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De Shawn Malone v. Correctional Sergeant Bounville

April 30, 2012

DE SHAWN MALONE,
PLAINTIFF,
v.
CORRECTIONAL SERGEANT BOUNVILLE, DEFENDANT.



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

ORDER DISMISSING COMPLAINT WITHOUT LEAVE TO AMEND

Screening Order

I. Background

Plaintiff De Shawn Malone ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. He filed his complaint on May 2, 2011.*fn1 Plaintiff filed a First Amended Complaint on September 27, 2011. Pursuant to the Court's screening order, he filed a Second Amended Complaint ("SAC") on December 12, 2011.

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, 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 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 is currently incarcerated at High Desert State Prison in Susanville, California. The events at issue occurred while Plaintiff was incarcerated at the California Correctional Institution ("CCI") in Tehachapi, California. Plaintiff names Correctional Sergeant Bounville as the Defendant.

Plaintiff explains that he was initially housed at Kern Valley State Prison, where he submitted a health care grievance/appeal ("602 appeal") in August 2010. Soon after, he was transferred to CCI. In October 2010, the 602 appeal was routed to Plaintiff at CCI after a first level response. Plaintiff was dissatisfied with the decision and chose to file a second level appeal. On October 13, 2010, he turned over his 602 appeal to CO J. Gill, the health care inmate appeal first watch officer.

After time passed without receiving a response, Plaintiff asked CO Carrillo to look into whether the 602 appeal was received at the Inmate Appeals Office. Plaintiff was told to talk to the CO assigned to the housing unit, CO Yubeta. CO Yubeta told Plaintiff that Defendant Bounville receives the inmate appeals from the first watch officers and then routes them. He was also told by counselor Lopez that it was Defendant's responsibility to log inmate appeals and route them out. On November 8, 2010, Plaintiff asked to speak to Defendant Bounville and CO Yubeta said he would relay the request. Defendant did not come to speak with Plaintiff.

On November 11, 2010, Plaintiff sent a form to Defendant inquiring about missing and/or delayed 602 appeals. Defendant did not respond.

On November 18, 2010, Plaintiff had a chance encounter with Defendant and explained that his 602 appeal had not been addressed and returned. Defendant stated that he did not remember Plaintiff's specific 602 appeal, but that he would "check into it."

On November 22, 2010, Plaintiff received a notice from the Inmate Appeals Coordinator that his 602 appeal would be screened out due to a time delay. He asked CO Gill about the delay, and Gill told him that after he collects the inmate appeals, he gives them to the "booth cop," who then stamps them and gives them to second watch sergeant Defendant Bounville.

Plaintiff returned the notice to the Appeals Coordinator with an explanation as to where the delay may have originated from and that it was not Plaintiff's fault. In December 2010, Plaintiff received ...


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