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Kenny Calihan v. G. Giurbino

April 4, 2012

KENNY CALIHAN,
PLAINTIFF,
v.
G. GIURBINO, ET AL.,
DEFENDANTS.



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

ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL AND DISMISSING ACTION, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM UNDER SECTION 1983 (Doc. 1)

ORDER THAT DISMISSAL IS SUBJECT TO 28 U.S.C. § 1915(G)

First Screening Order

I. Screening Requirement and Standard

Plaintiff Kenny Calihan, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on May 2, 2011. 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).

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, but 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. Discussion

A. Allegations

Plaintiff, who is currently incarcerated at Mule Creek State Prison in Ione, California, brings this suit against Director G. Giurbino, Associate Director K. Harrington, Chief Psychologist A. Eargle, Chief T. Rothchild, and Classification Services Unit Counselor P. Kennedy arising out of their decision to relinquish him from Departmental Review Board (DRB) control. Plaintiff seeks the appointment of counsel and an order mandating that his DRB control status be reinstated.

In 1989-1990, Plaintiff testified against a Mexican Mafia gang member charged with triple homicide, which resulted in the placement of an open contract on Plaintiff's life and led to approval to transfer Plaintiff to a Federal Bureau of Prisons facility. In 1991, after Plaintiff was released on parole and then returned to the California Department of Corrections and Rehabilitation, he was placed in a protective housing unit (PHU) by the DRB, which maintained "transfer control" over Plaintiff.

On March 30, 2010, Plaintiff requested a non-adverse transfer from the PHU at California State Prison-Corcoran to the sensitive needs yard (SNY) at Mule Creek State Prison, but he made it clear that he would agree to the transfer only if the DRB retained transfer control over him. Plaintiff was assured that he would remain a DRB transfer control case. On October 21, 2010, the DRB approved Plaintiff's request to transfer to the SNY at Mule Creek State Prison, but in doing so, it also relinquished transfer control over Plaintiff.

Plaintiff alleges that the decision to relinquish DRB transfer control over him was a big mistake which must be corrected and that he never would have asked for/agreed to the transfer if he ...


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