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Anthony E. Mack v. M. K. Witcher

February 4, 2011

ANTHONY E. MACK,
PLAINTIFF,
v.
M. K. WITCHER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge

COMPLAINT DISMISSED WITH LEAVE TO AMEND (ECF No. 22)

SECOND AMENDED COMPLAINT DUE WITHIN THIRTY DAYS

SECOND SCREENING ORDER

I. PROCEDURAL HISTORY

Plaintiff Anthony E. Mack ("Plaintiff") is an inmate in the custody of the California Department of Corrections and Rehabilitation and is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff originally filed this action on June 1, 2004. (ECF No. 1.) The Court found that Plaintiff failed to state a cognizable claim and granted him leave to amend on May 28, 2009. (ECF No. 14.) After multiple extensions of time, Plaintiff filed an amended complaint on October 23, 2009.

(ECF No. 22.) No other parties have appeared in this action.

It is this First Amended Complaint that is now before the Court for screening. For the reasons set forth below, the Court finds that Plaintiff has failed to state a claim upon which relief may be granted.

II. SCREENING REQUIREMENTS

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. Iqbal, 129 S.Ct. at 1949.

III. SUMMARY OF FIRST AMENDED COMPLAINT

Plaintiff brings this action for retaliation, conspiracy, denial of access to courts, violations of due process rights, and emotional distress in violation of the California Civil Code. Plaintiff names the following individuals as Defendants: M. K. Witcher, Associate Warden; M. Yarborough, Warden; W. J. Sullivan, Chief Deputy Warden; D. Chapman, Correctional Counselor II/Lieutenant; A. Lopez, Captain; K. E. Todd, Associate Warden;

J. Hughes, Sergeant; J. Kabler, Correctional Counselor; T. Traynham, Lieutenant; D. Zanchi, Hearing Officer; J. L. Peterson, Hearing Officer; M. Tyson, Hearing Officer, J. D. Ramos, Hearing Officer; E. Bull, Hearing Officer; M. Stainer, Hearing Officer; W. D. Nelson, Hearing Officer; D. J. Falkner, Hearing Officer; Herb Huebner, Litigation Coordinator; T. Peterson, Legal Officer; R. Redelsperger, Intake Property Officer; S. Diaz, Segregation Property Officer; B. Aguilar, Segregation Property Officer; M. Robinson, Intake Property Officer; J. Temperio, Correctional Officer; R. Rednius, Correctional Officer; Thomas S. Durham, Correctional Officer; D. Martinez, Officer; S. Buentiempo, Officer; K. Barr, Officer;

N. Sanchez, MTA Officer; T. Pull, Officer; S. Brass, Officer; J. Knudson, Officer; L. Haviland, Appeal Coordinator; and F. Schmidt, Appeal Coordinator. All above named Defendants worked at Tehachapi State Prison ("TSP") where the events occurred.

Plaintiff names the following individuals as Defendants as well but does not specify where they were employed: J. Garza, Sergeant; J. J. Cortez, Correctional Captain III; R. Hargrove, Correctional Captain III; L. Luu, Correctional Captain III; Nola Grannis, Chief of Inmate Appeals; Linda Rianda, Chief of Inmate Appeals; Troy Lofton, Chief of Inmate Appeals; Hernandez, Sergeant; and J. Pitko, ISU Captain.

Plaintiff's alleges that during the period May 14, 2001 to July 10, 2003, Defendants routinely subjected him to retaliation for filing multiple grievances and actions against prison officials. The following is a condensed version of Plaintiff's detailed and seemingly endless statement of facts and complaints.

On May 14, 2001, Plaintiff was transferred from Salinas Valley State Prison to TSP. At TSP, Plaintiff was wrongfully housed in the Secured Housing Unit ("SHU"). He had housing committee appearances on May 24, 2001 and May 31, 2001 and filed grievances objecting to his housing status after each hearing. He was then released to the general population. During a committee appearance, Defendant Witcher told Plaintiff that he knew about his legal activities and that Plaintiff would not be allowed single-cell status anymore.

