The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATION ECOMMENDING DISMISSAL OF ACTION FOR FAILURE TO STATE A CLAIM OBJECTIONS DUE WITHIN TWENTY-ONE DAYS
Findings and Recommendation
Plaintiff Ebone Leroy East ("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. Plaintiff initiated this action by filing his complaint on June 11, 2010.
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 Atl. 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.'" Id. (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id.
Plaintiff is currently incarcerated at California Correctional Institution ("CCI") in Tehachapi, California, where the events giving rise to this action occurred. Plaintiff names as Defendants: correctional officers G. Kabonic, Duff, H. Mendoza, and S. Gommier, appeals coordinator K. Sampson, correctional lieutenant T. Haak, and associate governmental program analyst J. Zanchi.
Plaintiff alleges the following. On September 22, 2009, Plaintiff was placed in a behavioral management unit ("BMU") for refusing to accept a cell mate. Plaintiff contends that the proposed cell mate was a member of a gang, and that placing such a cell mate with Plaintiff would lead to cell fights or other disruptive behavior. The BMU cell conditions are extreme in that there is a potential of harm for back problems. The cell contains only a 2-inch thick mat, with no bedding tables, or shelves for your belongings. Plaintiff contends that due process requires that he be seen by the institutional classification committee prior to BMU placement. Compl. 23-25.*fn1
In Count One, Plaintiff alleges that Defendant Kabonic issued a rules violation report ("RVR") against Plaintiff on September 10, 2009 for obstructing a peace officer for Plaintiff's refusal to accept a possible gang-affiliated cell mate, which led to Plaintiff's placement in BMU for over twenty days. Compl. 52-56. In Count Two, Plaintiff alleges that Defendant Duff retaliated against Plaintiff by having him placed in a BMU cell. Compl. 56-59. In Count Three, Plaintiff alleges that Defendant H. Mendoza retaliated against Plaintiff by having him placed in a BMU cell. Compl. 60-64.
In Count Four, Plaintiff alleges that Defendant S. Gommier was assigned as Plaintiff's investigative employee to investigate Plaintiff's RVR. Compl. 64-68. Plaintiff contends that he is a participant in the mental health services delivery system at prison, and had demanded that a staff assistant be assigned. Plaintiff had provided a handwritten statement regarding the charge and questions for potential witnesses. Defendant S. Gommier allegedly deprived him of this right by not gathering information from inmate Pratt and mental health staff.
In Count Five, Plaintiff alleges that Defendant K. Sampson retaliated against Plaintiff for his filing of inmate grievances. Compl. 68-71.
In Count Six, Plaintiff alleges that Defendant T. Haak threatened Plaintiff with sexual misconduct and placement in a BMU cell for his filing of inmate grievances. Compl. 72-75.
In Count Seven, Plaintiff alleges that Defendant J. Zanchi retaliated against Plaintiff for his filing of ...