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Gonzalez v. Felker

September 15, 2008

SALVADOR GONZALEZ, PLAINTIFF,
v.
T. FELKER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

ORDER

Plaintiff, a state prisoner proceeding pro se, brings this civil action pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff's second amended complaint (Doc. 14).

The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if it: (1) is frivolous or malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover, the Federal Rules of Civil Procedure require that complaints contain a "... short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). This means that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the complaint gives the defendant fair notice of the plaintiff's claim and the grounds upon which it rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must allege with at least some degree of particularity overt acts by specific defendants which support the claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is impossible for the court to conduct the screening required by law when the allegations are vague and conclusory.

I. PLAINTIFF'S ALLEGATIONS

In the second amended complaint, plaintiff names the following as defendants: Felker, Foulk, Peery, Lockard, Lemon, Lynn, Bracket, Sears, Garbutt, Rodriguez, Sweeten, Freitas, Anderson, Camire, Moore, Tampien, Ruggero, Epperson, Turner, Zinn, Miller, Doosenberry, Carter, Nelson, Silva, French, Celis, Baron, and Ingwerson.*fn1

Plaintiff states that, on January 16, 2007, the following occurred:

...[P]rison guards arrived in an aggressive, hostile, and in a threatening manner, angry in an act of force to cell extract us for no reason. We were falsly [sic] accused of having our (my celly and I) windows covered while seeing they were not and which they video of the incident shows they falsly [sic] accused us of covering our windows.

Plaintiff alleges that prison guards "targeted the Hispanic race because they were all complaining about lockdowns...." He claims that it was the prison guards who covered the cell windows "through the outside" so that "no one would witness their planned, malicious abuse." Plaintiff asserts that all this was done "under the supervision of acting warden T. Felker, Cptn. Foulk--authorized & supervised the cell extractions along with Lt. Peery, Sgt. Lockard, Sgt. Lynn, Sgt.

Lemon pressed the issue for us to be cell extracted." He says the cell extraction was "first made by the 3 sergeants," presumably referring to defendants Lockard, Lynn, and Lemon.

Plaintiff asserts that, because prison officials "came angry and in a disrespectful manner, armed with weapons" he feared for his safety and "felt safe in my cell." He states that it was noisy outside the cell and he thinks he was ordered to turn on the light in his cell, but he is not sure. He then alleges:

... Sgt. Lemon threw a gas grenade in our cell knowing I have asthma & that the vents of every inmate's cell were turned off for about 6 hours....

He states that, as a result of the gas grenade, both he and his cellmate almost passed out and needed help. He claims that he informed officials that he could not breath but that defendants Lockard, Lynn, and Lemon "just ignored me & stared."

According to plaintiff, he was then forced to "go through the naked cell search procedure twice for no reason, but to keep us in the cell suffering the effects longer." After being removed from the cell, plaintiff states that he was placed in mechanical restraints and forced to remain naked. Plaintiff asserts that he was put in restraints by defendants Tampien and Ruggero after defendant Doosenberry opened the cell door from the guard tower. According to plaintiff, the entire incident was filmed by defendant Epperson, who is female. He also states that, during the cell extraction, defendant Camire "held a shield" and defendant Moore "had a baton." He adds that "other correctional officers," whose identities he does not ...


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