On June 1, 2001, Plaintiff tried to retrieve his belongings from Receiving and Release ("R&R") pursuant to a directive issued by prison official Shilay. Defendant Hughes told Plaintiff that he was not going to get his property and made threatening comments about Plaintiff "snitching" on officers. Hughes then called Defendant Chapman and informed her of the situation. On June 2, Plaintiff filed a grievance about this episode; it was destroyed and/or never returned to him.

On June 12, 2001, Plaintiff appeared before the committee for program assignment. Defendants Witcher and Chapman were both on the committee. They told him they had heard of his complaints, and they then retaliated by revoking his single-cell status. Defendants also informed him that if he could find a cellmate, he could retrieve his belongings. Later that same day, Plaintiff again attempted to retrieve his belongings. However, he was turned away from R&R by Defendant Ball who said that Defendant Hughes needed to see him. In Defendant Hughes's office, Plaintiff found Defendants Hughes, Hernandez, Doe, and Chapman. Defendants again advised Plaintiff that he would never receive his belongings unless he found a cellmate. After the shift change, Plaintiff again attempted to retrieve his property. Defendant Redelsperger informed Plaintiff that Defendants Hughes and Hernandez had instructed that Plaintiff not be allowed to retrieve his belongings. Plaintiff returned to the R&R at the third shift and asked for his property. Defendant Chapman came out and threatened him with administrative segregation and physical harm. On June 13, Plaintiff filed a grievance about this episode.

On June 14, 2001, Defendant Chapman screamed at, threatened, and pushed Plaintiff. Plaintiff filed a grievance for this episode on June 18.

On June 19, 2001, Plaintiff received his belongings.

Between June 12 and July 10, 2001, Defendant Chapman sent possible cellmates to Plaintiff's cell. Between June 26 and July 31, Plaintiff had two cellmates, both incompatible. On June 26, Plaintiff filed a grievance concerning the lack of cell space and the illegal double-celling of unwilling inmates among other things. On July 11, 2001, Defendants Chapman and Traynham asked Plaintiff about his June 18 and June 26 grievances and then destroyed them.

On August 6, 2001, Plaintiff was summoned by Defendant Redelsperger to R&R to speak with Defendant Hughes. Defendant Hughes asked Plaintiff about another grievance and threatened him.

On August 8, 2001, Plaintiff was moved to a different cell block for the purpose of being harassed by Defendant Knudson. Defendant Knudson failed to open Plaintiff's cell door multiple times. On August 13, Plaintiff filed a grievance with Defendant Knudson, and it was destroyed. On August 14, officers surrounded Plaintiff and put him in restraints and placed him in a holding cell for allegedly refusing to lock up. On August 19 through August 21, Defendant Knudson refused to open Plaintiff's cell door. Plaintiff told several other Defendants, but no action was taken.

On August 22, 2001, after a confrontation in the yard, Defendant Knudson alleged that he felt threatened by Plaintiff. Plaintiff was placed in restraints and taken to a holding cell. All of Plaintiff's property was inventoried and placed in R&R for storage. Plaintiff was transferred to SHU and charged with disruptive behavior with a potential for violence, not an offense meriting being sent to SHU. Defendant Zanchi performed the 72-hour lock up order review and refused to release Plaintiff. Defendant Chapman reclassified the incident as threatening staff, an offense that can result in confinement in SHU.

On August 26, 2001, Defendant Knudson began working in administrative segregation ("ad-seg"). Defendants Knudson, Durham, and Rednius verbally abused Plaintiff. Plaintiff filed a grievance on August 28. It was destroyed.

On August 29, 2001, Plaintiff appeared before prison official Shilay, Defendant Chapman, and Defendant Witcher for a housing classification hearing. On August 31, Plaintiff spoke with Defendant Peterson about receiving his legal materials from R&R. She told him that he should not have crossed Defendant Chapman and that if he crossed her (Peterson), she would wreck his life. On September 10, Plaintiff received his materials. During the month of September, Peterson, who handed out legal mail, made many more threats to Plaintiff.

