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Timothy D. Wilkins v. T. Freitas

October 15, 2011



Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights action pursuant to 42 U.S.C. § 1983. This proceeding was referred to the undersigned magistrate judge in accordance with Local Rule 302 and 28 U.S.C. § 636(b)(1).

I. Procedural History

Plaintiff filed his complaint on February 4, 2009. On October 26, 2009, the court determined that service was appropriate for defendant T. Freitas and ordered plaintiff to submit documents for service on the defendant. On November 16, 2009, the court ordered the U.S. Marshal to service process on defendant Freitas.

On March 8, 2010, defendant Freitas filed a motion to dismiss the complaint on the grounds that it failed to state a claim upon which relief could be granted. Specifically, defendant argued that plaintiff's complaint failed to allege facts showing that defendant Freitas had violated plaintiff's right to be free from cruel and unusual punishment by being deliberately indifferent to a substantial risk of serious harm to plaintiff.

However, on March 9, 2010, plaintiff filed an amended complaint. Under the version of Rule 15(a) of the Federal Rules of Civil Procedure in effect at that time, plaintiff was entitled to file an amended complaint once as a matter of course any time before a responsive pleading was served. Accordingly, on October 26, 2010, the court denied defendant's motion to dismiss as moot. (Order filed Oct. 26, 2011 (Doc. No. 20) at 2.) However, the court also noted in the order that plaintiff's amended complaint failed to allege sufficient facts in support of his claims. (Id. at 2-3.) Therefore, the court dismissed the amended complaint and granted plaintiff leave to file a second amended complaint. (Id.) Finally, the court advised plaintiff of the legal standards governing an Eighth Amendment claim of the nature he was attempting to allege. (Id. at 3-4.)

II. Plaintiff's Second Amended Complaint

In his second amended complaint, as in his original and amended complaints, plaintiff claims that defendant correctional officer Freitas violated his Eighth Amendment rights by subjecting plaintiff to imminent danger by placing him in debt to another inmate. In this regard, plaintiff alleges as follows. On March 4, 2008, defendant Freitas and another correctional officer searched plaintiff's cell and confiscated a compact disc (CD) player which belonged to inmate Watson. (Sec. Am. Compl. (Doc. No. 21) at 3.) Plaintiff asked the officers to return the CD player to inmate Watson but defendant Freitas refused and in doing so allegedly made the following comment to plaintiff:

As a C.O. there is only so many things that I can do to you, but this inmate can do stuff to you I can't, that's why I'm not giving him his CD player back. It's the only way you're going to learn your lesson because you have nothing to lose. If you don't give me something of equal value as this CD player, then you're going to have to work something out with that inmate.

(Doc. No. 21 at 4.) When plaintiff told defendant Freitas that his actions could get plaintiff stabbed, defendant Freitas allegedly replied, "Not necessarily, the choice is yours. If you don't do what you're supposed to do then there's steel." (Id.) When plaintiff was interviewed in connection with a prison grievance he filed over this incident, defendant Freitas continued to "threaten" plaintiff by saying, I'm not giving him [Watson] the CD player back. If you had've [sic] done what I asked you to by giving him your TV or something we wouldn't be where we are now . . . [.] If I wanted I could tell youur [sic] cellie that you told me you could kick his ass . . . and have y'all in there tearing that motherfucker up . . . I don't know how long you have in prison but it won't be pleasant[.]

(Id.) After the confiscation of the CD player, inmate Watson told plaintiff that defendant Freitas wanted to "teach the plaintiff a lesson." (Id.) In addition, inmate Watson "intimidatingly [sic] warned the plaintiff if he didn't get his CD player back, plaintiff owed him $80.00." (Id.) Plaintiff subsequently paid inmate Watson the $80.00 over a period of four months. (Id.)

In addition to his Eighth Amendment claim, plaintiff's second amended complaint also presents a state law negligence claim in which he alleges that defendant Freitas was "grossly negligent when he violated the plaintiff's rights by setting him up to be attacked by another inmate." (Doc. No. 21 at 5.)

Plaintiff seeks $80.00 in compensatory damages, $1,500,000.00 in punitive damages, and $4,500,240.00 as triple damages for intentional misconduct. (Doc. No. 21 at 3.)

As noted above, plaintiff filed an inmate grievance regarding this incident and has attached documentation of the grievance to his second amended complaint. Those documents reflect that at the first level of review, plaintiff's appeal was denied because he was found to be in violation of California Code of Regulations (CCR), Title 15, Section 3192, which provides: an inmate may not exchange, borrow, loan, giveaway or convey personal property to or from other inmates. Violation(s) of this rule may result in disciplinary action, and confiscation and/or disposal of the personal property.

(Doc. No. 21 at 13.) Plaintiff was also informed that he could not submit an appeal on behalf of another inmate for the return of personal property. (Id.) At the Director's Level of review, plaintiff's appeal was denied with reference to CCR 3191(b) which requires an inmate to register his personal property with prison officials or be subject to disciplinary action for possession of property which is not registered. (Doc. No. 21 at 7.) That regulation also provides that unregistered property will be confiscated and "every reasonable effort will be made to determine the rightful owner of the property . . . . [and] returned to its rightful owner unless . . . the inmate's approval to possess the property is rescinded." (Id.) The Director's Level decision in ...

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