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McLelland v. Santos

February 27, 2009

BERNARD RAY MCLELLAND, PLAINTIFF,
v.
H. SANTOS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: William M. Wunderlich United States Magistrate Judge

FINDINGS AND RECOMMENDATION

Plaintiff is a state prisoner proceeding pro se in a civil rights action pursuant to 42 U.S.C. § 1983 against correctional officials. This action proceeds on the June 4, 2008, first amended complaint against Defendants H. Santos, M. Taylor and T. Traynham. Pending before the court is Defendants' motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff has opposed the motion.

FACTUAL ALLEGATIONS

The allegations in this complaint stem from Plaintiff's refusal to accept a cellmate. On February 28, 2005, Plaintiff filed an inmate grievance, CDCR Form 602, regarding a cellmate. Plaintiff, approved for double cell status, advised "them" that he would accept any member of the crip gang, or anybody non affiliated with a gang. Plaintiff also advised "them" that he must see or know an individual before he would sign a compatibility chrono. On March 2, 2005, Plaintiff submitted his grievance to Lt. Trayhan. Trayhan assigned it to C/O Santos. (Am. Compl. ¶¶ 7-8, 10-11).

On March 4, 2005, Plaintiff received a Rules Violation Report for refusing a cellmate. Plaintiff alleges that the RVR was back-dated, and was made in retaliation for Plaintiff's filing a grievance and not signing a compatibility chrono. (Am. Compl. ¶ 12).

On March 8, 2005, Santos responded to Plaintiff's grievance. Santos indicated that Plaintiff was not being harassed, but was being asked to receive a cellmate. Plaintiff responded that un-named C/Os failed to provide him with a compatible cellmate. Though unclear from the amended complaint, it appears that Plaintiff filed a grievance regarding the RVR. (Am. Compl. ¶ 15).

On March 23, 2005, Plaintiff was interviewed by Sergeant Hernandez. Hernandez denied the appeal at the first level. On April 11, 2005, Plaintiff received his grievance back from the first level of review. The grievance was denied because of Plaintiff's refusal to cooperate and sign the compatibility form. On April 12, 2005, filed for a second level of review with the Appeals Coordinator. Plaintiff's grievance stated that "he's a affiliated gang member and willing to freely and voluntarily sign the 1882 compatibility form to accept a cellmate that the set he's affiliated with get along with on the streets." (Am. Compl. ¶ ¶ 17, 20). On April 30, 2005, Plaintiff was interviewed by Lt. Trayhan Trayhan denied Plaintiff's grievance, citing institutional security concerns. (Am. Compl. ¶ 23).

Plaintiff alleges that specific retaliatory acts were taken against him for refusing to sign the inmate compatibility form. Plaintiff alleges that On March 10, 2005, his television was illegally confiscated by C/O Taylor in retaliation for his refusal to sign the form. Taylor told Plaintiff that he was ordered to do so by Lt. Trayhan. (Am. Compl. ¶ 24).

On April 3, 2005, Plaintiff filed a grievance regarding the confiscation of the television.

Plaintiff notes in his grievance that confiscation of electronic devices is authorized if an individual is found guilty a rules violation. (Am. Compl. ¶ 25).

On April 10, 2005, Plaintiff received his grievance back from informal level of review. It was noted by C/O Boyd that Plaintiff's television would be returned to him once he signed the compatibility form for a cellmate. Plaintiff submitted his grievance to first level of review. On April 7, 2005, Plaintiff sent a letter to the Warden. On May 4, 2005, Plaintiff received a response to the letter from Associate Warden Stainer, indicating that the television was confiscated as a result of Plaintiff being found guilty of a rules violation. (Am. Compl. ¶ 36).

Plaintiff alleges that on May 12, 2005, an unidentified C/O "had McClelland withdraw his grievance . . . while it was still pending review at the first level in exchange for his television and signature on the consent form stating he received his illegal confiscated television back." (Am. Compl. ¶ 38). Plaintiff does not indicate whether he consented to a cellmate, but he did receive his television after 63 days, (Am. Compl. ¶ 39).

Plaintiff also alleges that his disciplinary violation for refusing to sign an inmate compatibility form was motivated by retaliation. Plaintiff ...


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