The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF CERTAIN CLAIMS AND DEFENDANTS (DOCS. 13, 14) OBJECTIONS DUE WITHIN FOURTEEN DAYS
Plaintiff Stevie Stevenson ("Plaintiff") is a prisoner in the custody of the California Department of Correction and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action by filing his complaint in Kern County Superior Court on April 1, 2010. Defendants B. Kellums, O. Perales, and A. L. Reyes removed this action on August 2, 2010. On March 11, 2011, the Court screened Plaintiff's complaint. Doc. 13. The Court found that Plaintiff stated cognizable claims for retaliation and excessive force against Defendant Kellums. The Court also found that Plaintiff's claims against Reyes and Perales arose from a different transaction or occurrence, and was thus in violation of Rule 20(a)(2) of the Federal Rules of Civil Procedure. Plaintiff failed to state any other claims. Plaintiff was ordered either to file an amended complaint or notify the Court of his willingness to proceed only on claims found to be cognizable in the order. On April 11, 2011, Plaintiff filed notice with the Court that he wished to proceed only on the cognizable claims found. Doc. 14. Accordingly, the Court issues the following Findings and Recommendations.
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 was incarcerated at Kern Valley State Prison ("KVSP") in Delano, California, where the events giving rise to this action occurred. Plaintiff names as Defendants B. Kellums,
O. Perales, and A. Reyes.
Plaintiff alleges the following. Plaintiff was the executive chairman of the Inmate Advisory Council at KVSP. Defendant B. Kellums engaged in a series of actions against Plaintiff, starting on December 18, 2006 when he forbade Plaintiff from obtaining copies, and spread rumors that Plaintiff should be removed from IAC chairmanship because he was allegedly lazy and irresponsible. On January 23, 2007, Defendant Kellums ordered Plaintiff to throw away Defendant's garbage, which Plaintiff refused. Plaintiff attempted to report this to the captain, but was intercepted by Defendant Kellums. On February 26, 2007, Defendant Kellums made a racial slur against Plaintiff. On March 1, 2007, Defendant Kellums refused to escort Plaintiff to a medical appointment. On May 16, 2007, Defendant Kellums threatened to remove Plaintiff's inmate grievances filed against Defendant Kellums; the grievances disappeared. On May 23, 2007, Defendant Kellums again removed several other 602 inmate grievances filed against him. On June 27, 2007, while Plaintiff and another inmate were standing in front of the chapel, Defendant Kellums approached and stated to the inmate that he did not know that he hung around broads like Plaintiff. On July 8, 2007, Plaintiff was being visited by a Ms. Grayson. Defendant Kellums stared at her menacingly, such that Ms. Grayson became uncomfortable and considered ending her visit.
On July 9, 2007, Plaintiff was informed by other IAC members that Defendant Kellum had approached them with the proposition that if they removed Plaintiff from his position as chairman, then the prison guards would not be harassing the IAC. On July 12, 2007, Defendant Kellums confronted Plaintiff and challenged him to a fight and used various derogatory terms and racial slurs. Plaintiff complained to administrative staff, but nothing was done.
On October 11, 2007, Defendant Kellums confronted Plaintiff and vowed to remove Plaintiff from IAC chairmanship. On January 22, 2008, while standing near the program office and speaking with an institutional coach, Defendant Kellums without provocation slammed his shoulder into the body of Plaintiff such that Plaintiff staggered backwards off balance.
Plaintiff also alleges that on April 27, 2010, the Kern County Superior Court returned Plaintiff's complaint. It was opened or allowed to be opened by Defendant A. Reyes, who exposed its contents to other prison guards to generate retaliation against Plaintiff. As a result of Defendant Reyes's conduct, on April 28, 2010, Defendant Perales directly confronted Plaintiff regarding his prosecution of a lawsuit against a fellow prison guard and threatened Plaintiff if he did not dismiss his suit. Plaintiff's legal files and paperwork were subsequently confiscated, and he was going to be validated as a gang member. Plaintiff alleges a conspiracy by the "greenwall prison gang," also known as California prison guards.
Plaintiff alleges retaliation in violation of the First Amendment, deliberate indifference in violation of the Eighth Amendment, unlawful tampering with a witness and retaliation in violation of 18 U.S.C. §§ 1512 and 1513, state law claim for battery, violation of California Civil Code sections 1708 and 1714, and violation ...