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Pascual Gosselin v. J. Tilton

September 25, 2012

PASCUAL GOSSELIN,
PLAINTIFF,
v.
J. TILTON, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER REQUIRING PLAINTIFF TO EITHER FILE AMENDED COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON CLAIMS FOUND TO BE RESPONSE DUE WITHIN THIRTY DAYS COGNIZABLE (ECF No. 1)

Screening Order

I. Screening Requirement

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 filed has consented to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636 (c).

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).

"Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions," none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002); Fed. R. Civ. P. 8(a). Pursuant to Rule 8(a), 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). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. However, "the liberal pleading standard . . . applies only to a plaintiff's factual allegations." Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). "[A] liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled." Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).

II. Plaintiff's Claims

Plaintiff, an inmate in the custody of the California Department of Corrections and Rehabilitation (CDCR) at CSP Corcoran, brings this civil rights action against defendant correctional officials employed by the CDCR at CSP Corcoran. Plaintiff names the following individual defendants: Warden D. Adams; Administrative Officer D. Leon; Captain M. Jennings; Lt. R. Hubach; Sergeant J. Tabor; Sgt. D. Latraille. Plaintiff also names CDCR Secretary James Tilton.

Plaintiff's claims in this action stem from an attempt to strip search Plaintiff on the prison yard. On March 15, 2008, during yard recall, Plaintiff was ordered to "strip out" in the outdoor yard cage. Plaintiff alleges that the cage was "filthy . . . filled with insects and bird feces and in plain view of a yard of inmates including staff of the opposite sex." Plaintiff told staff that he was willing to submit to a strip search indoors in the unit holding cages "to afford some measure of privacy and dignity." Plaintiff explained to staff that the inmates on morning yard were stripped searched indoors. Plaintiff's request was denied, and Plaintiff was told that he would not leave the outside cage until he submitted to a strip search.

Plaintiff alleges that he was left outside in the cold weather from 3:30 p.m. until 4:30 a.m., as he would not submit to a strip search. At some point, Plaintiff requested a sack lunch, which was denied by Sgt. Vogel, who told Plaintiff that he would not get a sack lunch until he submitted to a strip search.

Plaintiff further alleges that while he was on the exercise yard, Lt. Hubach "ordered the complete removal of all my personal and state property, (i.e. state issue clothing, sheets, blankets, toilet papery, hygiene, inter alia.)" Plaintiff alleges that "there was no notification, disciplinary hearing that constituted the taking of my property." Plaintiff alleges that his property was taken in retaliation for his refusal to submit to a strip search.

At 4:30 a.m. on March 16, 2008, Plaintiff was forced to submit to a strip search. Plaintiff alleges that the following occurred:

At approximately 4:30 a.m., on March 16, 2008,, . . . Lt. Hubach ordered unlawfully and in violation of prison policy the use of unnecessary and excessive force against me, for the sole purpose of forcing me to perform an undignified and degrading public strip search. (This authorization order was given by D. Leon. (A.O.). Seconds after Lt. Hubach's order, Sgt. Latraille and Sgt. Tabor commenced a vicious and relentless attack on Plaintiff with the use of pepper spray. A total of (9) canisters from (O.C. MK 9; O.C. MK 46; O.C. Mk 505) were implemented against Plaintiff.

Plaintiff's entire body, face, back, legs, genitals and anus were completely saturated with multiple and prolonged burst of toxic chemicals. The sudden and drastic change in temperature on my body from cold to burning was brutal. My body was completely on fire! When Plaintiff could no longer tolerate the burning, he submitted to the degrading practice Defendants desired, there after Plaintiff was stripped naked, and escorted naked to the front of Building 4B3R, where I was to be decontaminated, only to find to my horror that I would be ...


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