On September 26, 2001, Plaintiff was brought before the hearing committee for adseg review. The committee decided to keep him in ad-seg. On September 27, Plaintiff was found guilty by Defendant Tyson of threatening Defendant Knudson.

On October 2, 2001, Defendant Peterson brought legal mail to Plaintiff. However, upon opening it and finding a letter and a magazine, she deemed it contraband and confiscated it. On October 3, Plaintiff and Defendant Peterson had another verbal confrontation. Plaintiff filed a grievance against Defendant Peterson. This grievance was screened out by Defendant Haviland in retaliation. On October 5, Defendant Peterson falsely charged Plaintiff with circumventing the legal mail procedure.

On October 9, 2001, Plaintiff spoke with Defendant McLaughlin about an upcoming deposition regarding a previously-filed grievance. Defendant McLaughlin warned Plaintiff that Defendant Yarborough had asked about him, that everyone knew Plaintiff from his previous legal actions, and that Plaintiff should watch what he said and did. Plaintiff filed a grievance against Defendant McLaughlin. This grievance was kept or destroyed by Defendants.

On October 24, 2001, Plaintiff was given nine months in SHU by Defendants Todd and Nelson.

On October 26, 2001, Plaintiff was having a conversation with another inmate about filing grievances against prison officials. Defendants Rednius, Martinez, and Peterson overheard this conversation and a verbal confrontation between Plaintiff and Peterson ensued. Plaintiff was told that he had to find a cellmate. Plaintiff claimed to be incompatible with two inmates, and was then denied yard that afternoon and charged with refusing a cellmate. Plaintiff's yard privileges were suspended pending adjudication. Later that same day, Plaintiff's cell was searched by Defendants Peterson and Martinez with the help of Defendant Brass. When Plaintiff was returned to his cell after the search, he discovered that the grievance he was writing about Defendants Peterson and Rednius was missing. On November 1, Defendant Martinez issued Plaintiff a disciplinary infraction for over-familiarity.

On October 30, 2001, Plaintiff filed a grievance, which was kept or destroyed by officials. Also on October 30, there was a confrontation between Plaintiff and Defendants Rednius and Peterson at the law library. Peterson charged Plaintiff with delaying a peace officer.

On October 31, 2001, Plaintiff had another confrontation with Defendants Rednius and Durham regarding Plaintiff's treatment of the female staff. On November 1, Plaintiff wrote a grievance for both the law library incident and the confrontation about the female staff. Plaintiff gave these grievances to Defendant Huebner, who said he would file them with the appeals office. Plaintiff never received anything in return.

On November 8, 2001, Plaintiff had several verbal confrontations with different Defendants including Durham, Rednius, Martinez, Traynham, and Witcher. The following day, Plaintiff was interviewed by prison official Shilay, who said because errors had occurred, a classification hearing would be scheduled to rescind the SHU term and reduce the charges to disobedience.

On November 15, 2001, Plaintiff's cell was searched and Defendant Dessenberger confiscated drawings she perceived to be of Defendant Martinez. Plaintiff was again written up for over-familiarity. A hearing was held by Defendant Traynham on November 18 regarding the over-familiarity charges. Even thought Plaintiff did not receive a copy of the I.C. report 24 hours prior to the the hearing as required by prison regulations, the hearing was held. Plaintiff was found guilty.

On November 19, 2001, when Plaintiff was scheduled to go to a committee classification hearing, Defendant Traynham decided to move him from B Yard to A Yard. Plaintiff was told to pack his belongings. Plaintiff demanded to speak with superiors.

Defendant Traynham said that he and Defendant Witcher wanted Plaintiff moved and that the decision was final. While waiting to be moved, Defendants Rivera and Gant appeared. Defendant Rivera stated that she was there to read Plaintiff his rights because a knife was found in his stored property. Plaintiff was charged with possession of a weapon. Plaintiff stated that it was planted there by one of the following Defendants Redelsperger, Hughes, Rednius, Durham, Peterson, Tempiero, Smith, or Thomas.

On November 20, 2001, Plaintiff was sent to A Yard where he found his cell very cold and the heater broken. He alerted staff, but no action was taken. Plaintiff filed a grievance about this issue on ...


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