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Lamon v. Tilton

June 30, 2009

BARRY LAMON, PLAINTIFF,
v.
JOHN TILTON, ET AL., DEFENDANTS.



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

FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT CERTAIN CLAIMS AND DEFENDANTS BE DISMISSED FROM ACTION (Doc. 41) OBJECTIONS, IF ANY, DUE IN THIRTY DAYS

Findings and Recommendations Following Screening of Third Amended Complaint

I. Screening Requirement

Plaintiff Barry Lamon ("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 this action on March 29, 2007. On September 12, 2008, the Court dismissed Plaintiff's second amended complaint, with leave to amend, for failure to comply with Rules 8 and 18(a) of the Federal Rules of Civil Procedure. Plaintiff filed a third amended complaint on December 18, 2008, which is subject to the Court's screening below.

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).

II. Summary of Plaintiff's Third Amended Complaint

Plaintiff is presently incarcerated at California State Prison - Corcoran ("CSP-Corcoran"), where the events at issue allegedly occurred. Plaintiff names over seventy-five defendants in this action. The defendants include at least four Doe defendants, thirty-one correctional officers, four correctional counselors, four correctional cooks, a registered dietitian, nine correctional sergeants, a correctional lieutenant, three inmate appeals coordinators, two staff psychologists, two staff psychiatrists, a correctional rabbi, eight supervising cooks, the food manager and the assistant food manager, two facility captains, three associate wardens, the warden at CSP-Corcoran, the Inmate Appeals Examiner, and finally, the Secretary of the California Department of Corrections and Rehabilitation ("CDCR").

Plaintiff alleges that he was transferred to CSP-Corcoran on February 23, 2006. Plaintiff states that he was previously housed at California State Prison - Sacramento ("CSP-Sac"). Plaintiff states that while housed at CSP-Sac, he filed a civil action, Lamon v. Pliler et al., bearing case number CIV-S-03-0423 FCD CMK P, against various correctional staff at CSP-Sac regarding the conditions of his confinement at that prison. Plaintiff states that CSP-Sac officials, namely the warden, retaliated against him by, inter alia, conspiring to have him killed by prison gang members, placing him in punitive segregation and also in punitive psychiatric segregation, censoring and stealing Plaintiff's mail, and tainting and/or poisoning Plaintiff's food. Plaintiff states that CSP-Sac officials then transferred him to CSP-Corcoran in order to render moot his motions for temporary restraining orders. Plaintiff states that since arriving at CSP-Corcoran, his meals have been tainted, he has been placed in unfavorable cells, his mail is censored, and he has been physically assaulted. This instant action concerns only Plaintiff's conditions of confinement at CSP-Corcoran.

A. Claims One*fn1 , Two, Three, Four, Five, Six, Eight (Re Allegation of Forced Medical Treatment*fn2 ), Ten, Twelve, Thirteen, and Fourteen

Plaintiff alleges that all defendants have retaliated and conspired to retaliate against him for filing prison grievances, pursuing legal action, and for demanding an investigation into his allegations that the warden at CSP-Sac as well as members of his administration are attempting to have Plaintiff killed. Plaintiff alleges that prison officials at CSP-Corcoran conspired with the Warden at CSP-Sac to place Plaintiff in punitive segregation at CSP-Corcoran, robbing him of all the beneficial, rewarding, enlightening, or helpful prison programs and "the good within them", thus reducing him to a "horrific, miserable, demoralized, Pain-Filled and insufferable...existence" (Doc. 41, p.16.) Plaintiff states that defendants have ignored his written complaints.

Plaintiff further alleges that medical staff improperly diagnosed him as mentally ill and subjected him to psychiatric treatment to discredit him and dismiss his allegations of retaliation as mere delusions, and to portray him as insane. Plaintiff alleges that the medical staff conspired with various other prison officials as part of an "elaborate scheme" to misdiagnose him as schizo-affective and a "delusional schizoid". Plaintiff alleges that he is being treated with "ultra-politicized" and unnecessary anti-psychotic drugs.

Plaintiff also alleges that there is a "food-tainting shadow policy" at CSP-Corcoran, and that the medical staff informed him that he would not be able to escape the tainting. Plaintiff alleges that one staff psychologist acknowledged the tainting but refused to do anything. Plaintiff states that his meals, beverages, lotions, gels and food packages at home are being tainted with cleaning detergents and other unknown chemicals that cause him excruciating pain. Plaintiff states that he has complained to prison doctors, but that various nurses have also tainted his medication with chemicals. Plaintiff states that these efforts are attempts to dissuade Plaintiff from pursuing his allegation that the Warden is attempting to have him killed. Plaintiff states that his written complaints have been ignored. Plaintiff's tenth claim is directed at supervisory defendants whom plaintiff alleges failed to train, supervise and discipline their subordinates and failed to interfere to prevent the food tainting. Plaintiff also alleges state claims for assault and battery, and for multiple violations of the California Constitution.

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)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). Determining whether a complaint states a plausible claim for relief is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense[.]...Where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not 'show[n]'-'that the pleader is entitled to relief.'" Id, at 1950; Fed. R. Civ. P 8(a)(2). While factual allegations are accepted as true, legal conclusion are not. Id. at 1949.

Plaintiff's claims rest upon his allegations that prison officials are engaged in an elaborate and seemingly coordinated conspiracy to retaliate against him by having staff psychologists and psychiatrists diagnose him as delusional, others prison staff enforcing a "shadow-policy" of food tainting, medical staff poisoning his medication, others placing him in segregation, and nearly all supervisory defendants ignoring his written complaints for help. Plaintiff alleges that defendants are collectively acting to discourage him from proceeding with his litigation activities. The Court simply cannot find that Plaintiff's claims state a plausible claim for relief. Common sense and judicial experience leads this Court to conclude that the claims as presented are facially implausible and therefore the Court recommends that these claims be dismissed for failure to state a claim.

B. Claim Seven (Living Conditions)

Plaintiff alleges that from September 15, 2006 through March 29, 2007, defendants Luna, Price, Wilber, Vikjord, Aspieda, Magvass, Vanzant, Hamilton, Cortez, Frescura, Elize, Alvarez and Hernandez retaliated against Plaintiff by serving him only one-third to one-half portions of ...


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