Zaiza v. Clark
| Decision Date | 09 December 2021 |
| Docket Number | 1:19-cv-01476-DAD-GSA-PC |
| Parties | JOSE ROBERTO ZAIZA, Plaintiffs, v. CLARK, et al., Defendants. |
| Court | U.S. District Court — Eastern District of California |
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANTS' MOTION TO DISMISS BE GRANTED IN PART, AND DENIED IN PART (ECF No. 21.)
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. (ECF No. 11.)
This case now proceeds with the First Amended Complaint against Defendants Ken Clark (Warden), Captain J. Gallagher, [1] and D. Baughman (CDCR Acting Associate Director) (collectively, “Defendants”) for insufficient access to out-of-cell exercise in violation of the Eighth Amendment.[2] (ECF No. 11.)
On September 10, 2021, Defendants filed a motion to dismiss the complaint. (ECF No. 21.) On October 27, 2021, Plaintiff filed an opposition to the motion. (ECF No. 24.) On November 1, 2021, Defendants filed a reply to the opposition. (ECF No. 25.) Defendants' motion has been submitted upon the record without oral argument pursuant to Local Rule 230(l), and for the reasons that follow the court finds that Defendants' motion to dismiss should be granted in part and denied in part.
The events at issue in the First Amended Complaint allegedly took place at Corcoran State Prison in Corcoran, California. Plaintiff's allegations follow:
In or about June 2008, Plaintiff was sentenced to 75 years to life to be served within the CDCR. In or about July 2008, while confined at North Kern State Prison, CDCR classified Plaintiff as 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, [3] the Solano 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 Haro court's 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, Gallagher, 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 Bulldogs and STG Surenos back to a Normal Program.
On October 10, 2018, an administrative decision was made by defendants Clark, Gallagher, 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 PSRs[4] 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. Gallagher -- 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, and 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. The only time Plaintiff was subjected to a metal detector search was after exiting his cell prior to going to staggered intervals 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. Gallagher, and Does #1-10 started to provide Plaintiff (and some other Surenos) with sporadic opportunities for out-of-cell exercise, as follows:
On or about March 25, 2019, defendant Gallagher informed STG Surenos MAC[5]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 or the Facility C Surenos intended to implement. Because of this false information, which defendant Warden K. Clark found credible, defendants Clark, Gallagher, and Baughman imposed additional restrictions on yard time for Surenos as follows:
On or about January 6, 2019, the above Defendants eased a third restriction by allowing Modified Program inmates to purchase only hygiene items from canteen, but no food items or stationery. Again, disciplinary inmates in Corcoran's Ad-Seg/ASU, SHU, and PHU are permitted to purchase and receive all the above including packages as mandated by CDCR regulations.
On or about November 27, 2018, defendants Baughman, Clark, Goss, Hence, Gallagher, and Gamboa started releases of STG Bulldogs and STG Surenos based on “low risk” assessments of these inmates in an effort to return the inmates back to Normal Program. However, these incremental releases between November 27, 2018 and June 6, 2019, were actually orchestrated and set-up gladiator-style fights/assaults.
Between September 28, 2018 through October 10, 2018, Defendants had “intelligence gatherings” from their confidential sources or snitches, and concluded that the STG Surenos were the victims in the September 28, 2018 incident and STG Bulldogs were the obvious aggressors, the issues and problems between Surenos and Bulldogs will not be resolved, and the violence between the two groups will continue.
Defendants Baughman, Clark, Goss, Hence, Gallagher, Perez, Navarro Brown, Llamas, and Gamboa approved and conducted sixteen gladiator style fights. From July 20, 2019 to August 27, 2019, highly trained professional building tower control officers would intentionally open Modified Program...
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