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Lipsey v. Schwarzenegger

December 14, 2009


The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge


(Doc. 12)

Screening Order

I. Screening Requirement

Plaintiff Roderick Lipsey, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on November 10, 2008. On February 17, 2009, the Court dismissed Plaintiff's complaint, with leave to amend, and Plaintiff filed an amended complaint on April 28, 2009.

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).

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)). "[P]laintiffs [now] face a higher burden of pleadings facts..," Al-Kidd v. Ashcroft, 580 F.3d 949, 977 (9th Cir. 2009), and while a plaintiff's allegations are taken as true, courts "are not required to indulge unwarranted inferences," Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).

Under section 1983, Plaintiff must demonstrate that each defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002) (emphasis added). This requires the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S.Ct. at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Id.

II. Plaintiff's Claims

A. Summary of Amended Complaint

Plaintiff is currently housed at California State Prison-Sacramento. The events at issue in this action allegedly occurred on or around April 14, 2006, at California Correctional Institution (CCI) in Tehachapi, following Plaintiff's "retaliatory" transfer from California State Prison-Lancaster (CSP-Lancaster). (Doc. 12, Amend. Comp., court record p. 7.) Plaintiff alleges that prior to his transfer to CCI, an incident occurred with six other Muslim inmates in which Plaintiff was "brutally and savagely" beaten by a correctional officer because he is Muslim. (Id.) Plaintiff alleges that following his arrival at CCI, he was subjected to cruel and unusual punishment, retaliated and discriminated against, and denied access to the courts, in violation of his federal constitutional rights.

This is an action for money damages, and Plaintiff names Governor Arnold Schwarzenegger, Inmate Appeals Branch Chief N. Grannis, Acting Director Richard Rimmer, Secretary Roderick Q. Hickman, Warden Sullivan, Associate Warden Carrasco, Correctional Counselor Ramos, Correctional Counselor T. Gassaway, Correctional Counselor Cowee, Appeals Coordinator K. Simpson, Correctional Sergeant Dailo, Correctional Officer E. Granillo, Correctional Officer M. Robinson, Correctional Officer Snyder, Correctional Sergeant Ellis, Registered Nurse T. Patridge, Doctor T. Vo, Medical Technical Assistant Estrada, Registered Nurse G. Meyers, and Correctional Officer Podratz as defendants.

B. Claim Against Defendants Ellis and Does 1-5

Plaintiff alleges that upon his arrival at CCI, he was met by Defendant Ellis to conduct a video taped interview, which documented the head and eye injuries, broken arm, hand and wrist lacerations, and back and chest bruises Plaintiff sustained in the beating by the correctional officer at CSP-Lancaster. Plaintiff alleges that Defendant Ellis and Does 1-5 threatened him with death.*fn1

Verbal harassment or abuse alone is not sufficient to state a constitutional deprivation under section 1983, Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987), and threats do not rise to the level of a constitutional violation. Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987). Therefore, Plaintiff allegation that he was threatened is ...

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