Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Timothy Howard v. D. L. Deazevedo

February 20, 2012

TIMOTHY HOWARD,
PLAINTIFF,
v.
D. L. DEAZEVEDO, ET AL.,
DEAZEVEDO, PAZ, STEPHENS, AND JAMES DEFENDANTS.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

FIRST SCREENING ORDER REQUIRING PLAINTIFF TO EITHER FILE SECOND AMENDED COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON COGNIZABLE CLAIMS AGAINST DEFENDANTS (Doc. 9) THIRTY-DAY DEADLINE

First Screening Order

I. Screening Requirement and Standard

Plaintiff Timothy Howard, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on January 20, 2011. On August 17, 2011, Plaintiff filed an amended complaint as a matter of right. Fed. R. Civ. P. 15(a).

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). Plaintiff's complaint, or any portion thereof, is subject to dismissal if it is frivolous or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); 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 Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). While a plaintiff's allegations are taken as true, courts "are not required to indulge unwarranted inferences." Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).

While prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, the pleading standard is now higher, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted), and to survive screening, Plaintiff's claims must be facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at __, 129 S.Ct. at 1949 (quotation marks omitted); Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at __, 129 S.Ct. at 1949 (quotation marks omitted); Moss, 572 F.3d at 969.

II. Plaintiff's Claims

A. Summary of Allegations

Plaintiff, who is currently incarcerated at California Correctional Institution in Tehachapi, brings this action against Correctional Officers D. L. DeAzevedo, P. Paz, B. Stephens, and F. Carreon, Correctional Lieutenant D. James, Correctional Sergeant M. Jones, and Registered Nurse S. Oder for violating his rights in 2010 while he was at California Substance Abuse Treatment Facility and State Prison in Corcoran. Plaintiff seeks damages and declaratory relief for the violation of his civil rights under the First Amendment, the Eighth Amendment, and the Due Process Clause of the Fourteenth Amendment of the United States Constitution, and under the California Civil Code.

On March 8, 2010, Plaintiff and four other inmates held their exercise cages "hostage" by refusing to exit the cages until they could speak with Lieutenant Childs and Sergeant Plunkett about the abuses of prisoners' rights by Defendants DeAzevedo, Paz, and Stephens, and other staff members, which they succeeded in doing.

The next day, when Plaintiff was on the administrative segregation exercise yard, Defendants DeAzevedo, Paz, and Stephens retaliated against him for complaining about them by searching his cell and confiscating his canteen items and legal papers, leaving his cell destroyed in the process. When Plaintiff returned from the exercise yard and saw the condition of his cell, he refused to give up his handcuffs to his escorting officer, Hopkins. Sgt. Plunkett arrived and told Plaintiff he needed the handcuffs and Plaintiff could write an inmate appeal, which Plunkett would place on the desk of Defendant James. Plaintiff complied and thereafter drafted an inmate appeal, which Sgt. Plunkett placed on Defendant James' desk, along with appeals by two other inmates whose cells were also tossed for complaining the previous day. However, Defendant James did nothing about the appeals.

On March 10, 2010, Plaintiff was transported to Kings County Superior Court in Hanford for court proceedings and when he returned, his appeal from the day before was laying on his bed, answered by Defendant DeAzevedo.

On March 17, 2010, Plaintiff was issued a serious rules violation report (RVR) by Defendant DeAzevedo for threatening staff. In the RVR, Defendant DeAzevedo falsely stated that on March 10, 2010, at 11:30 a.m., Plaintiff told DeAzevedo that he was going to get Defendants Paz and Stephens for searching his cell and taking his property. In response to the RVR, Plaintiff submitted an appeal against Defendants DeAzevedo, Paz, and Stephens for issuing a false RVR against him and he stated in the appeal that he had been in Hanford for court on March 10, 2010. The appeal was ripped up by Defendant DeAzevedo.

On April 6, 2010, Defendants DeAzevedo, Paz, and Jones removed the name tag from the back of Plaintiff's wheelchair and moved it to another inmate's wheelchair. When Plaintiff exited his cell the same day, he almost fell to the floor due to the old, busted, hazardous wheelchair Defendants DeAzevedo, Paz, and Jones provided for him. On April 7, 2010, Plaintiff submitted another inmate appeal against Defendants DeAzevedo, Paz, and Jones, complaining they were retaliating against him and about the dangerous wheelchair. Defendant DeAzevedo responded to the appeal and denied any retaliation, stating that the ADA nurse, Defendant Oder, told him to issue Plaintiff that wheelchair.

On April 9, 2010, Plaintiff submitted another inmate appeal grieving the same issues but adding to the appeal Defendant Jones, whom he inadvertently failed to include previously, and Defendant Oder.

On April 20, 2010, Plaintiff cuffed up for court, as directed, but when he went to sit in his wheelchair to exit the cell, he tripped over the broken footrest, slipped, and flipped forward over his walker, landing on top of the walker and injuring his groin, head, and left shoulder. As Plaintiff was lying on the floor in severe pain, Defendants DeAzevedo, Paz, Stephens, Jones, James, and Carreon just looked at him and thought it was funny. As other people arrived, Defendant James ordered them to leave, and Defendants DeAzevedo and Paz dragged Plaintiff out of his cell by his legs. Plaintiff requested medical aid, but his request was denied by Defendants DeAzevedo, Paz, Stephens, Jones, James, and Carreon. As Plaintiff repeatedly requested medical attention, he was told to shut up by Defendants Jones and James. At Defendants Jones and James' direction, Plaintiff was picked up, placed in his wheelchair, and wheeled to "receiving and release" by Defendants DeAzevedo, Paz, Stephens, and Carreon.

On April 21, 2010, Plaintiff was seen during "doctors's line" for a different issue by T. Byers, a physician's assistant. Byers saw Plaintiff's obvious injuries, which included a swollen forehead and blood in his urine, and examined him. Byers documented the injuries, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.