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Larry Joe Percival v. Sgt. J. Nail

August 31, 2011

LARRY JOE PERCIVAL,
PLAINTIFF,
v.
SGT. J. NAIL, ET AL., DEFENDANTS.



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

ORDER FINDING CLAIM AGAINST SGT. J. NAIL COGNIZABLE AND DISMISSING ALL OTHER CLAIMS (ECF No. 21) SCREENING ORDER

I. PROCEDURAL HISTORY

On September 28, 2009, Plaintiff Larry Joe Percival, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. (ECF No. 1.) Plaintiff consented to Magistrate Judge jurisdiction on November 19, 2010. (ECF No. 13.)

Prior to initial screening, the Court granted Plaintiff's Motion to Amend his Complaint. (ECF. No. 16.) Plaintiff's First Amended Complaint, filed January 13, 2011 (ECF No. 17), was screened and dismissed, with leave to amend, on March 1, 2011. (ECF No. 18.) Similarly, his Second Amended Complaint, filed March 18, 2011 (ECF No. 19), was dismissed with leave to amend. (ECF No. 20.) Plaintiff's Third Amended Complaint, filed April 15, 2011, is now before the Court for screening. (ECF No. 21.)

II. SCREENING REQUIREMENT

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, malicious," or 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).

Section 1983 "provides a cause of action for the 'deprivation of any rights, privileges, or immunities secured by the Constitution and laws' of the United States." Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989).

III. SUMMARY OF COMPLAINT

The Third Amended Complaint alleges the following named defendants violated Plaintiff's First Amendment rights: Sergeant J. Nail, Captain R. Fisher, and Correctional Officer R. Garza.

Plaintiff alleges the following:

On November 6, 2008, Plaintiff watched as Defendant Nail physically assaulted a handcuffed, wheelchair-bound inmate. Afterwards, Defendant Nail told Plaintiff "that if [Plaintiff] had anything to say about it he would have [Plaintiff] shot for assallting [sic] staff." (Compl. at 3.) Plaintiff wrote to the Director of Corrections "specifically complaining of SGT J. Nail[']s actions." (Id.) Plaintiff was interviewed about the letter two weeks later; Defendant Nail knew the subject of the interview and when it took place. (Id.) During the interview, Defendants Nail and Garza conducted a search of Plaintiff's cell and found a weapon that Defendant Nail had planted. Plaintiff received a rules violation, was found guilty, and lost three hundred sixty-five days of good time credit. (Id.)

Plaintiff's cell was searched by Defendant Nail a second time on January 6, 2009. (Id. at 4.) After the search, Plaintiff found a razor planted by Nail in his cell. Plaintiff sent the razor along with a grievance describing Nail's actions to the Director of Corrections. The grievance was forwarded to Defendant Fisher for investigation. "Fisher accused [Plaintiff] of lying and . . . then wrote [Plaintiff] up for possesion [sic] of a weapon . . . ." (Id.)

Plaintiff alleges that the aforementioned conduct "had a chilling effect on [his] First Amendment rights and furthered no legitimate penological concerns." (Id.at 3, 4.) The ...


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