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Vincente Solomon v. M. Carrasco

August 27, 2012

VINCENTE SOLOMON,
PLAINTIFF,
v.
M. CARRASCO, ET AL., THIRTY-DAY DEADLINE
DEFENDANTS.



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

FIRST SCREENING ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND (Doc. 1)

First Screening Order

I. Screening Requirement and Standard

Plaintiff Vincente Solomon, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on September 1, 2011. The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an 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, 678, 129 S.Ct. 1937 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (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) (internal quotation marks and citation omitted). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 556 U.S. at 678.

Under section 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, 556 U.S. at 678-79; 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, 556 U.S. at 678; Moss, 572 F.3d at 969.

II. Discussion

A. Summary of Allegations

Plaintiff was incarcerated at California Correctional Institution (CCI) in Tehachapi when the events at issue in this action occurred. Plaintiff names Chief Deputy Warden M. Carrasco; Sergeants C. Turner and B. Mello; Correctional Officers J. Heil, Cable, Hollins, Blakemanship, Syner, and Cinch; Correctional Counselors Cassaway and M. Dailo; Lieutenant R. A. Gonzales and D. Crounse; and Inmate Appeals Chief N. Grannis as defendants. Plaintiff seeks damages and injunctive relief, but since Plaintiff is no longer incarcerated at CCI, he is limited to seeking damages.*fn1

Plaintiff separates his allegations into four "claims." In claim one, Plaintiff alleges that following his arrival at CCI on March 12, 2008, Defendant Heil told him on March 19, 2008, that he would be getting his medical appliances and legal work within seven days, but he never received them. On April 17, 2008, Plaintiff was told by Defendant Cable and Correctional Officer Wells that a lot of his property was missing and he needed to "get with" Defendant Mello and file an appeal so they could investigate and re-inventory his property. (Doc. 1, Comp., p. 3.) Plaintiff alleges that once he exhausted his state remedies, he had fifty-five days to mail his property home. Plaintiff alleges that Defendant Mello told Defendants Cable and Heil to re-inventory Plaintiff's property and inform him what was missing.

On April 25, 2008, Defendant Heil told Plaintiff that all of his property had been destroyed. The previous week, Defendant Heil had been told to mail Plaintiff's thousands of photos, three photo albums, and jewelry home, and Plaintiff had signed three trust withdrawal slips. Defendant Heil lied and first said Plaintiff had not done so, but then said Plaintiff did not have enough funds. Plaintiff alleges that he had fifty-five days to send his property home, but Defendant Heil was angry because Defendant Mello had made him re-inventory the property, so he destroyed it.

In claims 2 and 3, Plaintiff alleges that on May 28, 2008, he was "illegally" retained in the (Security Housing Unit) SHU by Defendant Carrasco for eight months. (Comp., p. 4.) Plaintiff alleges that he was retained in the SHU in retaliation for exercising his First Amendment rights, and he also alleges that he was retained based on some old confidential informant forms from 2005. (Comp., p. 4.) Plaintiff alleges that Defendant Carrasco could have referred him to the Departmental Review Board for three years and did not, but once he started filing grievances against her staff, "all of a sudden" he had enemy concerns after completing his SHU term. (Id., p. 5.) Plaintiff alleges that Defendant Carrasco allowed her staff to destroy his property every time he exercised his First Amendment rights by filing an inmate appeal; and she refused to acknowledge and report her officers, Defendants Hollins, Blakemanship, Citch, and Syner, who told the blacks, Mexicans, and Hispanics that Plaintiff was a snitch working for CDCR.

Plaintiff alleges that he was told per article 43 of the Departmental Operations Manual, he could not have his ASU/SHU allowable property. Plaintiff filed an appeal and requested a copy of article 43, which clearly stated he was allowed to have his television, canteen items, and legal work. Plaintiff caught Defendants Carrasco, Zanchi, and Cassaway in a lie, but they still denied him his food, television, and property. Plaintiff alleges that all the other inmates in the building pending DRB referral were given their televisions, food, and property except for him. Plaintiff asked for his money back since his food items were going to spoil.

Plaintiff alleges that Defendant Turner lied to him on November 24, 2008, and said he was going to get his property but they were short of staff. Defendant Crounse lied to him on December 24, 2008, and said that Plaintiff did not say which items were missing. On March 5, 2009, Defendant Gonzales lied when he told Plaintiff they lost and destroyed his property because Plaintiff did not give them the amount.*fn2

Plaintiff was denied compensation for his lost or destroyed property. Plaintiff alleges that there existed a clear pattern of repeated abuse of power and a total disregard for his constitutional rights. Plaintiff alleges that every time he filed an inmate appeal on any of Defendant Carrasco's officers, they retaliated against him, tried to intimidate him, and destroyed his property.

Finally, in claim 4, Plaintiff alleges that he was denied outdoor exercise from May 28, 2008, through December 2008; he has a dry skin disease and was denied his "cosmetics," including lotion and deodorant; he is allergic to wool blankets and he was denied cotton blankets; he was not allowed to watch television; and he was denied participation in weekly movie night, and educational and religious programs. (Comp., p. 7.) Plaintiff also alleges that he was diagnosed with plantar fasciitis on April 16, 2008, and he has medical chronos for soft shoes and arch supports, as well as ...


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