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Jerry E. Pollard v. K. Harrington

August 29, 2012

JERRY E. POLLARD,
PLAINTIFF,
v.
K. HARRINGTON, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge

ORDER DISMISSING PLAINTIFF'S AMENDED COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A CLAIM (ECF No. 21) AMENDED COMPLAINT DUE WITHIN THIRTY DAYS

Plaintiff Jerry E. Pollard ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. §1983.

Plaintiff initiated this action on Mary 1, 2009. (Compl., ECF No. 1.) The Court screened Plaintiff's Complaint and dismissed it with leave to amend for failure to state a claim. (ECF No. 16.) Plaintiff filed a First Amended Complaint on June 4, 2010. (Am. Compl., ECF No. 21.) No other parties have appeared in the action.

Plaintiff's Amended Complaint is currently before the Court for screening.

I. SCREENING REQUIREMENT

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, malicious," or 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).

42 U.S.C. § 1983 "provides a cause of action for the 'deprivation of any rights, privileges, or immunities secured by the Constitution and laws' of the United States." Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). 42 U.S.C. § 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393--94 (1989).

II. SUMMARY OF COMPLAINT

Plaintiff is currently incarcerated at Salinas Valley State Prison. The events alleged in his Complaint apparently occurred at Kern Valley State Prison ("KVSP"). Plaintif's pleading is less than clear, but appears to allege that the following individuals violated his rights under the First Amendment, Eighth Amendment, Fourteenth Amendment, and the Americans with Disabilities Act:*fn1 1) K. Harrington, KVSP warden, 2) N. Dill, Jr., associate warden, 3) Dr. Sherry Lopez, Chief Medical Officer/ Health Care Manager, 4) J. White, correctional counselor, 5) J. Hart, 6) W.A. Duncan, deputy director of adult institutions 7) C. Sandoval, 8) M. Jeffreys, 9) J. Garcia, correctional counselor, 10) R. Strown, correctional counselor, 11) T. Frazier, 12) C. Waddle, lieutenant sergeant, 13) Dr. Akanno, and 14) Dr. Spaeth, Chief Physician and Surgeon.

Plaintiff factual allegations follow a stream of consciousness format and lack clear dates and times. It is difficult to determine when and how the various events occurred, if and how they are related and which Defendants are charged with which specific wrongdoings. If Plaintiff chooses to file an amended complaint, he must set forth his facts in a clear, chronological manner, focusing on the who, what, when, where, and why of each separate alleged wrong. Failure to do so will make it difficult for the Court to determine if he has a cognizable claim.

Plaintiff's current allegations, interpreted to the best of the Court's abilities, appear to be as follows:

On November 26, 2007, Plaintiff was granted single cell housing status. (Am. Compl. at 4.) Plaintiff has a severe degenerative disc disease which required surgery and keeps him in excruciating pain. (Id. at 9.) Several different committees tried to prevent Plaintiff from maintaining his single cell status. (Id. at 4-6.) A committee composed of Defendants J. Garcia, Strown, and White on an unspecified date reviewed an accommodation chrono from Defendant Akanno and did not find that Plaintiff required a single cell. (Id. at 3-4.)*fn2 Plaintiff informed this committee about Defendant Sandoval's efforts to house disabled inmates with general population inmates and Defendant Garcia, relying on a housing policy written by Defendant Duncan, said there were institutional needs for double celling these two types of inmates. (Id. at 4.)

On September 10, 2008, Defendant White, with others, referred Plaintiff for reevaluation of his single cell status. (Am. Compl. at 4-5.) On September 16, 2008, Defendant Akanno did a full examination of Plaintiff and recommended permanent single cell status. (Id. at 5.) On September 25, 2008, in front of a committee consisting of Defendant Garcia and others, Plaintiff was referred to another committee and given temporary single cell status pending the other committee's decision. (Id.)

On September 26, 2008, Defendant White questioned why Defendant Akanno approved Plaintiff for single cell status. (Am. Compl. at 5.) Defendant Akanno decided not to recommend Plaintiff for single cell status. (Id. at 6.) Defendants White, Dill, Lopez, Spaeth, and Akanno prevented Plaintiff from being approved for single cell status. (Id. at 5-6.)

Defendant Dill violated Plaintiff's due process and ADA rights. (Am. Compl. at 6.)

After denying Plaintiff his single cell status, Defendant Dill tried to move Plaintiff out of his ADA cell and told him that if he refused to accept a cell-mate Plaintiff's property would be taken away and he would be given an indeterminate sentence for the Secured Housing Unit. (Id. at 7.)

The actions of Defendants White and Dill have chilled Defendants Akanno and Lopez, both doctors, and prevented them from properly using their medical skills. (Am. Compl. at 10.)

On November 18, 2008, Plaintiff refused to accept a cell-mate and Defendant Waddle put Plaintiff in Administrative Segregation ("Ad-Seg"). (Am. Compl. at 8.) On the same day, Defendants Sandoval, Jeffreys, and Waddle refused to return Plaintiff to an unspecified facility. (Id.) Plaintiff was released from Ad-Seg on November 19, 2008. (Id.) Plaintiff was in the cell for two months without charges and without his personal property. (Id.)*fn3

At some point after May 17, 2010, Plaintiff had to accept a cell-mate. (Am. Compl. at 8.)

Plaintiff asks for injunctive relief because Defendant Harrington is aware of prison officials taking disabled inmates' property. (Am. Compl. at 9.) Plaintiff asks for declaratory relief; an injunction directing Defendants to provide Plaintiff with a single cell, return his property to him, and transfer him to the California Medical Facility; and Court enforcement of a federal court injunction. (Id. at 3.) Plaintiff also asks for $300,000 from each Defendant as ...


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