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Bernie Briggs v. D. Foston

February 9, 2012

BERNIE BRIGGS,
PLAINTIFF,
v.
D. FOSTON, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF PLAINTIFF'S ACTION FOR FAILURE TO STATE A CLAIM (DOC. 1) OBJECTIONS, IF ANY, DUE WITHIN TWENTY-ONE DAYS

Findings And Recommendations

I. Background

Plaintiff Bernie Briggs ("Plaintiff") is a prisoner in the custody of the California Department of Corrections 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 on June 29, 2011, in the Sacramento Division of this court. Doc. 1. On July 6, 2011, the action was transferred to the Fresno Division of this court. Doc. 5.

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, 556 U.S. 662, 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 to relief 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.

II. Summary Of Complaint

Plaintiff was previously incarcerated at Corcoran State Prison, located in Corcoran California, where the events giving rise to this action occurred. Plaintiff names as Defendants D. Foston, Chief of the Inmate Appeals Branch; R. Davis, Appeals Examiner; and I. Sanchez, correctional officer.

Plaintiff alleges the following: On November 18, 2010*fn1 , at approximately 7:45 a.m., correctional officer I. Sanchez refused to feed Plaintiff his breakfast or provide him with lunch. Plaintiff contends that D. Foston and F. Davis condoned officer Sanchez's actions within the Director's level appeal decision.

According to exhibits submitted with the complaint, Plaintiff filed an inmate appeal form ("CDC 602 appeal") on October 22, 2010. He complained that correctional officer Sanchez refused him breakfast and lunch because he did not hear the floor officer "mention for inmates to turn on their cell light." When correctional officer Sanchez passed him, Plaintiff told her that he did not receive his breakfast tray or lunch and his light was on while she was at his cell door. Correctional officer Sanchez reportedly responded, stating "Your [sic] not getting anything you're assed out, and if you want to eat talk to a sergeant because I'm not giving you anything."

Plaintiff asked her to call a sergeant and she replied, "Not on my watch." Plaintiff claimed that correctional officer Sanchez's behavior was rude and disrespectful and her actions were cruel and unusual. Exhibit B to Complaint.

On April 21, 2011, D. Foston and R. Davis denied Plaintiff's CDC 602 appeal at the Director's Level. Exhibit A to Complaint.

Plaintiff asserts a violation of his Eighth Amendment rights and requests ...


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