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Neal v. United States Penitentiary Atwater

September 1, 2009

DENARD DARNELL NEAL, PLAINTIFF,
v.
UNITED STATES PENITENTIARY ATWATER, ET AL., DEFENDANTS.



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

ORDER DISMISSING COMPLAINT, WITH LEAVE TO FILE AMENDED COMPLAINT WITHIN 30 DAYS

(Doc. 19)

Plaintiff Denard Darnell Neal ("Plaintiff") is a federal prisoner proceeding pro se and in forma pauperis in what this court construes as a civil action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), which provides a remedy for violation of civil rights by federal actors. Plaintiff was incarcerated at the United States Penitentiary in Atwater, California ("USP-Atwater") when the events in his complaint took place. Plaintiff names Hector A. Rios (warden, USP-Atwater), Alicia Gonzaga (mailroom supervisor), Kathy Burghardt Cobb (inmate trust fund controller), P. Carroll (custody staff), Jesse Estrada (special investigation agent), Joel Zaragoza ("S.I.S.*fn1 " staff), Jesus Valero ("S.I.S." Tech), and Robert Martinez (mailroom clerk) as defendants.

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

A. Procedural Background

Plaintiff initiated this action on October 16, 2008 with a pleading titled "Notice and Affidavit by Special Visitation of Third Party Interpleader; Petition for Writ of Mandamus". (Doc. #1.) The court construed Plaintiff's pleading as a Bivens complaint to vindicate alleged violations of Plaintiff's constitutional rights. The court screened the "complaint" on April 1, 2009 and dismissed it for failure to state any claims, and gave Plaintiff the opportunity to file an amended complaint that states cognizable claims. (Doc. #8.) Plaintiff filed his First Amended Complaint on May 6, 2009.

(Doc. #10.) Plaintiff filed a Second Amended Complaint on July 16, 2009. (Doc. #19.) This action proceeds on Plaintiff's Second Amended Complaint.

B. Factual Background

Plaintiff's Second Amended Complaint is difficult to understand and is at times incoherent.*fn2 Plaintiff appears to complain chiefly of three issues: 1) that his property is being stolen by prison officials; 2) his mail is being tampered with; and 3) that he was falsely accused of counterfeiting a promissory note.

On September 16, 2008, Plaintiff alleges that USP-Atwater was placed back on emergency lock-down after being removed from lock-down status on June 20, 2008. On October 2, 2008, staff entered Plaintiff's housing unit to conduct a weapons search. Plaintiff was instructed by staff to bag all of his property up, which Plaintiff did. Plaintiff was instructed to move to the "Secured Corridor", which Plaintiff alleges is an area where staff are unseen by other prisoners and used to avoid any accountability for damage done to prisoners' property. When Plaintiff returned to his cell, Plaintiff noticed that some of his legal materials were missing. Plaintiff alleges that the missing legal materials were related to a pending civil action in the United States Court of Appeals for the District of Columbia, and pertained to a civil action against the National Administrative Remedy Coordinator for the Bureau of Prisons in Washington D.C. All the documents pertaining to this case was seized as well as other legal documents related to Plaintiff's mother's taxes. Plaintiff alleges that Defendant Cobb directed and supervised all mass searches during lock-downs at USP-Atwater.

Plaintiff also alleges that staff at USP-Atwater have been tampering with his mail and that on one occasion, Plaintiff was charged with a retaliatory incident ...


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