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Lorenzo Fosselman, Jr v. Hidalgo

February 14, 2012

LORENZO FOSSELMAN, JR.,
PLAINTIFF,
v.
HIDALGO, ET AL.,
DEFENDANTS.



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

ORDER DISMISSING PLAINTIFF'S COMPLAINT WITH LEAVE TO AMEND (ECF NO. 1) AMENDED COMPLAINT DUE WITHIN THIRTY DAYS SCREENING ORDER

I. PROCEDURAL HISTORY

On April 8, 2011, Plaintiff Lorenzo Fosselman Jr., 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's Complaint is now before the Court for screening.

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

Plaintiff is incarcerated at the California Department of Corrections and Rehabilitation ("CDC-R"), Centinela State Prison, ("CEN"). (Compl. p. 2, ECF No. 1.) Plaintiff complains that Defendants discriminated against him based on his race, retaliated against him for filing civil rights litigation, denied him access to the courts by limiting his access to the prison library and losing a box of his legal documents and materials, so that his habeas appeal in Fosselman v. Evans*fn1 and his civil rights complaint in Fosselman v. Gibb*fn2 were both dismissed (Compl. at 6.)

Plaintiff names the following Defendants, in their respective individual and official capacities: (1) Hildalgo, correctional sergeant at Wasco State Prison ("WSP"), (2) Berry, correctional captain at WSP, (3) Ortega, correctional counselor at WSP, (4) Olsen, correctional senior librarian at Kern Valley State Prison ("KVSP"), (5) Burrell, correctional librarian at KVSP, (6) Does 1-2, correctional officers at WSP, (7) Does 3-4, correctional transport officers, (8) Doe 5, correctional officer, rank unknown. (Id. at 2-3.)

Plaintiff seeks declaratory relief, $5,000 in compensatory damages from each Defendant on each cause of action, $250,000 in punitive damages against each Defendant, and costs. (Id. at 9.)

In December of 2008, Plaintiff was transported from KVSP to Solano State Prison ("SSP"), to attend a settlement conference in Gibbs, taking with him a box of legal documents (Id. at 3.)

While at SSP he received by mail the judgment denying his petition in Evans (Id. at 3-4) and setting an appeal deadline of January 4, 2009. (Id. at 4.)

Following the settlement conference, on December 22, 2008, he was bused back to KVSP with his box of legal documents and the Evans judgment. (Id. at 4.)

During a bus layover at WSP on the way back to KVSP, Defendants Hildago, Berry and Ortega intentionally lost or destroyed his box of legal documents, including evidence in his Gibbs litigation and the Evans judgment. (Id. at 4-6.)

Upon arrival back at KVSP on December 24, 2008, Plaintiff was placed in administrative segregation in retaliation for the Gibbs litigation. (Id. at 4.)

His appeal in Evans was untimely, (Id. at 4), and summary judgment was entered against him in Gibbs, (Id. at 5-6), because, he claims, of the loss of his documents, the conditions in administrative segregation, and Defendants "hinder[ing] his ability to timely file motions, objections, extensions, etc. ... [and preventing] discovery or present[ation of] evidence in opposition." (Id. at 5-6.)

Additionally, he complains that Defendants Olsen, Burrell, and Doe 1, denied him access to the library at KVSP during the period August through September 2010, and otherwise restricted his access to the library to two hours/week, due to "a modified lockdown program which, only affected prisoners of Afrikan decent ...." (Id. at 5.) This occurred "at crucial times; in litigation [seeking review of the adverse judgments in Evans and Gibbs] which, has caused many problems with the court, i.e. ... untimely filings resulting in dismissal of state court petition for review to the California Supreme Court, ... [he was also] forced to file for continuances, causing delays and, dismissals." (Id.)

IV. ANALYSIS

A. Pleading Requirements Generally

To state a claim under Section 1983, a plaintiff must allege two ...


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