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Clarke v. Tarnoff

April 8, 2010

CLYDE C. CLARKE, PLAINTIFF,
v.
TARNOFF, ET AL., DEFENDANTS.



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

FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED UNDER 42 U.S.C. § 1983 (Doc. 13) OBJECTIONS DUE WITHIN 30 DAYS

Findings and Recommendations Following Screening of Second Amended Complaint

I. Background

Plaintiff Clyde C. Clarke ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On February 11, 2009, Plaintiff filed the complaint which initiated this action. On June 4, 2009, the Court dismissed Plaintiff's complaint, with leave to file an amended complaint within thirty days. On August 20, 2009, after receiving an extension of time, Plaintiff filed his first amended complaint. Plaintiff then filed for another extension of time to file another amended complaint, which the Court granted. On September 24, 2009, Plaintiff filed his second amended complaint, which is the operative pleading before the Court.*fn1

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 (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). While factual allegations are accepted as true, legal conclusions are not. Id. at 1949.

II. Summary of Second Amended Complaint

Plaintiff is incarcerated at Kern Valley State Prison ("KVSP") in Delano, California, where the events giving rise to this action occurred. Plaintiff names as Defendants associate warden A. F. Hernandez, facility captain J. D. Soto, and correctional lieutenant H. Tyson.

Plaintiff alleges the following. On April 22, 2008, Plaintiff was sleeping inside his cell when various prison officers were conducting a security search of the housing unit. (Second Am. Compl. (SAC) ¶ 7.) During the security search, inmate Crayon was in route to be searched but stopped in front of Plaintiff's cell door and passed an object underneath. (SAC ¶ 8.) Officers who witnessed this act immediately came to Plaintiff's cell in search of the object. (SAC ¶ 8.) Both Plaintiff and his cellmate were ordered to exit, and were searched. (SAC ¶ 9.) Plaintiff had no narcotics on his person. (SAC ¶ 9.) Plaintiff's cellmate removed narcotics from his rectal area and surrendered it to a correctional officer. (SAC ¶ 9.) An officer searched Plaintiff's cell and discovered a bindle of narcotics on the cell floor in front of the toilet. (SAC ¶ 10.) All the searching officers corroborated these facts, yet Plaintiff was placed in administrative segregation unit (ASU) on the charge of possession of controlled substance for distribution. (SAC ¶ 11.)

Defendants Soto and Hernandez have a policy of always ruling against inmates, despite any facts or evidence to the contrary, based on race and Plaintiff's status as a prisoner. (SAC ¶ 12.) Plaintiff was held in ASU from April 22 to December 3. (SAC ¶ 12.) Plaintiff had an inability to sleep due to the excessive noise in ASU, suffered weight loss, had suicidal trends and was denied certain hygiene items. (SAC ¶ 12.)

Plaintiff was placed in the Crisis Treatment Center because of his suicidal trends. (SAC ¶ 13.) On June 27, 2008, Defendant Tyson acted as senior hearing officer and found Plaintiff guilty, despite Plaintiff not being prepared to proceed because of his suicidal trend, psychiatric observation, and psychiatric medications. (SAC ¶ 14.) Defendant Tyson imposed a finding of guilt, which resulted in loss of visiting privileges, contact visit privileges, and good time work credits. (SAC ¶ 14.)

Plaintiff alleges violations of the First, Sixth, Eighth, and Fourteenth Amendments, and California Government Code § 11135. Plaintiff seeks monetary damages.

III. Discussion

A. First ...


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