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Bardo v. Martel

September 2, 2010

ROBERT J. BARDO, PLAINTIFF,
v.
M. MARTEL, ET AL., DEFENDANTS.



ORDER

Robert J. Bardo, an inmate confined at Mule Creek State Prison, filed this pro se civil rights action under 42 U.S.C. § 1983. In addition to filing a complaint, plaintiff has filed an application to proceed in forma pauperis. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

I. Request to Proceed In Forma Pauperis

Plaintiff has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Dckt. No. 2. His application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2). Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C. § 1915(b)(1) and (2).

II. Screening Order

Pursuant to 28 U.S.C. § 1915A, the court shall review "a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity." 28 U.S.C. § 1915A(a). "On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief." Id. § 1915A(b).

The court has reviewed plaintiff's complaint and, for the limited purposes of § 1915A screening, finds that it states potentially cognizable claims against defendants Lockhart, Butcher, and Ramos. For the reasons stated below, the allegations against Green, Chamberlin, Knipp, Martel, Pimental, McCloughan, Machado, Long, Porter, Clendenin, Lackner, Garcia, Chambers, Kaplan, Vanni, Wilson, Phillips, Reyes, Hutchins, Batchelor, Purviance, Luck, Islas, Dobler, Woolbright, Stewart, Thomas and Bueno, are dismissed.

A district court must construe a pro se pleading "liberally" to determine if it states a claim and, prior to dismissal, tell a plaintiff of deficiencies in his complaint and give plaintiff an opportunity to cure them. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000). While detailed factual allegations are not required, "[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 to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570).

A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.

Id. (citations and quotation marks omitted). Although legal conclusions can provide the framework of a complaint, they must be supported by factual allegations, and are not entitled to the assumption of truth. Id. at 1950.

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements:

(1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). An individual defendant is not liable on a civil rights claim unless the facts establish the defendant's personal involvement in the constitutional deprivation or a causal connection between the defendant's wrongful conduct and the alleged constitutional deprivation. See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978).

Plaintiff alleges that on February 24, 2009, defendants Lockhart, Butcher, and Ramos searched plaintiff's cell in retaliation for a federal civil rights lawsuit filed by plaintiff. Plaintiff alleges that these defendants confiscated photographs of the late actress Rebecca Schaeffer, a pair of headphones, and T.V. Guide magazines. Exhibit A to plaintiff's complaint indicates that the photographs were confiscated because Ms. Schaeffer was plaintiff's murder victim. Plaintiff is currently serving a life sentence for that crime. Compl., Ex. A. Prison officials confiscated the photographs on the ground that allowing plaintiff to possess them would be contrary to the rehabilitative process and would not be in the interest of public safety or institutional safety. Liberally construed, these allegations may state cognizable claims against these defendants.

Plaintiff also alleges defendants Green, Chamberlin, Knipp, Martel, Pimental, McCloughan, Machado, Long, Porter, Clendenin, Lackner, Garcia, Chambers, Kaplan, Vanni, Wilson, Phillips, Reyes, Hutchins and Batchelor violated his constitutional rights in processing/denying plaintiff's various administrative appeals. Plaintiff may not impose liability on a defendant simply because he or she played a role in processing plaintiff's inmate appeals, as there are no constitutional requirements regarding how a grievance system is operated. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (holding that prisoner's claimed loss of a liberty interest in the processing of his appeals does not violate due process because prisoners lack a separate constitutional entitlement to a specific prison grievance system). Claims against these defendants are therefore dismissed.

Plaintiff alleges that on February 23, 2007, defendants Purviance and Luck confiscated unspecified non-contraband items from plaintiff's cell and refused to give plaintiff a chance to send items home as allowed by CDCR policy. Plaintiff also alleges that on July 27, 2007, he had to send home three boxes of property in order to comply with Article 43 of the Department Operations Manual, section 54030, which limits an inmate's property to six cubic feet. Plaintiff alleges that defendants Islas, Dobler and Woolbright threw out plaintiff's non-contraband property, ...


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