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Virgil Elbert v. Gary Swarthout

August 24, 2012

VIRGIL ELBERT, PLAINTIFF,
v.
GARY SWARTHOUT, ET AL., DEFENDANTS.



FINDINGS AND RECOMMENDATIONS

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Pending before the court is defendants' motion to dismiss. For the reasons explained below, the undersigned recommends that the motion granted with leave to amend.

I. Background

This action proceeds on the amended complaint filed July 6, 2011. Dckt. No. 14.

Plaintiff alleges that defendants violated his rights under the Eighth Amendment to the U.S. Constitution by either requesting or approving his placement on "Contraband Surveillance Watch" ("CSW") at California State Prison, Solano ("CSP-Solano") for nine days in early 2010. Id. Specifically, plaintiff alleges:

On January 27 2010 I was housed in building 5 Cell 118 on Solano's 1 yard. At approximately 12:30 hours Officer's C. Palwick and S. Feudner stormed my cell. After my cellmate flushed a half ounce of heroin he was released and I was taken to what is known as potty watch or Contraband Surveillance Watch.

A false report was written up about what happened on 1/27/2010 and I was placed on Contraband Surveillance Watch (hereinafter CSW) by Officer's C. Palwick and S. Feudner.

Because of the unconstitutional conditions of "CSW" before I could be placed on "CSW" it required approval from Gary Swarthout (warden), R. Durfey (Sgt), C. Martinez (Sgt) and James Lee (CT). . . .

After being transferred [sic] to the hole for (CSW) I was then strip searched for the 3rd time that day. After I was searched I was dressed in 2 pairs of boxers one pair backwards and then taped to the hair & skin on my legs causing much pain & discomfort. I then was placed in 2 T-shirts that were tucked in to the boxer shorts and taped together. I was then taped around the sleeves of the 2 T-shirts and placed in 2 full body jump suits one backwards. The jump suits were taped to my 2-pair of sox taped to the skin on my arms and then taped so tightly around the waist that it increased pain in my already broken rib and forced me to have difficulty breathing.

Next I was placed in another jumpsuit to hide all the tape[.] Shackled at the waist with a large master lock located behind the small of my back and shackled tightly at the ankles. I was placed in a cell with only a mattress heater turned all the way up and forced to lay flat on my back.

The ankle shackles caused blisters on my Akeles [sic] tendon and the master lock & chains I was forced to sleep on caused intense pain in my herniated disk in my lower back.

I have a condition known as (IBS) that causes me to have irregular bowel movements & diearihha [sic] [.] While on CSW I was forced to use the rest room in front of up to 5 officers while being mocked and humiliated and often in front of female officers.

I was told that the only way to get off (CSW) is to give 3 clean bowel movements at least the size of a fist and that the first 24 hours don't count and that I can only use the rest room once a day[.]

My IBS prevents me from taking large bowel movements and forces me to have diahrriah [sic] yet none of my medical conditions or injurys [sic] were ever takin [sic] into consideration.

I was left on CSW for 9 days and during this time I was not allowed to shower. I was not allowed to brush my teeth. I was not allowed to wash my hands. I remained shackled at all times and was forced ...


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