a yard recall until prison officials spoke with the MAC Representative. This was false information and was not a plan that Plaintiff nor the Facility C Surenos intended to implement. Because of this false information, which defendant Warden K. Clark found credible, defendants Clark, Gallager, and Baughman imposed additional restrictions on yard time for Surenos as follows:

April 2019

2nd 2 hr. 10
...

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