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Tradell M. Dixon v. Kelly Harrington

September 6, 2012

TRADELL M. DIXON,
PLAINTIFF,
v.
KELLY HARRINGTON, ET AL., DEFENDANTS.



ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED Doc. 1 THIRTY-DAY DEADLINE

Screening Order

I. Procedural History, Screening Requirement, and Standard

On August 11, 2011, Plaintiff Tradell M. Dixon ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action filed this civil rights action pursuant to 42 U.S.C. § 1983. Doc. 1.

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, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (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). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 556 U.S. at 678.

While 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, the pleading standard is now higher, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). Under § 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.

Section 1983 provides a cause of action for the violation of constitutional or other federal rights by those acting under color of state law. E.g., Patel v. Kent School Dist., 648 F.3d 965, 971 (9th Cir. 2011); Jones, 297 F.3d at 934. For eachdefendant named, plaintiff must show a causal link between the violation of his rights and an action or omission of the defendant. Iqbal, 556 U.S. at 678-79; Starr v. Baca, 652 F.3d 1202, 1205-06 (9th Cir. 2011); Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009). There is norespondeat superior liability under § 1983, and each defendant may only be held liable for misconduct directly attributed to him or her. Iqbal, 556 U.S. at 677-79; Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009).

II. Plaintiff's Complaint

In Plaintiff's complaint, he names defendants Kelly Harrington, Warden; M.D. Biter, Chief Deputy Warden; J.R. Garza, Captain; B. Daveiga, Appeals Coordinator; Doe 1 Associate Warden; Doe 2 Correctional Counselor; Doe defendants, classification staff representatives; and Does 5-1000, who were employed at Kern Valley State Prison ("KVSP"). Plaintiff also names Doe 3 Warden; Doe defendants, classification staff representatives; and Doe 4 Correctional Counselor, who were employed at California State Prison, Delano. Compl. at 1, 4-5, 9, Doc. 1.

On December 6, 2004, Plaintiff was involved in an altercation with inmate Slack at Folsom State Prison. Id. at 6, 15. Correctional officer Jennifer Smith observed inmate Slack and Plaintiff push each other in the upper chest and shoulder area with their hands. Id. at 15. Plaintiff began to strike inmate Slack in his upper chest and head with his fist approximately 2 to 6 times. Id. Officer Smith ordered Plaintiff and inmate Slack to "get down." Id. As they were complying, inmate Campbell began to strike Plaintiff with his fist in the upper chest area. Id. Officer Smith ordered inmate Campbell to "get down," but he refused her orders. Id. Officer Smith then pepper sprayed inmate Campbell. Id.

On December 7, 2004, Plaintiff was placed in administrative segregation pending investigation of Plaintiff being a victim of a battery. Id. at 16. A confidential memorandum dated December 7, 2004 indicated that Plaintiff may again be assaulted unless he is removed from general population. Id. As a result of the assault, inmates Slack and Campbell were classified as enemies of Plaintiff. Id. at 6. Plaintiff alleges that inmates Slack and Campbell were prohibited from being housed at the same prison as Plaintiff, but he does not submit any documents to support this allegation. Id. Plaintiff was subsequently transferred to Ironwood State Prison. Id.

In May 2009, Plaintiff was housed at KVSP in Facility D. Id. Doe 2 Correctional Counselor called Plaintiff into the office and informed him that inmate Slack had been transferred to KVSP. Id. The Counselor asked Plaintiff to sign a "marriage chrono," stating Plaintiff and inmate Slack are still enemies. Id.*fn1 Plaintiff refused to sign the marriage chrono because it would show that they were not enemies. Id. Plaintiff told the Counselor that he feared for his life from Slack's presence at the facility. Id. The prison then transferred inmate Slack to Facility B. Id. Plaintiff thought inmate Slack was transferred out of the prison. Id.

On June 22, 2010, Plaintiff was moved from Facility D to Facility B, due to Facility D converting to a "sensitive needs yard." Id. at 7. Plaintiff was unaware that inmate Slack was housed in Facility B. Id.

On July 7, 2010, Correctional Officer J. Gonzalez and P. Gonzalez observed Plaintiff and inmate Slack striking one another in the facial and upper torso area with closed fists. Id. at 33. The officers approached and ordered the inmates to "get down" but they did not comply. Id. The officers then pepper sprayed both inmates and they complied. Id. Plaintiff suffered an abrasion to the back of his left hand and a reddened facial area. Id. at 24, 27. Inmate Slack suffered an abrasion to the inside of his right wrist. Id. at 25, 27. Plaintiff and inmate Slack are both "East Coast Crips." Id. at

27. P. Gonzalez issued Plaintiff and inmate Slack a rules violation report ("RVR") for fighting. Id. at 20, 28. On July 27, 2010, Lieutenant Morales held a hearing for the RVR and found Plaintiff not guilty, due to staff error in failing to ...


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