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Ellington v. Director of Corrections

March 30, 2009

MARCUS R. ELLINGTON, PLAINTIFF,
v.
DIRECTOR OF CORRECTIONS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER DISMISSING COMPLAINT WITH LEAVE TO FILE AMENDED COMPLAINT OR NOTICE OF VOLUNTARY DISMISSAL WITHIN THIRTY DAYS

(Doc. 1)

I. Screening Order

Plaintiff Marcus R. Ellington ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed his complaint onJanuary 5, 2009. (Doc. 1.) Plaintiff's complaint is presently before the Court for screening.

A. 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 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).

"Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions," none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002); Fed. R. Civ. Pro. 8(a). Pursuant to Rule 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief...." Fed. R. Civ. Pro. 8(a). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. However, "the liberal pleading standard... applies only to a plaintiff's factual allegations." Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). "[A] liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled." Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).

B. Summary of Plaintiff's Complaint

Plaintiff is currently a state prisoner at California Substance Abuse and Treatment Facility ("CSATF") in Corcoran, California, where the acts he complains of occurred. Plaintiff names the following defendants: Director of Corrections; Sergeants O. Best and Garza; correctional Counselor II Gomez; Chaplain McVae; Chief Medical Officer A. Enenmoh; physician assistant T. Beyers; officers Johnson, A. Sanchez, Joosten, Bonnacori, Ramos, Garza, DeLong, Campos, Pizzola, R. A. Castro, K. Holmes, and Bedford; Lieutenant Perez; Captain Reynoso; and Warden Ken Clark. Plaintiff also names officers Boyd, Brewer, and Flemming in the body of his complaint.

Plaintiff alleges the following. Defendants Boyd, Brewer, and Flemming moved Plaintiff from upper yard to lower yard and to a cell which is not accessible for mobility-impaired inmates such as Plaintiff. This also resulted in Plaintiff losing his vocational assignment. Plaintiff was moved because Boyd, Brewer, and Flemming discovered that Plaintiff had been charged with child molestation. Defendant O. Best upon receiving a 602 appeal from Plaintiff acted to move Plaintiff back to upper yard. (Doc. 1, pp. 3-4, ¶¶ 1-6.)

Defendant A. Sanchez was contacted by defendants Brewer, Boyd, and Flemming. A. Sanchez used his influence to have defendant Johnson search Plaintiff's cell and break his radio. Defendant Sanchez also moved Plaintiff to a cell that did not have a shower accessible for Plaintiff's ADA needs. Plaintiff informed officer Padilla of his situation, and Plaintiff was subsequently moved back to another cell that had access to the ADA shower. (Id., p. 4, ¶¶ 7-9.)

Inmate O'Neal was placed in the same cell as Plaintiff. O'Neal had a known history of mental illness and violence against other inmates. On August 31, 2008, Plaintiff was on his way to an interview with defendant Sergeant Garza, and was being handcuffed. Plaintiff was assaulted by inmate O'Neal right after he was handcuffed. (Id., p. 4, ¶ 10.)

Defendant Lieutenant Perez placed Plaintiff and O'Neal in the administrative segregation unit (ASU). While there, Plaintiff's property was gathered and confiscated by defendants Boyd, Ramos, Bonnacori, and Garza. Defendant was interviewed by defendant Captain Reynoso on September 1, 2008 and requested to be re-housed in C upper yard, but was refused. Plaintiff was released from ASU on September 1, 2008 and placed in the upper yard instead of the lower yard where he did not have access to an ADA shower. Officers Galindo and Davis made Plaintiff wait until the end in order to shower, resulting in Plaintiff not being able to shower at all because of the time of day. Plaintiff had filed a 602 appeal form, and was interviewed by defendant Sergeant Garza in mid October 2008, but nothing further was done. On November 23, 2008, Plaintiff was moved back to a cell in B-section in order to utilize the ADA shower. (Id., p. 5, ¶¶ 13-20.)

Plaintiff also alleges that he is denied a kosher diet in compliance with his faith, which consists of House of Yahweh, Kaballah, and Hebrew/Islam. (Id., p. 7, ¶ 31.)

Plaintiff also alleges that defendant physician assistant T. Breyers acted to deny Plaintiff's non-pharmaceutical treatment accommodations because Plaintiff does not meet the criteria for the issuance of double mattresses and pillows. (Id., p. 8, ¶ 35.)

Plaintiff also alleges that on December 27, 2008, inmate Hill, Plaintiff's cell mate at the time, threatened to kill himself. Hill was transported to C-clinic, where he then informed sergeant Lunas that Hill was going to hurt Plaintiff if Plaintiff was not moved. Sergeant Lunas ordered Plaintiff's cell searched. Upon Plaintiff's return to his cell, he declared it "trashed" and demanded to be returned to ASU. Plaintiff was then pushed by officer Agostini back to C-clinic. Lunas informed Plaintiff that Plaintiff would be written up for threatening sergeant Lunas. Lunas stated that Plaintiff would be transferred to another facility after spending nine months in the Secure Housing Unit. Officers Agostino and Patton both stated that Plaintiff did not threaten Lunas. (Id., pp. 10-11, ¶¶ 45-57.)

Plaintiff seeks injunctive relief for the return of his property. (Doc. 1, p. 5.) Plaintiff seeks the implementation of a kosher diet for Plaintiff as well as a double mattress and pillows. (Doc. 1, p. 3.) Plaintiff seeks monetary damages. (Id.) Plaintiff also seeks immediate release from ASU, issuance of Plaintiff's legal ...


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