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Smith v. Tallerico

June 19, 2009

CLAUDE RAYMOND SMITH, PLAINTIFF,
v.
S. TALLERICO, ET AL., DEFENDANTS.



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

ORDER REQUIRING PLAINTIFF EITHER FILE AMENDED COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON CLAIMS FOUND TO BE COGNIZABLE (Doc. 1) RESPONSE DUE WITHIN THIRTY DAYS

I. Screening Order

Plaintiff Claude Raymond Smith ("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 onNovember 26, 2008. (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 § 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 a state prisoner currently housed in Vacaville, California. Plaintiff was previously incarcerated in Corcoran State Prison ("CSP") in Corcoran, California, where the acts he complains of occurred. Plaintiff names as defendants: S. Tallerico, Correctional Counselor I/II; W. Hense, acting captain; S. S. Freitas, Correctional Counselor I; Lonnie A. Watson, Chief Deputy Warden; C. Rodriguez, Correctional lieutenant; J. P. Cordova, Correctional Counselor II; D. D. Ortiz, associate warden; P. Stockman, associate warden; C. Boyer, sergeant; correctional officers ("C/O") B. Johnson, V. Lloren, J. Gerten, and P. DeOchoa; G. Rangel, CCII; associate warden D. G. Stockman; and Correctional Counselor II J. Jones.

Plaintiff alleges the following. On November 25, 2004, Plaintiff was attacked in his cell by inmate Sample with a sock containing numerous bars of soap. (Doc. 1, p. 3.) Plaintiff was knocked unconscious. (Id.) Sample had attempted to choke Plaintiff, but Plaintiff was able to gain his freedom. (Id.) Plaintiff informed building officers of the incident. (Id.)

Sample had been designated for single cell status. (Id.) However, inmate Sample had been placed in Plaintiff's cell on November 17, 2004. (Id., p. 4.) Sample had been released from administrative segregation ("ad seg") following a battery on his previous cell mate. (Id.) While Sample was in ad seg, he had become involved in a physical altercation with another inmate. (Id.) Defendants W. Hense, S. Tallerico and S. S. Freitas, during Sample's classification on March 11, 2004, had failed to properly instruct other staff that Sample had a propensity for violence. (Id., pp. 4-5.) CSP administration had failed to inform Facility 3A staff of Sample's violent propensities and thus failed to take reasonable measures to protect Plaintiff from assault. (Id., p. 5.)

Defendant sergeant C. Boyer had placed Sample in Plaintiff's cell and told him that if Plaintiff refused to accept Sample, Plaintiff would be placed in ad seg. (Id.) Defendant lieutenant Rodriguez was in change of the safety and security of all staff in the yard. (Id.) Defendant Correctional Counselor II G. Rangel's job was to review all of the classification call sheets for inmates being released into Facility 3A. (Id.) Defendants acting Captain J. P. Cordova and associate warden D. G. Stockman were responsible for programs and housing for Facility 3A. (Id.)

On May 15, 2005, defendant C/O Johnson wrote a false disciplinary report accusing Plaintiff of "Disruptive Behavior Which Could Lead to Violence." (Id., p. 7.) This charge was later reduced to a custodial counseling chrono apparently because the charge was bogus. (Id., p. 8.) On May 19, 2005, Plaintiff was falsely written up for "inciting disorder" by defendant C/O Lloren. (Id.)

On July 27, 2005, Plaintiff was placed in ad seg for "threatening an inmate," which later became "behavior which could lead to violence." (Id., p. 6.) An inmate co-worker had been ordered to set up Plaintiff, and Plaintiff ended up in ad seg. (Id.) While in ad seg, Plaintiff's personal property was stolen/lost by defendants C/Os J. Gerten and P. DeOchoa, including the director's level response to his inmate grievance concerning the cell fight. (Id., pp. 6-7, 9.) Plaintiff filed an inmate property grievance. (Id., p. 7.) Defendant J. Jones had rejected Plaintiff's grievance on November 13, 2006, which delayed Plaintiff's writ of habeas corpus filed in Kings County Superior Court. (Id.)

On February 9, 2006, at Plaintiff's classification hearing, defendants S. Tallerico and J. P. Cordova continued the conspiracy to violate Plaintiff's civil rights by raising Plaintiff's classification score and sending Plaintiff to a higher, level 4 facility rather than reducing Plaintiff's classification point total so that he could remain at a level 3 facility. (Id., pp. 10-11.)

As a result of the attack by Sample, Plaintiff has problems hearing out of his right ear, worsened eyesight, and loss of equilibrium. (Id., pp. 11-12.) The defendants and CDC officials have interfered with Plaintiff's ability to file this complaint by not providing Plaintiff with a copy of the director's level response to his inmate grievance regarding the attack. (Id., p. 12.)

Plaintiff seeks as relief monetary damages, single cell status, a court-appointed attorney, and an injunction prohibiting ...


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