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Trevino v. McBride

April 9, 2009

ROBERT TREVINO, PLAINTIFF,
v.
DEFENDANTS MCBRIDE, ET AL., DEFENDANTS.



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

FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF CERTAIN RESPONSE DUE WITHIN THIRTY DAYS (Docs. 6, 7)

I. Findings and Recommendations Following Screening of Amended Complaint

Plaintiff Robert Trevino ("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 on October 29, 2008. (Doc. 1.)

On March 17, 2009, the Court issued an order finding that Plaintiff's allegations give rise to cognizable claims for relief under section 1983 against defendants Roberts and for retaliation in violation of the First Amendment. (Doc. 6.) However, the Court found that Plaintiff's allegations do not give rise to any claims for relief against defendants McBride, Yates, and the director of the CDC. The Court ordered Plaintiff to either file an amended complaint or notify the Court that he wishes to proceed only on his cognizable claims. On April 6, 2009, Plaintiff notified the Court that he does not wish to amend and wishes to proceed only on claims identified by the Court as cognizable. (Doc. 7.) Based on Plaintiff's notice, the instant Findings and Recommendations now issues.

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 Pleasant Valley State Prison ("PVSP") in Coalinga, California, where the acts he complains of occurred. Plaintiff names the following defendants: correctional sergeant McBride and correctional officers Cano and Roberts. (Doc. 1, pp. 2:16-3:8.) Plaintiff also lists Yates, warden of PVSP, and the Director of the California Department of Corrections ("CDC") as parties to the complaint. (Id., p. 3:14-19.)

Plaintiff alleges the following. Defendants Cano and Roberts pulled Plaintiff and his former cell mate out of their cell to conduct a search. (Id., p. 4:22-24.) This was the second cell search in a week. (Id., pp. 25-26.) All the personal property that was confiscated was not contraband, and some of the property was legal property pertaining to two active cases. (Id., pp. 4:27-5:3.) Plaintiff confronted defendants Cano and Roberts regarding the confiscation of his property, and demanded a confiscation receipt from defendants Cano and Roberts. (Id., pp.5:23-6:1.)

Two or three days after this incident, Plaintiff confronted defendant McBride and told him that defendant Roberts had placed Plaintiff's property inside the "hot-trash" room. (Id., p. 6:10-16.) Plaintiff requested a return of his items. (Id.) Defendant McBride ignored Plaintiff's request. (Id., p. 6:17-21.) Plaintiff was placed in the hole for things he did not do, and is now up for transfer. (Id., pp. 6:27-7:5.)

Plaintiff seeks injunctive relief, appointment of counsel, and monetary damages. (Id., pp. 11:20-12:2.)

C. Plaintiff's Claims

1. Due Process - ...


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