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Bob Bejarano v. Kathleen Allison

March 12, 2012

BOB BEJARANO,
PLAINTIFF,
v.
KATHLEEN ALLISON, ET AL.,
DEFENDANTS.



FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED Doc. 27 OBJECTIONS DUE WITHIN THIRTY DAYS

Screening Order

I. Procedural History, Screening Requirement, and Standard

On April 12, 2011, Plaintiff Bob Bejarano ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. Doc. 1. On May 31, 2011, Plaintiff filed a first amended complaint. Doc. 10. On August 29, 2011, the Court consolidated this case with civil action Bejarano v. Allison, 1:11-cv-00873-OWW-DLB (E.D. Cal.), filed on May 31, 2011, for common questions of law and fact. Doc. 9. On September 16, 2011, the Court issued a screening order, dismissing Plaintiff's case, with leave to file an amended complaint. Doc. 12. On February 8, 2012, Plaintiff filed his second amended complaint. Doc. 27.

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 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)), and courts "are not required to indulge unwarranted inferences," Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 129 S. Ct. at 1949.

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). Under § 1983, Plaintiff must demonstrate that each defendantpersonally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S. Ct. at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 129 S. Ct. at 1949-50; Moss, 572 F.3d at 969.

II. Allegations in Plaintiff's Second Amended Complaint

In Plaintiff's second amended complaint, he names Kathleen Allison, Warden; T. Wan, Associate Warden; A.F. Hernandez, Associate Warden; O. Best, Sergeant; M. Bejarano, Sergeant; Ramirez, Correctional Officer, and Regalado, Correctional Officer, who were employed at California Substance Abuse Treatment Facility, Corcoran.*fn1 2d Am. Compl. at 1, 3-4, 7, Doc. 27.

Plaintiff alleges that he was placed on contraband surveillance watch ("CSW") from February 17, 2010 through February 20, 2010, and from April 13, 2010 through April 16, 2010. Id. at 5. On February 17, 2010, Plaintiff was placed on CSW for mere suspicion and harassment. Id. at 6. Plaintiff warned Defendants he was going to file a grievance for harassment and for placing Plaintiff and four (4) other inmates on CSW for mere suspicion. Id. at 5. On March 9, 2010, Plaintiff filed a grievance. Id. On March 22, 2010, Plaintiff threatened Defendant Best that he was going to file a grievance for abuse of authority because on February 20, 2010, Plaintiff and four (4) other inmates were released from CSW, with negative results for contraband. Id. From April 13, 2010 through April 16, 2010, during Plaintiff's placement on CSW, Plaintiff constantly complained to Defendant Best and Defendant Bejarano regarding his harassment and for filing a grievance. Id. After Plaintiff's success and writing his grievance on March 9, 2010 and his interview on March 22, 2010, Plaintiff was placed on CSW a second time on April 13, 2010 and released on April 16, 2010, with negative results for contraband. Id. During his placement on CSW, Plaintiff suffered headaches, muscle cramps, stress, anxiety, depression, fatigue, rashes, and swollen hands. Id. On April 13, 2010, prison authorities placed Plaintiff on CSW in retaliation and abuse of authority because Plaintiff was negative for contraband. Id. at 5-6.

Plaintiff alleges he was subjected to Eighth Amendment cruel and unusual punishment when Defendants twice forced Plaintiff to be on CSW. Id. at 6. Plaintiff was exposed to inadequate shelter, clothing, food, water, sanitation, medical care, and personal safety. Id. Plaintiff was placed in an intake holding cell in a tight, dirty, taped state jumpsuit. Id. The holding cell had no sink or toilet. Id. Plaintiff did not have a blanket or clean clothes. Id. The mattress was dirty, smelled of urine and they were not allowed to practice personal hygiene. Id. No medication for swollen hands and rashes. Id. Plaintiff was subjected to inhumane conditions of confinement for six (6) days. Id. Defendant Best and Defendant Bejarano were responsible for Plaintiff's care and treatment and checked up on Plaintiff, so they knew of the risk but failed to prevent it, after verbal complaints. Id. at 6-7. Defendant Ramirez denied Plaintiff minimal life's necessities, which subjected Plaintiff to inhumane conditions of confinement because Defendant Ramirez is responsible for Plaintiff while on his shift, he monitored Plaintiff, so he knew of the risk but failed to prevent it, after verbal complaints. Id. at 7. Defendant Regalado subjected Plaintiff to inhumane conditions of confinement because Defendant Regalado is responsible for Plaintiff while on his shift, he monitored Plaintiff, so he knew of the risk but failed to prevent it, after verbal complaints. Id. Defendant T. Wan, Associate Warden, subjected Plaintiff to inhumane conditions of confinement because Defendant Wan approved Plaintiff's placement on CSW, so he knew of the risk but failed to prevent it. Id. at 4, 7. Defendant K. Allison, Warden, subjected Plaintiff to inhumane conditions of confinement because Defendant Allison approved Plaintiff's placement on CSW, so she knew of the risk but failed to prevent it. Id. at 7. Defendant A.F. Hernandez, Acting Warden, subjected Plaintiff to inhumane conditions of confinement because Defendant Hernandez approved Plaintiff's placement on CSW, so he knew of the risk but failed to prevent it. Id. Defendants placed Plaintiff on CSW based on oppression and placed Plaintiff on CSW a second time for exercising his rights, not for reasons of safety and security. Id. at 8. The denials of prison grievances were in bad faith. Id. For relief, Plaintiff seeks compensatory and punitive damages. Id. at 4.

III. Legal Standard and Analysis for Plaintiff's Claims

A. First Amendment Retaliation

Allegations of retaliation against a prisoner's First Amendment rights to speech or to petition the government may support a section 1983 claim. Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985); see also Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989); Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995). "Within the prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal. Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005); accord Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009).

Plaintiff does not state a cognizable claim for First Amendment retaliation against any Defendants. Plaintiff states that on April 13, 2010 through April 16, 2010, he was placed in CSW for retaliation of filing a grievance on March 9, 2010. 2d Am. Compl.at 5. Plaintiff states that on March 22, 2010, Plaintiff threatened Defendant Best that he was going to file a grievance for abuse of authority because on February 20, 2010, Plaintiff and four (4) other inmates were released from CSW, with negative results for contraband. Id. From April 13, 2010 through April 16, 2010, during ...


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