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Rogers v. Scribner

June 16, 2009

ROBERT ROGERS, PLAINTIFF,
v.
WARDEN A K SCRIBNER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER REQUIRING PLAINTIFF EITHER TO FILE AMENDED COMPLAINT OR TO NOTIFY COURT OF WILLINGNESS TO PROCEED ON CLAIMS FOUND TO BE COGNIZABLE

(Doc. 1)

(RESPONSE DUE WITHIN THIRTY DAYS)

Plaintiff Robert Rogers ("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 is in the custody of the California Department of Corrections and Rehabilitation and was incarcerated at California State Prison-Corcoran ("CSP-Corcoran") at the time the events in his complaint took place. Plaintiff is suing under section 1983 for the violation of his rights under the Eighth and Fourteenth Amendments to the U.S. Constitution. Plaintiff names the following individuals as defendants: (1) A. K. Scribner, warden; (2) D. G. Stockman, associate warden; (3) V. Yamamoto, associate warden; (4) R. R. Lowden, captain; (5) D. D. Ortiz, captain; (6) D. Bravo, correctional counselor-II; (7) J. Denny, correctional lieutenant; (8) R. L. Miller, correctional lieutenant; (9) A. A. Walker, correctional lieutenant; (10) W. E. Villareal, correctional lieutenant; (11) R. Vella, correctional lieutenant; (12) Nate Dill, Jr., facility captain, (13) S. Sherman, correctional captain, (14) J. Montgomery, correctional sergeant; and (15) Michael Alvarez, correctional officer.

For the reasons set forth below, Plaintiff will be given the opportunity to amend his complaint, or proceed only on the claims found cognizable in this order.

I. 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. P. 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. P. 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)).

II. Background

Plaintiff complains about his placement in Administrative Segregation ("Ad-Seg" at CSP-Corcoran for a term of 835 days. Plaintiff alleges that he has a protected liberty interest in not being given an 835 day Ad-Seg term because the conditions in Ad-Seg posed an atypical and significant hardship compared to the conditions in the general population. Plaintiff also alleges that placement in Ad-Seg constituted cruel and unusual punishment because he was denied adequate medical care, clothing, and heat while in Ad-Seg.

Plaintiff was initially placed in Ad-Seg in February 2002 for being suspected of trafficking marijuana in the prison. Plaintiff complains that the Ad-Seg placement notice was inadequate because it failed to provide sufficient information regarding confidential information from informants that was used against Plaintiff. Plaintiff was not told that confidential information was used, nor given any information regarding the reliability of the informants used. Plaintiff appeared before multiple Institutional Classification Committee ("ICC") meetings to evaluate Plaintiff's placement in Ad-Seg. Plaintiff complains that at each of the ICC meetings, he was given inadequate information regarding the evidence used to justify his Ad-Seg placement. Plaintiff makes similar complaints about the procedural deficiencies at his Rules Violation Report ("RVR") hearings.

Plaintiff was scheduled to return to the general population in August 2002. However, Plaintiff was retained in Ad-Seg due to concerns that Plaintiff posed a danger to the other inmates in the general population. Plaintiff was not informed of the evidence that this decision was based on and could not adequately challenge the placement decision.

In September 2002, Plaintiff was found guilty of the RVR accusing him of distributing marijuana in the prison. Later, a Classification Staff Representative ("CSR") reviewed Plaintiff's file and discovered the evidentiary deficiencies in the RVR decision. The RVR was re-issued and scheduled to be re-heard. Plaintiff was found guilty a second time in March 2003. In July 2003, another CSR reviewed Plaintiff's file and deferred the finding from the second disciplinary hearing because of perceived due process issues. Plaintiff was charged a third time with an RVR but the charges were eventually dropped. Plaintiff was charged three times with disciplinary violations but ultimately was not found guilty. Plaintiff returned to the general population in May 2004.

Plaintiff alleges that placement in Ad-Seg was an atypical and significant hardship. Plaintiff alleges that he is HIV-positive and has a compromised immune system. While in Ad-Seg, Plaintiff was seen by a doctor only once a month. Plaintiff alleges that he suffered from "shingles" while in Ad-Seg and was not given proper medical treatment. Plaintiff further alleges that he was deprived of adequately warm clothing and his shoes had worn down at the bottom. Plaintiff alleges that the lack of adequate clothing and exposure to the elements combined with his compromised immune system posed a significant health risk. Plaintiff also alleges that while in Ad-Seg because he was frequently exposed to pepper spray used on other ...


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